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Title: The Law of the Sea - A manual of the principles of admiralty law for students, - mariners, and ship operators
Author: Brinton, Jasper Yeates, Canfield, George L., Dalzell, George W.
Language: English
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Transcriber's Note.
Apparent typographical errors have been corrected. The use of hyphens
and of accents has been rationalised.
Italics are indicated by _underscores_ and bold font by =equal signs=.
Small capitals have been replaced by full capitals. "Oe" ligatures have
been removed.
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.
Text in smaller font in the main body of the work (mostly comprising
comments by the courts on particular cases) has been indented.
Appendix I (A Summary of the Navigation Laws of the United States) has a
separate author and its own Table of Contents. Its sections and
subsections are each preceded by two blank lines.
Appendix II (The Merchant Marine Act of 1920) comprises 39 sections with
section 30 being divided into subsections 30(A) to 30(X). These
subsections, as well as the sections of the appendix, are each preceded
by two blank lines.
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
[Illustration: Publisher's Mark]
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
CHAPTER PAGE
EDITORS' PREFACE v
AUTHORS' PREFACE ix
I. MARITIME LAW 1
1. General Maritime Law 1
2. Sources in United States 1
3. Courts 2
4. Jurisdiction 2
A. The Ship 2
B. The Waters 3
5. Maritime Contracts and Torts 4
6. Personality of Ship 5
7. Limits of Liability 5
8. Equitable Principles 6
9. General Considerations 6
II. TITLE AND TRANSFER 10
1. How Title Acquired 10
2. Registration and Regulation 10
3. Shipbuilding Contracts 10
4. Not Within Admiralty Jurisdiction 12
5. Enrollment and Registration 12
6. Ships Entitled to 12
7. Incidents of Enrollment or Registration 13
8. How Obtained 14
9. Recording of American-built Foreign Ships 16
10. Name 16
11. Sale 17
12. Transfer of Flag and Sales to Foreigners 17
13. Admiralty Sales 18
14. Sales by Trustees and Executors 19
15. Sales by Mortgagee 19
16. Sales by Master 19
17. Sale of Ship at Sea 22
18. Appurtenances 23
19. Warranties and Representations 23
III. OWNERS AND MANAGERS 25
1. Who May Be 25
2. Part-owners 25
3. Corporations 27
4. Majority Interest 28
5. Minority Interest 28
6. Suits Between Part-Owners 30
7. Authority of Owner 30
8. Obligation of Owner 30
9. Liability of Owner 31
10. Temporary Ownership 33
11. Managing Owner 36
12. Compensation and Lien 37
IV. THE MASTER 39
1. Appointment and General Authority 39
2. Personal Liability 41
3. Restriction on Authority 41
4. Rights of Master 43
5. Wages 43
6. Lien 44
7. Relations to Cargo 45
8. Power to Sell or Mortgage Cargo 46
9. Power to Sell Vessel 50
10. Power to Create Liens 50
11. Duties on Disaster 51
12. Log Book and Protests 52
V. SEAMEN 54
1. Favored in Maritime Law 54
2. Who Are Seamen? 54
3. Contract 55
4. Wages Secured 55
5. Forfeitures and Punishments 55
6. Personal Injuries 56
7. Duties in Disaster 58
8. Offenses of Seamen 59
9. When Entitled to Leave Ship 60
10. Desertion 60
11. Self-Defense 61
12. Lien for Wages 61
13. Shipping Articles 63
14. Wages and Effects 64
15. Protection and Relief 66
VI. CARRIAGE BY SEA 69
1. Common and Private Carriers 69
2. Liabilities 69
3. Seaworthiness 70
4. Loading and Stowage 72
5. Wreck or Stranding 75
6. Arrival and Discharge 76
7. Freight and Demurrage 77
8. Unfair Freight Rates 79
9. Passengers 79
10. Reciprocal Duties 79
11. Baggage 81
12. Personal Injuries 81
13. Loss of Life 83
VII. CONTRACTS OF AFFREIGHTMENT, BILLS OF LADING
AND CHARTER PARTIES 86
1. Definitions 86
2. Seaworthiness 87
3. Deviation 88
4. Perils of the Sea 89
5. Fire 89
6. Restraint of Princes 90
7. Freight 91
(a) Dead Freight 91
(b) When Freight Is Earned 91
8. Contracts of Affreightment 91
9. Bills of Lading 92
10. Statements in Bills of Lading 96
11. Negotiability of Bills of Lading 98
12. Duration of Carrier's Liability 99
13. Exceptions in Bills of Lading 99
14. Valuation 99
15. Notice of Claim 100
16. Nature and Effect of Charter Party 100
17. Subcharters 101
18. Provisions in Charter Parties 101
(a) Safe Port 101
(b) Insurance 102
(c) Redelivery 102
(d) Cancellation and Withdrawal 102
(e) Breakdown Clause 102
19. Lien for Freight and Charter Hire 103
20. Liability for Loss or Damage 104
21. Demurrage and Laydays 105
22. Breach of Charter 106
23. Dissolution of Charter 107
VIII. LIABILITIES AND LIMITATIONS 112
1. Liabilities of Ship 112
2. Liabilities of Owner 112
3. Liabilities of Charterer 113
4. Liabilities of Mortgagee 113
5. Liabilities of Underwriters 113
6. Theories of Limitation 114
7. Contract Limitations 115
8. The Federal Statutes 115
9. "Privity or Knowledge" 117
10. Harter Act 119
11. Insurance 123
12. Single Ship Companies 123
IX. MARITIME LIENS 125
1. How Created 125
2. Essential Value 127
3. Independent of Notice of Possession 127
4. Secret 127
5. Diligence Required 127
6. Rules of Diligence 127
7. Recording Liens on "Preferred Mortgage" Vessels 128
8. Limited to Movable Things 129
9. Priorities 129
10. Lien for Repairs and Supplies 131
11. Not Sole Remedy 134
12. How Divested 134
13. State Liens 135
14. Builders' and Mechanics' Liens 136
15. Foreign Liens 136
16. Enforcement of Liens 137
X. MORTGAGES AND BONDS 138
1. Definitions 138
2. Bottomry Bonds 138
3. Respondentia 140
4. Necessity for Advances 141
5. Mortgages 141
6. Are Mortgages Maritime Contracts? 141
7. When Postponed to Other Liens 142
8. Form 143
9. Recording 144
10. Rights of Mortgagee 144
11. Liabilities of Mortgagee 145
12. Transfer and Payment 145
13. Foreclosure 145
XI. COLLISION 148
1. Definition 148
2. Liability Dependent on Negligence 148
3. Tests of Negligence 149
4. The Regulations 150
5. Damage to Ship 151
6. Damage to Cargo 152
7. Damage to Crew and Passengers 155
8. Contribution 155
9. Division of Damages 155
10. Lien 156
11. Limitation of Liability 157
12. Remedies 157
13. Evidence 158
XII. Towage and Pilotage 159
1. Definition 159
2. Towage Service 159
3. Compensation 160
4. Duty of Tug 160
5. Duty of Tow 165
6. Negligence 165
7. Liability for Damage 168
A. As Between Tug and Tow 168
B. To Third Parties 169
8. Pilots 172
9. Duties 173
10. Authority 174
11. Compensation 174
12. Negligence 175
13. Liability of Ship 177
XIII. SALVAGE AND GENERAL AVERAGE 180
1. Definitions 180
2. What May Be Salved 180
3. Salvor's Lien 181
4. Amount of Reward 182
5. Who May Be Salvors 183
6. Distinction Between Towage and Salvage 184
7. Distribution of Salvage Award 185
8. Distribution of Liability for Payment 186
9. Statutory Regulations 187
10. Instances of Salvage Services 187
11. Distinction Between General and Particular Average 189
12. Essential Elements 189
13. Instances of General Average 190
14. The Adjustment 191
XIV. CRIMES COMMITTED AT SEA 193
1. Definition 193
2. Admiralty Criminal Jurisdiction 193
3. Place of Trial 194
4. Offenses Not Consummated on Shipboard 194
5. Penalties and Forfeitures 195
6. Federal Criminal Code 196
7. Concurrent Jurisdictions 197
8. Limitations of Prosecutions 198
9. Piracy 198
10. Barratry 199
11. Failure to Equip with Radio Telegraph 200
12. Failure to Disclose Liens 200
13. Mutiny 200
XV. WRECKS AND DERELICTS 202
1. Definitions 202
2. Wrecks Under the Common Law 202
3. Wrecks Within Admiralty Jurisdiction 204
4. Liabilities of Owner of Wreck 205
5. Rights of Landowner 205
6. Owner's Rights 206
7. Rights of Government 206
8. Derelicts 207
9. Finders 207
XVI. WHARFAGE AND MOORAGE 209
1. Definition 209
2. Right to Erect 209
3. Duties of Proprietor 210
4. Rights of Proprietor 212
5. Wharfage Compensation 213
6. Lien 214
7. Injuries to Wharves 214
8. Anchorage 215
9. Obstructions to Navigation 216
XVII. ADMIRALTY REMEDIES 218
1. Proceedings in Rem 218
2. When Proceedings in Rem Will Lie 219
3. The Libel 219
4. The Writ or Process 220
5. Owner's Rights 220
6. Default 220
7. Interlocutory Sales 221
8. Intervenors 221
9. Costs and Expenses 221
10. Proceedings in Personam 222
11. Process in Personam 222
12. Proceedings in Limitation of Liability 222
APPENDICES
I. SUMMARY OF NAVIGATION LAWS OF THE UNITED STATES 225
II. THE MERCHANT MARINE ACT OF 1920 263
III. PROTEST 290
TABLE OF CASES 291
INDEX 299
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 Phoenician. It survived the Roman Empire in the traditions of
seafaring men and reappears in the compilation of sea laws which
Coeur-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._ Phoebus, 11 Peters, (U. S.) 175, it appeared that Phoebus
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._ Phoebus, 11
Peters 175, wherein Phoebus 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.
Where the master performs seamen's duties in addition to his own it has
been held he is not entitled to a lien for compensation for such work,
but in some more recent cases such liens have been allowed. There is a
substantial conflict of authority on this point.
=7. Relations to Cargo.=--He has no authority to alter a charter party,
nor to sign a bill of lading for goods not shipped or containing a
misdescription of the cargo. He must not mis-date a bill of lading nor
issue one contrary to the terms of the charter. He must see that the
cargo is well and sufficiently stored in accordance with law and that
the ship is not overladen. The law contemplates that the master himself
must be a competent stevedore. Thus in the leading case of the Niagara,
21 How. 7, it is said:
He (the master) must take care to stow and arrange the cargo, so that
the different goods may not be injured by each other, or by the motion
of the vessel, or its leakage; unless, by agreement, this duty is to be
performed by persons employed by the shipper. In the absence of any
special agreement, his duty extends to all that relates to the lading,
as well as the transportation and delivery of the goods; and for the
faithful performance of those duties the ship is liable, as well as the
master and owners.
Even where the shipper employs the stevedores, it remains the right and
duty of the master to control them if they are endangering the ship's
safety. Thus in the Elton, 83 Fed. 519, where the charter party provided
that the stevedore was to be employed and paid by the contractor and was
to load the steamer under the master's direction, it was said:
At no time does the master lose his proper place in the control of his
ship and everything connected therewith. The stevedore is not an
independent contractor, doing the work, which, when completed, is to be
turned over to the master for his approval or disapproval; but he must
load the steamer at all times under the direction and subject to the
control of the master.
During the voyage and until the goods are delivered he stands as bailee
and has a high degree of responsibility for their safekeeping. He must
pursue the voyage without deviation or delay except for the purpose of
saving life. He must be watchful to protect the cargo, in whole and in
parts, as against deterioration and damage. Safe custody is as much a
part of his duty as safe carriage and delivery. In case of emergency and
necessity he becomes as much an agent of the cargo as of the owner of
the ship and may sacrifice a part for the safety of the whole venture,
or mortgage or sell the same, or tranship it. In the event of peril the
duty and power devolve upon the master to determine whether a jettison
be necessary. As the court said in Lawrence _v._ Minturn, 17 How.
(U. S.) 100:
If he was a competent master, if an emergency actually existed calling
for a decision, whether to make a jettison of a part of the cargo; if
he appears to have arrived at his decision with due deliberation, by a
fair exercise of his skill, and discretion, with no unreasonable
timidity, and with an honest intent to do his duty, the jettison is
lawful. It will be deemed to have been necessary for the common safety,
because the person to whom the law has entrusted authority to decide
upon and make it has duly exercised that authority.
But though the master may jettison cargo to lighten a ship in peril, he
may not, for that purpose, give cargo away. It is not his to give, and
if he attempts to do so, the donee takes no title and is liable for the
conversion of it as for embezzlement (The Albany, 44 Fed. 431).
The duties and powers of masters of vessels in regard to cargo, as they
develop out of the exigencies of navigation and the varied situation
abroad, are much broader than those of the agents of carriers by land,
because the circumstances are so very different. Such a master has
authority to do whatever is really necessary to preserve the interests
of an absent owner or consignees. He is bound to the exercise of
diligence and good faith to give the owner or consignee timely
information; and to follow instructions if they can be obtained. If his
possession of the goods is interfered with by legal process or seizure,
he must give notice, if possible, and in the meantime take all proper
steps to protect or recover the goods. He may be bound to take legal
proceedings or answer for the damages caused by his failure to do so.
=8. Power to Sell or Mortgage Cargo.=--This power to dispose of the
cargo arises out of the necessity of the case. The duty is to complete
the voyage, if possible. Money for repairs and expenses can frequently
only be secured by disposing of some of the property in the master's
charge. If so, he has the requisite power; of course, he should first
realize what he can on the credit of the ship and freight-money but
after this he may resort to the cargo and pledge or even sell it
accordingly. In the leading case of Post _v._ Jones, 19 How. (U. S.)
150, Mr. Justice Grier said:
It cannot be doubted that a master has power to sell both vessel and
cargo in certain cases of absolute necessity.... Without pretending to
enumerate or classify the multitude of cases on this subject, or to
state all the possible conditions under which this necessity may exist,
we may say that it is applied to cases where the vessel is disabled,
stranded, or sunk; where the master has no means and can raise no funds
to repair her so as to prosecute his voyage; yet where the _spes
recuperandi_ may have a value in the market, or the boats, the anchor,
or the rigging, are or may be saved, and have a value in market; where
the cargo, though damaged, has a value, because it has a market, and it
may be for the interest of all concerned that it be sold.
Such dealing with the cargo must be prudent and in the interest of the
cargo-owner; the master must not sacrifice the cargo to the ship more
than the ship to the cargo. If he can prudently delay for communication
with the owner he must do so; the exercise of this power depends upon
the necessity and the utmost good faith.
The case of Australasian Steam Navigation Co. _v._ Morse, L. R. 4 P. S.
222; 1 Aspin. 407; 27 L. T. Rep. N. S. 357; 8 Moore P. C. N. S. 482; 20
Weekly Rep. 728; 17 Eng. Reprint 393, was decided by the Privy Council
in 1872, on appeal from the Supreme Court for New South Wales. It
appeared that a quantity of wool had been shipped in December, 1865, on
board the _Boomerang_ by owners living inland, for transportation from
Rockhampton to consignees in Sydney. The vessel stranded and filled and
the cargo was so damaged by water that it became dirty, heated and
liable to ignition. It was transferred to a relief vessel which had been
sent out from Rockhampton and was returned to that place, where there
were no facilities for storing or drying it, and it was in danger of
total loss. There does not appear to have been any means of
communicating promptly with the shippers, but there was testimony on the
question whether it might have been possible to reach the consignees in
Sydney, a distance of 900 miles, by telegraph, considering the imperfect
state of the telegraph in New South Wales in 1865, the method of
management of the particular telegraph line, and the fact that
communication, to accomplish anything, must have been attempted on
Sunday or on the next day which was Christmas. Under these
circumstances, the master, after having the wool surveyed by the local
Lloyds agent and a merchant, sold it without attempting to communicate.
For the Privy Council, Sir Montague Smith announced the law as follows:
The general principles of law are not in dispute, viz., that the
authority of the master of a ship to sell goods of an absent owner is
derived from the necessity of the situation in which he finds himself
placed; and consequently that, to justify his thus dealing with the
goods he must establish (1) the necessity for the sale; and (2) his
inability to communicate with the owner and obtain his instructions.
Under these conditions and by force of them the master becomes the
agent of the owner, not only with power but under the obligation
(within certain limits) of acting for him; but he is not in any case
entitled to substitute his own judgment for the will of the owner in
the strong act of selling the goods where it is possible, as hereafter
explained, to communicate with the owner and ascertain his will.
The Council defined the necessity of sale as meaning "that the course
taken must be clearly highly expedient," "the best and most prudent
thing to be done for the interest of the owner of the goods," and said:
A sale of cargo by the master may obviously be necessary in the above
sense of the word, although another course might have been taken in
dealing with it; for instance, if, in this case, the wool, which had no
value but as an article of commerce, could have been dried and repacked
and then stored or sent on, but at a cost to the owner clearly
exceeding any possible value to him when so treated, it would plainly
have been the duty of the master to sell, as a better course for the
interest of the owner of the property than to save it by incurring in
his behalf a wasteful expenditure. In other words, a commercial
necessity for the sale would then arise, justifying the master in
resorting to it.
On the subject of the necessity for communicating with the owners
of the cargo, the Council say:
The possibility of communicating with the owners must, of course,
depend on the circumstances of each case, involving the consideration
of the facts which create the urgency for an early sale; the distance
of the port from the owners; the means of communication which may
exist; and the general position of the master in the particular
emergency. Such communication need only be made when an answer can be
obtained, or there is a reasonable expectation that it can be obtained
before the sale. When, however, there is ground for such an expectation
every endeavor, so far as the position in which he is placed will
allow, should be made by the master to obtain the owner's instructions.
* * * * *
There can be no doubt that the master is bound to employ the telegraph
as a means of communication where it can usefully be done, but in this
case the state of the particular telegraph, the way it was managed, and
how far explanatory messages could be transmitted by it, having regard
to the time and circumstances in which the master was placed, were
proper subjects to be considered by the jury, together with the other
facts, in determining the practicability of communication.
The necessities which may arise in the course of the voyage are
innumerable and can hardly be classified, but the settled and reasonable
rule is that the power corresponds to the necessity at hand. By the
contract of carriage, the shipper and consignee impliedly authorize the
master, when he cannot obtain instructions, to do everything within the
general scope of his employment which a rational man of business might
believe that a rational owner would certainly do for himself if he were
present under the circumstances at hand. And even if the acts of the
master were beyond the ordinary scope of his authority, they may be
ratified by his principals and every ratification is the equivalent of
an original specific authority. So, while it is a general rule that an
agent may not delegate his authority the master may, in proper cases,
appoint another in his place and stead; and such appointee will have the
like powers as the original master. Circumstances may even arise where
the master may sell the cargo though the owner may be in port and does
not approve his action. Thus in the case of the Brewster, 95 Fed. 1000,
the ship had a cargo of coal. After commencing her voyage she was forced
to put back in port. Part of the coal had become wet and liable to
spontaneous combustion; it being dangerous to proceed with it, the
master tendered it to the shippers, who refused to receive it. He
thereupon sold it. The Court upheld his action as being for the general
good of the ship and cargo. This, however, was in the exercise of the
master's duty to protect the safety of the whole ship and must not
be understood as modifying the rule that the master, when no
considerations, except those relating to cargo, are in question, may not
substitute his judgment for that of the owner of cargo, where the
owner's will is ascertainable. It should be noted that all the master's
powers in regard to the cargo depend on the necessity for their exercise
and that, as long as that does not arise, he is really a complete
stranger to the cargo between lading and discharge. While the voyage
prospers he is only to carry it and must not intermeddle in any way.
=9. Power to Sell Vessel.=--Under like circumstances of necessity, the
master may sell the ship herself, on a home shore as well as abroad,
although never in the home port. Good faith and overwhelming necessity
must concur. For his own protection, he should have a thorough
examination made by competent surveyors and their sworn report stating
her condition and advising a sale. In some places, this may be
accomplished through a court of admiralty and this is the safest way.
This subject has been discussed more fully under the caption "Title and
Transfer," § 16, "Sales by Master." The case of the _Amelie_, 6 Wall.
18, there quoted, is the leading case. It should be observed that, if
the exigency is not too urgent to admit of the necessary delay, the
master is bound to communicate with the owner before selling the ship,
and the purchaser is bound to know the circumstances so far as he can
ascertain them by reasonable inquiry. He will not acquire a good title
if the emergency did not justify the sale, provided he could have so
ascertained by investigation.
=10. Power to Create Liens.=--This power is very broad. The master has
an implied power to pledge the ship for all her necessities and thus to
create all classes of contract liens upon her in the absence of the
owner. The order of their priority is governed by the rules applicable
to all maritime liens (see Chapter IX). He may create liens of
materialmen for supplies, work, labor and repairs; of sailors for their
wages; for all necessary services rendered the ship; advances of money;
dockage; towage; and the like. So he may, involuntarily create liens
upon her for torts, as by negligent carriage of cargo, collisions, or
personal injury. The leading exposition of law on this subject is that
of Justice Story in the early case of the _Aurora_, 1 Wheat. 96, decided
in 1816, wherein it was said:
The law in respect to maritime hypothecations is, in general, well
settled. The master of the ship is the confidential servant or agent of
the owners, and they are bound to the performance of all lawful
contracts made by him, relative to the usual employment of the ship,
and the repairs and other necessaries furnished for her use. This rule
is established as well upon the implied assent of the owners as with a
view to the convenience of the commercial world. As, therefore, the
master may contract for repairs and supplies, and thereby, indirectly,
bind the owners to the value of the ship and freight, so, it is held
that he may, for the like purposes, expressly pledge and hypothecate
the ship and freight, and thereby create a direct lien on the same, for
the security of the creditor. But the authority of the master is
limited to objects connected with the voyage, and, if he transcends the
prescribed limits, his acts become, in legal contemplation, mere
nullities. Hence, to make a bottomry bond executed by the master a
valid hypothecation of the ship, it must be shown by the creditor that
the master acted within the scope of his authority; or, in other words,
it must be shown that the advances were made for repairs and supplies
necessary for effectuating the objects of the voyage, or the safety and
security of the ship; and no presumption should arise that such repairs
and supplies could be procured upon any reasonable terms, with the
credit of the owner independent of such hypothecation. If, therefore,
the master have sufficient funds of the owner within his control, or
can procure them upon the general credit of the owner, he is not at
liberty to subject the ship to the expensive and disadvantageous lien
of an hypothecatory instrument.
=11. Duties on Disaster.=--If the ship becomes stranded, disabled or
wrecked, the master is bound to use all reasonable efforts to save all
that may be rescued out of the disaster. The maritime law contemplates
that he must be the last man to leave the ship in every sense of the
expression. He must be diligent to obtain the aid of salvors and to
protect the property in his charge. As far as may be, the cargo must be
saved, stored and transhipped to its destination. The crew must have
provision made for return and the wreck itself preserved as far as it is
of value. He cannot give away any of the property or needlessly
sacrifice any of it. He should promptly communicate with his owners and
underwriters, both ship and cargo, and, until lawfully superseded, has
all the authority which the necessities of the situation demand.
While the master is bound to follow instructions as to the course of his
voyage, and may not deviate unless forced to do so by stress of weather
or for the safety of vessel, crew or cargo, he may always deviate from
his course for the purpose of saving life. He is not bound to lie by or
delay his voyage for the purpose of preserving the property of third
persons, though he may deviate, in the exercises of a sound discretion,
to save property in peril.
=12. Log Book and Protests.=--The log book is the ship's journal in
which is entered her position from day to day, winds, currents, sea,
course, speed, and all other matters of importance in relation to the
vessel. The entries in it should be regularly and correctly made, as in
the regular course of business, and when so kept, it will become a
record of great importance in all matters relating to the ship's
business and litigation. While the entries may be customarily made by
the mate or other subordinate officer, the master should see that they
are properly kept up and satisfy himself of their correctness as he is
primarily responsible for all the transactions of the voyage. The
statutes (U. S. Comp. St. 1916, § 8036) require every vessel making
foreign voyages, or between Atlantic and Pacific ports, to have an
official log book and charge the master with twelve classes of entries
therein, under penalties.
All cases of offenses or of misconduct by members of the crew are
required to be recorded; also all cases of illness, death, birth and
marriage on board; the name of any seaman who ceases to be a member of
the crew; the wages of any seaman who dies during the voyage; the sale
of the effects of any such seaman, and a description of any collision
that may occur.
In introducing a ship's log in evidence, it must be proved in the same
manner as any other document; that is to say, it enjoys no special
evidentiary status.
In case of damage or disaster during the voyage, or suspicion thereof,
the master should within twenty-four hours of his arrival in port cause
a notary public or consul to "note a protest" in regard to the fact;
this "noted protest" should be extended before a notary as soon
thereafter as possible, and at any rate, on arrival at destination and
while recollection is fresh. The extended protest will be upon the usual
form and contain a plain account of the misfortune and damage. As it
will form the basis of any claim of underwriters or adjustment of
damages, great care should be taken to express the facts clearly and
according to their legal results. The master is charged with this duty
and should execute the protest, together with his officers and such of
the crew as have knowledge of the facts involved.
REFERENCES FOR GENERAL READING
_Commentaries_, Kent, III, Lecture XLVI.
_Shipping and Admiralty_, Parsons, Vol. II, Chapter XIV.
_Sea Laws_, Jacobsen, Book II, Chapter I.
Niagara, 21 How. 7.
Nebraska, 75 Fed. 598.
Rupert, 213 Fed. 263.
Lombard S. S. Co. _v._ Anderson, 134 Fed. 568.
Spedden, 184 Fed. 283.
Yarkand, 120 Fed. 887.
Ponce, 178 Fed. 76.
Jenkins, S. S. Co. _v._ Preston, 186 Fed. 108.
Ancaios, 170 Fed. 106.
Aguan, 48 Fed. 320.
Trigg, 37 Fed. 708.
[5] There are a few instances in which a master need not be licensed.
All masters of steamers must be licensed, all masters of sailing vessels
of over 700 tons and all vessels of over 100 tons carrying passengers
for hire (§ 4438). Other masters need not be licensed.
[6] A question sometimes arises whether a particular individual occupies
the position of master or not. The fact that the man is enrolled as
master is not necessarily conclusive of this question. Where a man was
clothed with and did actually exercise the duties of master during the
illness of the registered master he was held to have been _de facto_
master and hence not entitled to a maritime lien for his wages (Hattie
Thomas, 29 Fed. 297). On the other hand, the engineer of a dredge who
was highest officer on the vessel and directed the firemen and other
hands but who had no authority to engage or dismiss men or purchase
supplies, was held not to be the master and his lien for wages was
sustained (Atlantic, 53 Fed. 607). In the Calypso, 230 Fed. 962, it was
said: "the master of a ship is _pro hac vice_ the agent of the owner and
... his appointment or authorization lies in contract, ... if the master
has not been appointed by the owner enrollment cannot make him such."
[7] The rules referred to are "Rules of Practice for the Courts of the
United States in Admiralty and Maritime Jurisdiction on the instance
side of the court."
[8] In a number of leading cases attempts were made to hold the owner
liable for shortage in cargo where the master had signed bills of lading
for goods not actually on board. Among these are the Freeman, 18 How.
182; Grant _v._ Norway, 10 C. B. 665; McLean _v._ Fleming, L. R. 2 H. L.
Sc. 128 (English cases), and American Sugar Refining Co. _v._ Maddock,
93 Fed. 980. The principle laid down in these cases is "not merely that
the captain has no authority to sign a bill of lading in respect to
goods not on board but the nature and limit of his authority are well
known among mercantile persons."
[9] Ragland _v._ Norfolk & Washington Steamboat Co., 163 Fed. 376. This
was a libel _in personam_ in which the libellant claimed damages on
account of an alleged improper arrest while a passenger on board
respondent's vessel. The court said:
"Officers of steamboats and passenger vessels should be exceedingly
careful before putting a passenger under arrest. They are the servants
of the passengers on their boats, paid for the purpose of treating them
kindly. The trouble on this occasion arose from a misapprehension on the
part of the captain of the steamer of his power and duty as master of
the ship. The master of a passenger steamer is an exceedingly important
officer. He should be of exceptional firmness, intelligence and
character, and more than ordinarily endowed with common sense and tact
and always gentle and courteous. He has vast power in dealing with
passengers in situations that are liable to and do arise on his vessel,
and he may in a proper case after exhausting pacific measures, place a
passenger under arrest, but, to suppose, as he testified he did, that he
could delegate this authority to minor officials or others on board,
cannot be sanctioned. When the time comes to arrest passengers, an
occurrence on a steamboat only second in importance to navigating the
vessel in safety, it is his duty to properly care for and protect them
as far as is reasonably possible, and personally to exercise the
responsible duties at hand, and at least give personal direction to what
is being done."
The Lizzie Burrill, 115 Fed. 1015, with reference to the duty of the
master toward the crew. The court quotes a number of American and
English authorities. The syllabus summarizes the decision as follows:
"It is the duty of the master of a ship while at sea to protect his crew
from violence and brutal treatment by other officers under his command.
"The master of a ship while on board is the agent of the owners in
respect to all matters which come within the scope of his duty, and the
owners and ship are liable in damages to a seaman, not only for the
unwarranted ill-treatment of such seaman by the master himself, but for
his failure to perform his duty to protect the seaman from assaults and
ill-treatment by other officers."
[10] The frequently misused term "freight" means the compensation for
carrying the cargo and not the goods thereunder.
[11] See Chapter XII, "Pilotage," _infra_.
CHAPTER V
SEAMEN
=1. Favored in Maritime Law.=--The general maritime law has always
endeavored to protect the rights of seamen and its solicitude for their
welfare has been expressed in the laws of all commercial countries. They
are, as Justice Story said in Brown _v._ Lull, 2 Sumner 449, "a class of
persons remarkable for their rashness, thoughtlessness and improvidence.
They are generally necessitous, ignorant of the nature and extent of
their own rights and privileges, and for the most part incapable of duly
appreciating their values. They combine in a singular manner, the
apparent anomalies of gallantry, extravagance, profusion in expenditure,
indifference to the future, credulity which is easily won, and
confidence which is readily surprised. Hence it is, that bargains
between them and shipowners, the latter being persons of great
intelligence and shrewdness in business, are deemed open to much
observation and scrutiny; for they involve great inequality of
knowledge, of forecast, of power, and of condition. Courts of Admiralty,
on this account, are accustomed to consider seamen as peculiarly
entitled to their protection; so that they have been, by a somewhat bold
figure, often said to be favorites of Courts of Admiralty. In a just
sense, they are so, so far as the maintenance of their rights, and the
protection of their interests against the effects of the superior skill
and shrewdness of masters and owners of ships are concerned."
Hence, from the ancient sea codes to the most recent legislation, there
is a constant provision for their welfare and protection. Their
occupation is an honorable one and has its privileges accordingly; it is
also one of great responsibility and has its duties and the law has both
in mind.
=2. Who Are Seamen?=--The word "seaman" includes every person
(apprentices excepted) who shall be employed or engaged to serve in any
capacity on board of any vessel belonging to any citizen of the United
States (R. S. 4612). A question sometimes arises whether a particular
person occupies the status of seaman. Some discussion of this will be
found in § 13 of this chapter, and in Chapter 4, § 2.
=3. Contract.=--Their relation to the shipowner is one of contract. The
contract is usually in the form of Shipping Articles and in writing. A
form for use in foreign trade (with some exception) is given in Rev. St.
§ 4511 as amended. For other voyages it is not always essential that the
contract be in writing. What its form and language, the law will
practically construe it as containing certain underlying engagements by
both parties;--on the part of the owner and master, that the wages shall
be paid; the voyage legal; the ship seaworthy and fully equipped and
supplied; the voyage definite and without deviation; the treatment by
the officers, decent and humane; the food sufficient; care and cure in
event of injury or sickness; and safe return to their own country;--and
on the part of the seamen, to exert themselves to the utmost in the
service of the ship; to have sufficient training and health for the
positions which they profess; to report on board at the proper time and
place and remain in the service until their engagements are performed;
to be obedient to all lawful commands of the master and their superior
officers; and to assist in maintaining good order and discipline
throughout the ship.
=4. Wages Secured.=--The payment of wages is amply secured. They have a
prior lien upon the ship and freight which will attach to her last
plank. The master and the owner are personally liable and there can be
no limitation of liability in this respect. Such wages are exempt from
garnishment or attachment by creditors of the sailor and he may sue for
them without giving security for costs. If wages are unlawfully
withheld, he may have double for each day's delay.
=5. Forfeitures and Punishments.=--On the other hand, the seamen must
perform their part of the contract. Refusal or neglect to work entails
loss of wages, and wages are not due during a period of lawful
imprisonment (Rev. St. § 4528). Desertion entails forfeiture of clothes
left on board and wages earned; absence without leave, not amounting to
desertion, forfeits two days' pay and expenses of a substitute; quitting
the ship before she is in security means a forfeiture of not more than
one month's pay; willful disobedience at sea will be punished by
confinement in irons and further imprisonment on shore with loss of 4
days' pay. If continued, 12 days' pay is forfeited for each offense
(Rev. St. § 4596); assaulting the master or mate and willfully damaging
the ship or cargo are punishable criminally by imprisonment and
forfeiture of wages.
Corporal punishment is no longer permitted; its infliction is a
misdemeanor punishable by the courts, and it also renders the owner and
master liable for damages. The master may, however, use a deadly weapon
when necessary to suppress mutiny but only when mutiny exists or is
threatened.
The laws of the United States on the subject of Merchant Seamen will be
found in detail in Title LIII of the Revised Statutes and are collected
with the modern amendments, including the La Follette Seamen's Act of
March 4, 1915, and with full annotations in Volume 7 U. S. Compiled
Statutes, 1916, pages 8772 to 8924. The Seaman's Act of March 4, 1915,
is also found in 38 St. at L. 11-64.
=6. Personal Injuries.=--Where a sailor is injured in the service of the
ship he is entitled to care and cure at the expense of the ship,
irrespective of any question of the negligence of any member of the
ship's company and irrespective of whether the seaman was guilty of
contributory negligence, but ordinarily, he can not recover damages
unless fault can be brought home to the owner. He will also be entitled
to his wages for the trip or voyage on which the injury occurred, unless
discharged by voluntary consent under § 4581 Rev. St. before the voyage
ends.
In very recent years repeated assaults have been made upon the long
established rule which prevented seamen from recovering on account of
injury or death in line of duty. In Southern Pacific Co. _v._ Jensen,
244 U. S. 205, an employee engaged in maritime work attempted to recover
damages for a maritime injury pursuant to the Workmen's Compensation law
of New York. The Supreme Court held, that "Congress has paramount power
to fix and determine the maritime law which shall prevail throughout the
country," and that in so far as the Workmen's Compensation law of a
state sought to confer upon seamen rights inconsistent with the general
maritime law, the state Workmen's Compensation law was unconstitutional.
Thereupon Congress by the act of October 6, 1917, undertook to confer
upon suitors in admiralty "the rights and remedies under the Workmen's
Compensation Law of any state." Thereafter in Knickerbocker Ice Co. _v._
Stewart, decided May 17, 1920, the Supreme Court of the United States
held that the act of Congress of 1917 was destructive of the uniformity
of the principles of admiralty law, which the Constitution sought to
preserve, and was therefore beyond the power of Congress to enact.
Therefore, up to May 17, 1920, the date of the decision of Knickerbocker
Ice Co. _v._ Stewart, the old rule of admiralty whereby sailors could
not ordinarily recover damages for injuries in the course of their
employment had successfully withstood all attacks by state legislatures
and by Congress and remained the law. However, three weeks after the
decision in Knickerbocker Ice Co. _v._ Stewart, Congress, by the
Merchant Marine Act of June 5, 1920 (see Appendix), enacted the
following:
That any seaman who shall suffer personal injury in the course of his
employment may, at his election, maintain an action for damages at law,
with the right of trial by jury, and in such action all statutes of the
United States modifying or extending the common-law right or remedy in
cases of personal injury to railway employees shall apply; and in case
of the death of any seaman as a result of any such personal injury the
personal representative of such seaman may maintain an action for
damages at law with the right of trial by jury, and in such action all
statutes of the United States conferring or regulating the right of
action for death in the case of railway employees shall be applicable.
Jurisdiction in such action shall be under the court of the district in
which the defendant employer resides or in which his principal office
is located.
This provision, which seeks to confer upon seamen the rights enjoyed by
railway employees under the Federal Compensation Act, has not yet been
construed by the courts.
The rights of railway employees thus conferred upon seamen are those
given by acts of Congress approved April 22, 1908, and April 5, 1910.
These acts gave to the employees of railroads engaged in interstate and
foreign commerce, a right of action against the employing carrier in
case of injury or death of the employee, notwithstanding that the
accident may have been caused by acts of a fellow servant or may have
been due to one of the risks naturally incident to the employment, and
notwithstanding that the plaintiff may have been guilty of contributory
negligence, although in the latter case the damages are to be diminished
in proportion to the amount of the employee's negligence. Suit may be
brought in the state or federal courts, which are given concurrent
jurisdiction in such cases.
It should be observed that under neither the Merchant Marine Act nor the
Railway Employers' Liability Acts is the jurisdiction to be exercised by
the court sitting in admiralty. The jurisdiction invoked is that of the
courts of common law.
Where, however, there is negligence on the part of the shipowner in
providing a seaworthy ship, or on the part of the officer in caring for
the injured man, the admiralty will award damages; if there has been
contributory negligence, it will not prevent recovery but the damages
will be apportioned or divided (The Max Morris, 137 U. S. 1).
The principle on which vessels are held liable for injuries to seamen
due to unseaworthiness is simply an application of the rule of law that
every master is bound to provide his servant with a safe place to work;
that is to say, a place as safe as any prudent man would provide for the
performance of work of similar character, and that failure to provide
such a safe place is actionable negligence. In the Joseph B. Thomas, 86
Fed. 658, it was held that where an employee on a vessel placed an empty
keg on a pile of hatchway covers in such a position that an accidental
jar caused it to fall in the hatch and injure a stevedore, the master
and the owners were liable and the ship was held for violation of the
duty to provide a safe place to work.
=7. Duties in Disaster.=--In case of shipwreck or disaster a sailor is
bound to do all he can for the safety of the ship and cargo. This is in
the line of his duty and does not merit extra pay. His lien for wages
attaches to the last plank of the ship but he must do his share of the
work required to preserve it.
In the Shawnee, 45 Fed. 769, the ship had suffered greatly from a severe
storm and went under Mackinac Island for shelter. Much extra work was
required by the crew and when the time came to proceed on the voyage
they told the master that they would not go on unless an extra allowance
of $50 each was guaranteed. Under the stress of circumstances the master
was constrained to acquiesce in the demand, but on arrival the owners
refused to pay this extra amount although they tendered the regular
wages. The sailors thereupon libeled the ship, but the Court, in a very
emphatic opinion, declared that their conduct had amounted to mutiny and
that their wages should be entirely forfeited.
Numerous decisions illustrate these rules.
In the Troop, 118 Fed. 769, a sailor fell from a yardarm and fractured
his thigh shortly after the ship sailed; the captain might have put him
in the port hospital but instead applied splints himself and sent the
man to his bunk; he did nothing more for him until the vessel arrived at
her destination, thirty-six days after, and even then neglected him for
an additional five days before supplying proper medical care. The sailor
suffered greatly during the voyage and became permanently injured. The
Court held that the ship was liable for the master's failure to observe
the rule of care to an injured sailor and awarded him $4,000 with 6 per
cent interest.
In the Margharita, 140 Fed. 820, the ship sailed from a port in Chili
for Savannah. While off the west coast of South America and about to
round Cape Horn a sailor lost his footing aloft and was precipitated
into the sea. As he struck the water a shark, or some other marine
monster, bit off his leg at the knee, but he was rescued by another of
the crew who jumped after him. The ship was then about 7,000 miles from
her destination. The master gave the sailor all the attention which the
ship afforded and controlled the hemorrhage and inflammation by placing
the stump in tar; he continued to give him regular attention during the
voyage, detailed a man to supply his wants and provided him with a
suitable diet; on arrival at Savannah he was immediately sent to the
hospital. The Court held that there could be no further recovery
inasmuch as the master had fully discharged all the obligations of the
rule.
=8. Offenses of Seamen.=--Discipline being essential to the welfare of
the ship and all on board, the maritime law punishes offenses of seamen
against its code. Disobedience or misconduct in a sailor can not be
tolerated or the ship would be in constant peril and its business
frustrated. But the punishment must be reasonable and in proportion to
the offense. The law will not endure tyranny or cruelty in any form.
Flogging is abolished and prohibited by law and, generally, the only
forms of punishment which may now be employed are forfeiture of wages or
clothing, confinement on board, disrating and imprisonment on shore.
Where an emergency arises, instant obedience may be compelled by force
on the part of the officers and master, according to the necessity of
the case, even to the taking of life, but cases of this kind are rare.
In any event, the punishment must be according to the exigency and not
excessive or brutal. Unlawful orders may be disregarded and even the
master arrested and confined if he attempts to commit a felony; but, in
general, the sailor must not attempt to take the law into his own hands
and it will be more judicious to submit to harsh treatment and seek his
redress later in the courts.
The ordinary offenses of seamen are classed as mutiny, inciting revolt,
desertion, disobedience, assaults, theft, fighting, and tampering with
the cargo; but, in addition, they are liable for all crimes and offenses
which would be punishable as such if committed on shore.
=9. When Entitled to Leave Ship.=--The sailor is not bound to continue
in the ship when she becomes unseaworthy because his contract of service
is based upon the condition that the ship is and shall be seaworthy.
When such a condition exists, the crew is entitled to apply respectfully
to the officers and urge that the ship return to port; if in port, they
may request a survey and, if unseaworthiness is declared, the consul has
authority to give them their discharge.
=10. Desertion.=--In the maritime law, desertion consists in quitting
the ship and service by a sailor, without leave and against his duty,
without an intent to return. If not justified, it works a forfeiture of
wages. The mitigating circumstances must be such as amount to a
reasonable excuse, founded on gross misconduct of the master or hard
usage. Slight and transient causes will not answer, especially where the
desertion appears to have been deliberate and premeditated, and not the
result of sudden impulse. It was formerly the law that a deserting
seaman might be arrested and imprisoned on shore by local magistrates on
the complaint of the master and so compelled to return to his service
(Robertson _v._ Baldwin, 165 U. S. 275). Recent legislation, however,
has repealed the older statutes and there are now no laws of the United
States which authorize the imprisonment of seamen deserting from vessels
owned by citizens of the United States. This is probably true also in
the case of foreign-owned vessels within American ports (_Ex parte_
Larsen, 233 Fed. 708). Among the causes which have been held to justify
desertion are sickness, unwholesome food, cruel treatment, deviation and
unseaworthiness. But the justification must be clearly shown, for it is
a serious thing to quit the ship, and the law will not permit it unless
the reasons are sound and substantial. Of course, besides the forfeiture
of wages which desertion entails, the deserter will be liable to the
owner for such damages as his breach of contract may cause. The offense
may be committed by any member of the ship's company.
=11. Self-defense.=--Generally speaking, the remedy of the sailor for
violence inflicted upon him on shipboard is to be sought in the courts
of law alone. The exigencies of discipline require that, for the common
good, authority on shipboard should not be resisted. Nevertheless cases
occur where the right of self-defense may be lawfully claimed. Where the
master assaults a seaman, the latter may endeavor to escape; if pursued
and escape be impossible, and the assault continued, he may use
necessary and equivalent force for his own protection.
It should be remembered that the power of punishment on shipboard is
vested in the master personally and that the law does not permit his
delegating it to others. A mate has no legal right to enforce his orders
by beating one of the crew. Up to about seventy years ago corporal
punishment of seamen was permitted by law, owing to the nature and
supposed necessities of the service, and no doubt officers find it hard
to give it up. Courts of admiralty endeavor to deal with these cases in
a practical way. Altercations and assaults between master and crew have
never been treated by them like those redressed in the common law
courts, where the slightest blow may be treated as a trespass to one's
dignity and feelings of self-respect. The crew are to be protected from
injury and the maritime law will amply vindicate all beatings, woundings
and maltreatment, criminally and civilly. The right of self-defense is
only a last resort and will seldom need to be invoked.
=12. Lien for Wages.=--The seamen have a maritime lien for their wages
in preference over all other liens except for salvage. They are said to
be the wards of the admiralty and it endeavors to see them paid over all
other creditors of the ship. Thus the lien has priority over towage,
claims for supplies and repairs, breach of contract, and port dues. It
will not be superior to a lien for collision damage, if their negligence
contributed to the disaster, at least as far as prior wages are
concerned. Subsequent wages, earned in bringing the ship back to port,
stand on a different footing.
This lien is said to inhere in the last plank of the ship and will be
paid in preference to claims for penalties against the ship in behalf of
the United States and port dues.
The lien for wages exists in the home port of the vessel as well as in
foreign ports.
Where as sometimes in the case of a fishing voyage the crew has an
interest in the result of the venture this does not affect the right to
liens.
The weight of authority in the more recent decisions, reversing the
older rule, is to give a lien to stevedores, longshoremen, watchmen and
ship carpenters against foreign vessels (that is to say vessels not in
the home port) while the authorities are in conflict as to whether such
liens lie against domestic vessels.
The Merchant Marine Act of June 5, 1920, which is printed in full in the
Appendix, § 30, Subsection M, expressly confers a lien for wages of
stevedores, "when employed directly by the owner, operator, master,
ship's husband, or agent of the vessel", and makes no distinction
between the home port and any other.
In the Ole Olson, 20 Fed. 384, a schooner was libeled for seamen's wages
and two men intervened and sought to recover who had been employed as
stone-pickers by the master, who was also managing owner, to gather
stone on the shores of Lake Michigan and assist in loading the stone on
board as cargo to be carried to Chicago. While engaged in this service
they lived and slept on the vessel as she lay off shore and when the
weather was such that stone could not be gathered, the schooner would
run into port and on such occasions these men would lend a hand in
hoisting sail. They did not accompany the vessel on her voyages as she
had a full crew without them. The only question was whether they
rendered maritime services and were therefore entitled to the seaman's
lien for wages. The Court held that they were not, distinguishing the
Ole Olson from the case of the Ocean Spray, 4 Sawy. 105, and several
others. In the case of the Spray the libellants were shipped as sealers
and were hired to take seal for the vessel at a stipulated sum per
month. Their contract also bound them "lend a hand on board whither they
were wanted." On the voyage they helped make and reef sail, heave the
anchor and clear decks, but did not stand watch. They also procured
driftwood and water for the use of the vessel. They thus aided in the
navigation and preservation of the vessel and were colaborers in the
leading purpose of the voyage. "Upon the principle applicable to
surgeons, stewards, cooks and cabin boys (all of whom are entitled to
the lien) they were to be considered as mariners." They were accordingly
entitled to their maritime lien on the vessel.
=13. Shipping Articles.=--The law provides (U. S. Comp. St. § 8300-8314)
that the master of every vessel bound from a port in the United States
to any foreign port overseas, or vice versa, shall make an agreement, in
writing or in print, with each of the crew, containing particulars of
the nature and duration of the voyage; the number and description of the
crew; the time at which each is to be on board; the capacity in which
each is to serve; the amount of wages which each is to receive; the
scale of provisions which are to be furnished to each; any regulations
as to conduct on board, fines, short allowances and other lawful
punishments which may be agreed to; and any stipulations as to advances
and allotments of wages, or other matters not contrary to law.
Sections 8287-8297 provide for the appointment of shipping-commissioners
in such ports of entry and ports of ocean navigation as require them;
where no commissioners are appointed, the collector of customs or his
deputy may so act; the duties of such commissioners are to afford
facilities for engaging seamen by keeping a register of their names and
characters; to superintend their engagements and discharge according to
law; to provide means for securing their presence on shipboard according
to their engagements; to facilitate the making of apprenticeships to sea
service and to perform such other duties relating to merchant seamen and
merchant ships as may be required by law. Section 4554 amended by the
Act of August 19, 1890, provides that the commissioners shall arbitrate
disputes between owners or masters and the crew on mutual application.
Shipping articles should be in the printed form required by the statute
and in common use; they should be signed by each seaman in the presence
of a shipping commissioner, in duplicate, and one part retained by him;
they should be acknowledged and certified under the commissioner's seal,
to the effect that each understands what he has subscribed and, while
sober, and not in a state of intoxication, acknowledges it as his free
and voluntary act; the other duplicate should be delivered to the master
and seamen subsequently engaging on the voyage should place their
signatures thereon. The ship and also its officers are liable to
penalties for shipping seamen without articles, but the requirement is
excepted in the case of vessels engaged in the coasting trade and on the
Great Lakes. When seamen are shipped in foreign ports where there is a
consular officer of the United States or commercial agent, the master
must obtain his sanction to the engagement, in substantially the same
manner as in the case of a shipping commissioner at home. A copy of the
articles, with the signatures omitted, must be posted on the vessel so
as to be accessible to the crew, under penalty of one hundred dollars.
Shipping articles for vessels in the coasting trade, in less detailed
forms, are required by § 8311 and the master is made liable to a penalty
of twenty dollars and the highest rate of wages for every seaman or
apprentice carried without such an agreement. All shipments of seamen
contrary to law are declared void; any seaman so shipped may leave the
service at any time and recover either the highest rate of wages of the
port from which he shipped or the sum agreed to be paid him when he went
on board.
=14. Wages and Effects.=--Sections 8315-8337a of the Compiled Statutes
of 1916 and the Merchant Marine Act of 1920 (see Appendix) codify the
law in these respects. The right to wages and provisions commences
when the sailor begins work or at the time specified in the
shipping-articles, whichever happens first; the right is in no way
dependent on the earning of freight; where the term of the hiring is cut
short by loss or wreck of the vessel, the sailor is entitled to his
wages up to that time but no longer; he is to be ranked as a destitute
seaman and given transportation to the port of shipment according to
law; in case of improper discharge before the commencement of the voyage
or before one month's wages are earned, the sailor may have a sum equal
in amount to one month's wages as extra compensation over what he may
have earned; the right to wages is suspended during the time a seaman
unlawfully refuses to work; on coasting voyages, wages must be paid
within two days after the termination of the articles or upon discharge,
whichever first happens; on foreign voyages, or between Atlantic and
Pacific ports, within twenty-four hours after the cargo has been
discharged, or within four days after the sailor has been laid off,
whichever happens first; and in all cases he may have at least one-third
of the balance due him when he is discharged. Every master and owner who
neglects to pay the sailor as required by law, without sufficient cause,
must pay him double wages for every day during which payment is delayed
beyond the periods mentioned.
Every sailor on an American vessel is entitled to receive from the
master, at every port where the vessel loads or delivers cargo during
the voyage, one-half his wages then earned; the demand, however, may not
be made oftener than once in five days. Failure to so pay wages releases
the seaman from his contract and foreign sailors in harbors of the
United States may have the benefits of this provision.
It is unlawful to pay wages in advance, either to the sailor or to any
other person on account of advances;[12] such payments constitute no
defense to a subsequent suit. But a sailor may stipulate in the articles
for an allotment to his grandparents, parents, wife, sister, or
children, such allotment to be in writing and signed and approved by the
commissioner.
Sailors' wages are not subject to an attachment or garnishment from any
court and no prior assignment of wages or claim for salvage is valid.
The effects of deceased seamen must be taken in charge by the master; if
he thinks fit, he may cause them to be sold at auction at the mast or
other public auction; if so, an entry must be made in the log book,
signed by the master and attested by the mate and one of the crew,
showing the amount of money belonging to the party in question; a
description of each article sold and the sum received for each; and a
statement of the balance of wages due. If the vessel proceeds to a port
of the United States, the master must account to a shipping commissioner
within forty-eight hours. If she touches at a foreign port first, he
must report the case to the United States consular officer there and
conform to his instructions. Failure to observe these requirements may
subject the master to a treble liability for the value of the effects
involved. Unclaimed proceeds of such effects, after six years, are
converted into the Treasury of the United States and become a part of a
fund for the relief of disabled seamen of the merchant marine.
=15. Protection and Relief.=--Sections 8343-8376 of the Compiled
Statutes of 1916 contain numerous provisions for the protection and
relief of sailors. Shipping commissioners are authorized to act as
arbitrators on any question whatsoever between a master, consignee,
agent or owner and any of the crew, if both parties agree in writing to
submit it to him; his award is binding on both parties and any document
under his hand and official seal purporting to be such, submission and
award is _prima facie_ evidence thereof; in any proceedings relating to
wages, claims of discharge of sailors, the shipping commissioner has
many of the powers of a court in regard to the examination of witnesses
and production of documents.
Where complaint is made that a vessel is unseaworthy, the master must
forthwith apply to the judge of the district court for the district in
which the ship may be, or if such a judge is not available, to some
justice of the peace, for the appointment of surveyors; three surveyors
may be then appointed whose duty it will be to carefully examine the
ship and report their findings to the judge, or justice; he shall
thereupon decide whether the vessel is fit to proceed, or, if not,
whether the necessary repairs should be made where she is lying or
whether it is necessary for her to proceed to a port of repair; the
master and the crew are bound to conform to the decision. The master
must pay all the costs of such survey unless it is decided that the
complaint was without foundation; if so, the costs, to be ascertained by
the judge or justice, and reasonable damages for the detention, are
payable out of the wages of the parties who complain; if it be adjudged
that the vessel is fit to proceed on her intended voyage, or if after
the required repairs are made the sailors or any of them refuse to
continue on board, their wages may be forfeited. Similar provisions
obtain when the ship is in a foreign port; there the consul is
authorized to appoint surveyors or inspectors; such inspectors in their
report shall also state whether in their opinion the vessel was sent to
sea in an unseaworthy condition by neglect or design, or through mistake
or accident; if by neglect or design, and the consular officer approves
such finding, he shall discharge such of the crew as requested and
require payment by the master of one month's extra wages or sufficient
money for the return of the crew to the nearest and most convenient port
of the United States; if the defects are found to be the result of
mistake or accident, and the master shall in a reasonable time remove or
remedy the cause of complaint, then the crew must remain on board and
discharge their duty. Sending or attempting to send an American ship to
sea in such an unseaworthy state as to make it likely that the life of
any person will be in danger is a misdemeanor punishable by a fine not
to exceed $1,000 or by imprisonment not to exceed five years, or both.
Should any master or owner neglect to provide a sufficient quantity of
supplies for a voyage of ordinary duration to a port of destination, and
thereby cause the crew to accept a reduced scale, he will be liable to
penalties from fifty cents to one dollar a day to each sailor prejudiced
thereby; any three or more of the crew of a vessel in deep-sea service
may complain of the bad quality of the provisions or water and have a
due examination made thereof, and if deficiency is found a master must
remedy the same under a penalty of not more than $100; every American
vessel in ocean trade shall be provided with medicines and
antiscorbutics; must keep on board appropriate weights and measures and
be provided with at least one suit of woolen clothing for each seaman,
and a safe and warm room for the use of seamen in cold weather; they
must also be provided with a slop-chest containing a complement of
clothing for the intended voyage for each seaman employed, including
everything necessary for the wear of the sailor and a fair supply of
tobacco and blankets; the contents of the chest shall be sold from time
to time to any and every sailor applying therefor for his own use at a
profit not exceeding 10 per cent. of the reasonable wholesale value at
the port of shipment.
The statutes also contain detailed provisions as to the numbers and
qualifications of the crew for vessels of various sizes and waters; also
as to ratings, examinations and certificates of service; also as to
wages at sea and against undue or unnecessary labor on board; while
vessels are in safe harbors no sailor can be required to do any
unnecessary work on Sundays or holidays, and while in port nine hours
constitute a day's work.
REFERENCES FOR READING
_Rights and Duties of Merchant Seamen_, George Ticknor Curtis, Boston,
1841; Little & Brown.
_Commentaries_, Kent, III, Lecture XLVI.
_Shipping and Admiralty_, Parsons, Vol. II, Chapter XV.
_Master and Servant_, Labbatt, I; § 243-247; § 251c; § 416: II; § 489;
504; 678-682: V; § 2006-2012.
Ixion, 237 Fed. 142.
Catalonia, 236 Fed. 554.
Strathearn, 239 Fed. 583.
Imberhorne, 240 Fed. 830.
Chicago, 233 Fed. 538.
S. S. Co. _v._ Schmidt, 241 U. S. 245.
Robertson _v._ Baldwin, 165 U. S. 275.
Ross _v._ McIntyre, 140 U. S. 453.
Endora, 190 U. S. 169.
Dallemagne _v._ Moison, 197 U. S. 169.
Osceola, 187 U. S. 190.
[12] In Sandberg _v._ McDonald, 248 U. S. 185, the Supreme Court by a
five to four decision, held that an advance made to a sailor before
shipping on a British vessel, being lawful under British law, was
properly deducted by the master in an American port from the one-half of
earned wages demandable by the seaman in such port, notwithstanding such
advance was unlawful under the American statute.
Going further at the same term of court and with the same dissent, the
court held in Neilson _et al_ _v._ Rhine Shipping Co., 248 U. S. 205,
that advances to seamen shipped on an American vessel in a foreign port
were not prohibited by the statute. The effect of these two decisions
was that the prohibition of advances to seamen upon their wages was
confined to American ports, but the Merchant Marine Act of June 5, 1920
(see Appendix) provides that if an advance be made to a seaman in any
port, whether foreign or domestic, he may nevertheless, recover the full
wages earned by him, including any sum that may have been advanced to
him. In other words he may recover the amount advanced over again. Such
advances are prohibited in American ports whatever the nationality of
the ship. On the other hand, the act is applicable to a vessel in an
American port no matter what her nationality. Thus in a recent case of
Strathearn S. S. Co. _v._ Dillon, decided March 29, 1920, the Supreme
Court unanimously held that foreign seamen on foreign vessels in
American ports are entitled to the benefits of the act and may demand
one-half of the wages earned, notwithstanding contractual provisions to
the contrary, and that the vessel need not have been in an American port
five days before the seamen may make the wage demand. To entitle the
seaman to make the demand it is only necessary that the vessel shall
load or deliver cargo before the voyage is ended, and in the port where
the demand is made; that the voyage shall have been commenced at least
five days previously; that five days shall have lapsed since the last
previous demand.
CHAPTER VI
CARRIAGE BY SEA
The purpose of the ship is the carriage of goods and passengers and the
earning of freight- and passenger-money. The underlying purpose of the
maritime law is to facilitate these transactions and provide reciprocal
rights for the parties engaged in them, hence the ship will have a lien
on the cargo for its freight, demurrage and other charges; and,
correspondingly the cargo will have a lien on the ship for any damages
it may sustain by breach of the contracts of carriage. A ship is held to
a high degree of care for the cargo and the cargo-owner must be prompt
in his relations to the ship.
=1. Common and Private Carriers.=--The ship may be either a common or
private carrier of goods or of passengers. In many respects carriage by
water is only a subdivision of the general law of carriers and the more
general principles apply as well to the ship as the railroad.
The common carrier is one who offers to carry for all who may choose to
employ him. The private carrier is one who transports by virtue of a
special agreement. The private carrier appears more frequently in water
carriage than in land transportation. Most ships, for example, carrying
bulk cargoes by special arrangement are private carriers. Most passenger
ships are common carriers of passengers. Ships carrying miscellaneous or
package freight, and running over regular routes, are common carriers.
In general the distinction is by what they profess or offer to
do,--whether to carry generally for the public, or only by special
agreements.
=2. Liabilities.=--The liability of a private carrier may be more
closely limited by agreement than that of common carrier, but in general
it will be sufficient to consider his liability as that of a shipowner
carrying goods for hire. That liability is practically very stringent;
he is responsible for any damage to the goods in his charge unless he
can show that it was occasioned by the act of God or the public enemy,
subject to two important statutes,--the Limited Liability Act (Rev. St.
§§ 4282-4289, Act of June 26, 1884) elsewhere considered, and the Harter
Act of February 13, 1893, 27 S. 445. Under this last mentioned statute,
if the ship is actually seaworthy in all respects at the commencement of
the voyage, there is no liability for losses sustained by faults or
errors in her navigation or management. The general scope of the Act is
to prohibit stipulations in the bill of lading which curtail the
shipowner's liability for negligence in the proper loading, stowage,
care or delivery of the cargo and to exempt him from the consequences of
faults or errors in navigation or management if the ship was seaworthy
when the voyage began. The word "management" does not include acts of
preparing the ship for the voyage; and where she had reached her
destination and sank while being discharged on account of her unstable
condition and a broken coal port, the fault was held not to be one in
her management.
=3. Seaworthiness.=--A warranty of seaworthiness underlies all the
relations of ship and cargo. This means, primarily, that the vessel is
responsible for loss or damage to the goods if she was not in a
seaworthy condition when she commenced the voyage, and if the loss would
not have arisen but for that unseaworthiness. This liability may
frequently involve the owner personally, as when the defect is
attributable to his own fault or want of care. He is held to warrant
that she is fit to carry the cargo which she loads and with it to
encounter safely whatever perils may be reasonably expected to ensue and
assumes liability for any defects in hull, machinery or equipment, even
if not discoverable by careful examination. The ship must be fit in
design, structure, condition, and equipment to encounter the ordinary
perils of the voyage. This includes a competent master and a sufficient
crew. The test is, of course, a relative one and depends upon the facts
and circumstances involved in each particular case. A ship may be
perfectly seaworthy for a particular cargo and voyage and quite
unseaworthy for another. It is frequently said that the warranty does
not require an absolutely perfect ship and that the true criterion is
that degree of fitness which the average prudent and careful owner
requires of his vessel at the commencement of the voyage, having given
due consideration to all the circumstances which may reasonably be
anticipated to attend it.
In the case of the Caledonia, 157 U. S. 124, it appeared that the vessel
was chartered to transport cattle from Boston to Deptford. Sufficient
fodder was provided for fifteen days, a longer period than the usual
length of the voyage, being all the fodder customarily provided for such
voyages. When nine days out from Boston in smooth water, the propeller
shaft broke straight across in the stern tube. The breakage was due to
weakening of the shaft in heavy seas on previous voyages. Its weakened
and unfit condition existed when the vessel put to sea on the voyage
under consideration, but the defect was invisible and could not have
been detected by usual and reasonable means if the shaft had been taken
out and examined. No negligence on the part of the owners was proven.
Because of the breakage the voyage lasted twenty-five days and the
cattle were put on short allowance of food. In consequence they were
landed at Deptford in emaciated condition. They were sold in London on
the first market day following their arrival. The shipper of the cattle
sustained a loss due to their shrinkage in weight and to a fall in the
market which occurred during the period of delay. Chief Justice Fuller
in the opinion of the court reviewed many of the leading English and
American cases, and held:
The proposition that the warranty of seaworthiness exists by
implication in all contracts for sea-carriage, we do not understand to
be denied; but it is insisted that the warranty is not absolute, and
does not cover latent defects not ordinarily susceptible of detection.
If this were so, the obligation resting on the shipowner would be, not
that the ship should be fit, but, that he had honestly done his best to
make her so. We cannot concur in this view.
In our opinion, the shipowner's undertaking is not merely that he will
do and has done his best to make the ship fit, but that the ship is
really fit to undergo the perils of the sea and other incidental risks
to which she must be exposed in the course of the voyage; and, this
being so, that undertaking is not discharged because the want of
fitness is the result of latent defects.
The warranty of seaworthiness implies that the vessel shall be
fit for the particular service in which she is to engage. A vessel
intended to be used in river navigation is not required to be made
fit for ocean transportation. Taking into consideration the nature
of the voyage, it has been said that:
She must be so tight that the water will not reach the cargo; so strong
that these ordinary applications of external force will not spring a
leak in her or sink her; so sound that she will safely carry the cargo
in bulk through these ordinary shocks to which she must every day be
subjected. If she is capable of this, she is seaworthy; if she is not,
she is unfit for the navigation of the river. (The Keokuk, etc. _v._
Home Ins. Co., 9 Wall. 526.)
The opinion just quoted had reference to a barge in tow. The Court held
that the barge was considered as belonging to the tug, which had her in
tow, and that the warranty of seaworthiness extended to the barge
equally with the tug.
While under the act of February 13, 1893, (27 St. at L. 445, _supra_)
the owner is relieved of liability to the cargo by reason of faulty
navigation, the employment of a competent master and crew is implied in
a warranty of seaworthiness and the owner is liable under the warranty
if he fail to employ a competent personnel. In other words the relief
from liability occurs where the owner had employed competent men, but
they negligently or faultily operated the ship. Thus Justice Clifford in
Germania Ins. Co. _v._ Lady Pike, 21 Wall. 1, said:
(The vessel) must be provided with a crew adequate in number and
competent for their duty with reference to all the exigencies of the
intended route, and with a competent and skillful master, of sound
judgment and discretion, and with sufficient knowledge of the route and
experience in navigation to be able to perform in a proper manner all
the ordinary duties required of him as master of the vessel.
=4. Loading and Stowage.=--These are done in accordance with the
provisions of the contract of carriage or custom of the port at which
the cargo is taken on board. Proper loading and stowage is an important
element of seaworthiness of the ship. The cargo must be so disposed as
to keep her trim and seaworthy and also so that one portion may not
injure another. This work is frequently done by stevedores, whose
services, when employed by the ship, are now recognized as maritime and
secured by a lien on the vessel. They are, however, subject to the
master's control and he is not to take on more cargo than he thinks the
vessel can safely carry nor permit its stowage to interfere with the
general safety of the adventure. He may refuse to take on more cargo
than in his honest opinion is prudent, and must not permit any
overloading at all. A fair test is the depth which the vessel was
constructed to draw or that which the master and others of experience on
the spot believed to be proper. The shipper of goods by sea must
disclose their real character and value. He is bound to know whether
they have explosive or other dangerous qualities, and, if concealment
has been practiced by him on the shipowner, he will be liable for all
the damages sustained from their effects. In every shipment there is an
implied warranty on the part of the shipper that his goods are not of a
character to cause injury to other goods on board, unless otherwise
specially stipulated, and he is held liable for all the consequences of
its breach; if the carrier has thereby been obliged to compensate other
shippers, he may recover over against the delinquent what he was so
compelled to pay.
In the case of Barker _v._ The Swallow, 44 Fed. 771, a small steamer, in
use in the lumber trade on the Great Lakes, took a cargo of pine boards,
laden as usual on deck. She encountered a strong wind and heavy sea,
causing her to roll badly so that a portion of the lumber slid off the
starboard side and another portion off the port side as the vessel
careened in either direction. It was conceded that it was not the usage
to lash deck loads of lumber vessels with ropes or chains, but with
ordinary safe loading the boards would be held in place by the
frictional contact of their surfaces under the weather conditions
ordinarily encountered on Lake Michigan. The libellant (owner of the
lumber) contended that too much lumber had been loaded upon the deck and
thereby made her top-heavy, and caused her to roll more than she would
have done had she not been overloaded on deck, and that the rough
weather encountered did not amount to a "tempest". The Court held
while a vessel is not liable for the loss of her deck-load when it is
lost by stress of weather, or what can be properly called "a peril of
the sea," yet, if she takes on so heavy a deck-load as to become
top-heavy, and endangers loss of the deck-load, or puts it in peril in
an ordinary wind, or anything less than a gale of wind, or such stress
of weather as is clearly unusual, it should, I think, be accounted bad
stowage and negligence. Overloading the vessel so as to render her
unmanageable, or susceptible of becoming unmanageable, by such a wind
as is shown to have prevailed on the night in question, is, I think, a
manifest negligence on the part of the carrier, and such as should not
acquit him of liability if the cargo is lost.
In this case there was testimony that the vessel had carried much
heavier deck cargo in safety, but the Court considered that this proved
no more than her good luck.
Where the particular method of stowage is determined by the shipper, and
damage results, the vessel is not liable for damage to cargo so stowed.
A distinction is also to be noted between underdeck cargo and cargo
stowed on deck. These principles are illustrated by the case of Lawrence
_v._ Minturn, 17 How. (U. S.) 100. In that case certain boilers and
chimneys were shipped aboard the _Hornet_ and stowed on deck with the
consent of their owner. The vessel encountered bad weather and began to
roll gunwale deep, shipping large quantities of water, opening seams and
endangering the safety of the underdeck cargo, as well as the lives of
those on board. After consultation with his officers and members of the
crew the master lightened ship by throwing overboard the deck cargo. The
owner of the boilers and chimneys libeled the ship. In directing the
libel to be dismissed the Supreme Court said:
It was strongly urged by the libellant's counsel that the shipper could
not be supposed to have, and should not suffer for not possessing, a
knowledge of the capacity or sufficiency of the ship; that the carrier
was bound to know that the instrument, by which he agreed to perform a
particular service, was sufficient for that service; and that, as these
carriers contracted to convey this deck-load to San Francisco, they
were obliged to ascertain whether placing it on deck would overload
their vessel. This appears to have been the ground on which the court
below rested its decree.
This reasoning would be quite unanswerable if applied to a shipment of
cargo under deck, or to its being laden on deck without the consent of
the merchant, or to a contract in which perils of the sea was not
excepted. But the maritime codes and writers have recognized the
distinction between cargo placed on deck, with the consent of the
shipper, and cargo underdeck.
There is not one of them which gives a recourse against the master, the
vessel, or the owners, if the property lost had been placed on deck
with the consent of the owner;...
The carrier does not contract that a deck-load shall not embarrass the
navigation of the vessel in a storm or that it shall not cause her so
to roll and labor in a heavy sea as to strain and endanger the vessel.
In short, he does not warrant the sufficiency of his vessel, if
otherwise staunch and seaworthy to withstand an extraordinary action of
the sea when thus laden. If the vessel is in itself staunch and
seaworthy, and her inability to resist a storm arises solely from the
position of a part of the cargo on her deck, the owner of the cargo who
has consented to this mode of shipment, cannot recover from the ship or
its owners, on the ground of negligence or breach of an implied
contract respecting seaworthiness....
The master is bound to use due diligence and skill in stowing and
staying the cargo; but there is no absolute warranty that what is done
shall prove sufficient.
In this connection, however, it should be noted that the foregoing
decision has not been interpreted to mean that where a shipper assumes
the risk of deck cargo he thereby bargains away his right to recover for
loss of such cargo if the ship were inherently incapable of carrying it.
Thus the court in the Royal Sceptre, 187 Fed. 224, where the shipper
himself was the charterer and loaded the cargo on deck, said:
Pressed to its logical limit, the untenable nature of the argument
seems very plain; for if a vessel can become unseaworthy by piling up
deckload, without any liability to the owner of the same, she may
capsize as soon as her fasts are thrown off. Deck cargo at shipper's
risk does not mean such absolute surrender of all rights. The risk
assumed presupposes proper loading for deck stowage and a seaworthy
ship. It is not thought that Lawrence _v._ Minturn asserts any doctrine
opposed to this. It speaks only of a jettison; while, if even a
jettison be rendered necessary by unseaworthiness _existing at
commencement of voyage_, the ship is liable, as is shown by the summary
of decisions given in Compania De Navigacion la Flecha _v._ Brauer, 168
U. S. 120, 121.
=5. Wreck or Stranding.=--Shipwreck or disaster does not affect the
title of the owners of the cargo but the goods themselves may become
subject to superior liens for salvage and general average.[13] If the
voyage is broken up the owner may take his property wherever he can find
it, subject to such maritime liens as may have lawfully accrued and,
also, in some cases, to a claim for freight in proportion to the part of
the voyage which has been performed. In the absence of the owners, the
master is the agent of all concerned and has as much authority as the
necessities of the situation require.
In practice almost all matters growing out of a disaster are dealt with
by the underwriters. Cargoes are seldom uninsured. The owner should
promptly notify his insurers or brokers and tender an abandonment and
the underwriters will attend to the situation which develops. If the
abandonment be accepted, the shipper receives the insured value of his
goods and the insurers stand in his stead as owners. The policy will
also ordinarily protect against the loss if less than total and cover
all charges for salvage, general average, and warehousing to which the
property may be subjected. The shipper and his representatives are
entitled to a copy of the master's protest and all other information in
regard to the disaster and also to be consulted in regard to operations
for the release of the ship and cargo if they so desire.
=6. Arrival and Discharge.=--It is the duty of the consignee of the
cargo, apart from local custom or special contract, to be reasonably
diligent to ascertain when the ship arrives with his goods on board and
the master is not bound to seek him out and notify him.[14] He should,
however, report at the Custom House or make such other public
notification of arrival as is usual in the port. If the consignee does
not appear to claim and receive his goods, the master may land and
warehouse them at his expense. The master is bound to deliver the goods
to the right person, that is, the person entitled to them as owner or as
holder of the bill of lading and all outstanding bills of lading should
be taken up. They are quasi-negotiable, and, in the hands of third
parties, may become the basis of a claim for the goods.
The consignee, producing a proper bill of lading, is, of course,
entitled to inspect the goods before accepting them and the ship must
afford him the opportunity even if the instructions be not to deliver
them until paid for. If damaged, he may decline to receive them, but if
he accepts he should closely observe the provisions of his contract in
regard to notice and claim for damages. Most bills of lading contain
provisions limiting the time within which claims may be made and these,
when explicit, are enforced by the courts. Failure to present a claim in
accordance with such stipulations will usually exonerate the carrier
even if the damage was occasioned by his fault or negligence.
This subject is fully discussed by the Supreme Court in the case of
Constable _v._ National Steamship Co., 154 U. S. 51. The S. S. _Egypt_
arrived at New York from Liverpool at 1.45 P. M. and there being no room
for her at her owner's pier, was taken to the pier of the Inman Company,
where she was unladen, pursuant to a permit issued by the Collector of
Customs whereby the cargo was allowed to remain on the wharf for
forty-eight hours upon agreement by the owners of the ship that the
goods should be at the sole risk of the owners of the ship who would pay
the consignees the value of such cargo as might be stolen, burned or
otherwise lost. Notice of the time and place of discharge was then
posted upon the bulletin board of the Custom House in accordance with
the usual practice, but no notice was sent to the consignee, nor did he
have actual notice or knowledge of the arrival and unloading of the
vessel. On the night of the day of the arrival the goods were burned on
the pier upon which they had been unladen without negligence on the part
of the owners of the _Egypt_. The bill of lading contained this
provision:
The goods to be taken alongside by the consignee immediately the vessel
is ready to discharge, or otherwise they will be landed by the master
and deposited at the expense of the consignee, and at his risk of fire,
loss or injury in the warehouse provided for that purpose or in a
public store as the Collector of the Port of New York shall direct....
The United States Treasury having given permission for goods to remain
forty-eight hours on wharf at New York, any goods so left by consignee
will be at his or their risk of fire, loss or injury.
The Court (Brown, J.) held:
1. That the stipulation in the bill of lading that respondent should
not be liable for a fire, happening after unloading cargo was
reasonable and valid.
2. That the discharge of the cargo at the Inman pier, was not in the
eye of the law a deviation such as to render the carrier and insurer of
the goods so unladen.
3. That if any notice of such unloading was required at all, the
bulletin posted in the Custom House was sufficient under the practice
and usages of the port of New York.
4. That libellants, having taken no steps upon the faith of the cargo
being unladen at respondent's pier, were not prejudiced by the change.
5. That the agreement of the respondent with the Collector of Customs
to pay the consignees the value of the goods was not one of which the
libellants could avail themselves as adding to the obligations of their
contracts with the respondents.
=7. Freight and Demurrage.=--Freight is the price of transportation by
sea and demurrage has been called a kind of extended freight but is more
generally understood as the price of delay in loading or receiving the
cargo on the part of the shipper or consignee. Freight must be earned by
conveyance and delivery of the cargo but the ship is entitled to hold
the goods until payment is made. The contract of affreightment is very
succinctly described by Lord Ellenborough, in Hunter _v._ Prinsep, 10
East 378:
The shipowners undertake that they will carry the goods to the place of
destination, unless prevented by the dangers of the seas, or other
unavoidable casualties; and the freighter undertakes that if the goods
be delivered at the place of their destination he will pay the
stipulated freight; but it was only in that event, viz., of their
delivery at the place of destination, that he, the freighter, engages
to pay anything. If the ship be disabled from completing her voyage,
the shipowner may still entitle himself to the whole freight, by
forwarding the goods by some other means to the place of destination;
but he has no right to any freight if they be not so forwarded; unless
the forwarding them be dispensed with, or unless there be some new
bargain upon this subject. If the shipowner will not forward them, the
freighter is entitled to them without paying anything. One party,
therefore, if he forward them, or be prevented or discharged from doing
so, is entitled to his whole freight; and the other, if there be a
refusal to forward them, is entitled to have them without paying any
freight at all. The general property in the goods is in the freighter;
the shipowner has no right to withhold the possession from him, unless
he has either earned his freight, or is going to earn it. If no freight
be earned and he decline proceeding to earn any, the freighter has a
right to the possession.
Where a ship does not "break ground," that is to say, does not commence
her voyage at all, as in the case of the Tornado, 108 U. S. 342, in
which it appeared that the vessel was destroyed by fire before sailing,
the contract of affreightment is dissolved, or does not become
effective, and the shipper cannot recover freight which she did not even
begin to earn.
The lien for freight is a qualified one and will be lost by an
unconditional delivery. The same is true of demurrage but the personal
liability of the shipper or consignee will, of course, remain. The
amount of freight is usually fixed by agreement and specified in the
bill of lading.
So, also, are clauses in regard to demurrage. Strictly speaking, the
latter can only be recovered where it is expressly reserved in the
contract of carriage, but, where such stipulations have been omitted,
the same result is sometimes obtained by an action for damages in the
nature of demurrage on account of wrongful detention of the ship. The
question of whether the ship has been unreasonably delayed or wrongfully
detained is often a very confused one and its solution depends to a
great extent on the surrounding circumstances. When emergency demands
prevail and ports are crowded, the ship assumes some of the incidental
risks of delay in obtaining and discharging her cargo, and, unless the
contract is plain, can hardly insist upon more than the same treatment
as others in similar situations are obtaining. When disputes arise,
neither party should press his position to the extent of causing further
delay, as by withholding or refusing the goods. Admiralty practice
abounds in opportunities to prevent unnecessary delay by bonds or
stipulations and the parties should take advantage of these or risk the
disfavor of the court in which their litigation proceeds.
=8. Unfair Freight Rates.=--The Merchant Marine Act of June 5, 1920 (see
Appendix), forbids and makes a misdemeanor the allowance of deferred
rebate of freight to any shipper; the use of fighting ships, _i.e._,
vessels used for reducing competition by driving any carrier out of the
trade; retaliation against other shippers by refusal of space
accommodations when the same are available, and the making of any
unjustly discriminatory contract with any shipper based on the volume of
goods offered, or the making of any unjustly discriminatory charge
against any shipper in the matter of accommodations, loading and landing
or settlement of claims. The Shipping Board is authorized to investigate
alleged violations of these provisions and the Secretary of Commerce is
directed to refuse the right of entry to any ship owned or operated by a
carrier whom the Shipping Board has found to be guilty of such
violations.
=9. Passengers.=--The carriage of passengers by water is regulated by
substantially the same rules in regard to fares, tickets, special
contracts and baggage as carriage by land.
The passenger is entitled to a reasonable amount of baggage having
regard to his station in life and the character of the journey. As to
articles which he retains in his personal custody the carrier is not an
insurer but is liable only for negligence; the mere fact of loss creates
no presumption against the carrier (Clark _v._ Burns, 118 Mass. 275).
The carrier is liable for articles stolen from the passenger by its
employees (Minnetonka, 146 Fed. 509) and the conditions and limitations
as to value of baggage usually printed on the tickets are of slight
value in the courts (Majestic, 166 U. S. 375).
=10. Reciprocal Duties.=--The real differences between rules of law
applicable to land and sea travel result from their own peculiar
circumstances. Thus, the relation of passenger and ship necessarily
implies something more than mere ship room and personal existence on
board. For the time being the ship's company and the passengers
constitute a community by themselves and remote from the rest of the
world. There must be a certain amount of mutual toleration and
concession. The situation requires, indeed, not mere toleration but
respectful treatment,--"That decency in demeanor which constitutes the
charm of social life, that attention which mitigates evils without
reluctance, and that promptitude which administers aid to distress."
(Chamberlain _v._ Chandler, 3 Mason 242; Western States, 151 Fed. 929.)
The passengers must be prepared to submit on proper occasions to the
authority of the master, which may, indeed, occasionally become despotic
where the safety of the ship is involved. He may compel passengers to
work at the pumps, for example, in the face of actual danger (1 Parsons'
Shipping and Admiralty, 637) or even to risk their lives if the common
safety requires it (Boyce _v._ Bayliffe, 1 Campbell, 58). Of course this
power must be judiciously exercised and if it is overstepped the law
will afford redress. The old case of Prendergast _v._ Compton, 8 C. & P.
454, is illustrative; the defendant was master of a ship from Madras for
London, in the days when long voyages around the Cape were common. The
plaintiff was a passenger whose table manners were distasteful to the
other members of the master's table; he first attempted to correct them
by mild suggestions and remonstrances, but the plaintiff responded by
threatening to cane the master, who thereupon excluded him from the
cabin and otherwise subjected him to discipline during the voyage. On
arrival in port the plaintiff brought this action and the case affords
an interesting discussion of the subject; the question was finally left
to a jury who concluded that the master had exceeded his authority and
allowed the plaintiff twenty-five pounds as damages.
The maritime law required a high degree of care for the protection of
the passenger from personal injury. A ship must answer for such damages
as might have been avoided by the exercise of unusual diligence and
extraordinary skill. Although not technically an insurer, a presumption
against a ship will be heavy in such cases, and ordinarily damages will
follow unless it can be shown that the injury was entirely due to the
passenger's own fault.[15]
=11. Baggage.=--Passengers' baggage or luggage is in, substantially, the
same class as cargo as far as the liability of the ship is concerned.
Some cases have held that there was an exception of property which the
passenger retained in his own custody but the general rule is that this
only relieves the carrier where the passenger's own negligence
occasioned the loss; in such cases the passenger must show that the
shipowner failed to exercise reasonable and proper care. The matter is
frequently covered by express stipulations in the ticket or contract of
carriage but these will not usually be enforced in the American courts
unless reasonable and plainly agreed to by the passenger. Thus arbitrary
limitations of the value of the baggage of a steamship passenger are
void. Passengers' baggage is not limited to wearing apparel and similar
articles, although the general rule is that it must be confined to such
articles as are reasonably required for the purposes of the journey,
having in mind its general scope and the station and circumstances of
the passenger. It is not permitted to impose extraordinary liabilities
upon the ship by carrying as baggage goods of great value which should
be otherwise shipped. In a recent case recovery was allowed for the loss
of a manuscript of a manual on Greek grammar contained in the
passenger's trunk; he valued it at $5,000; the Court, however, allowed
only $500, on the theory that it was an imposition on the carrier to
place so valuable an original in his baggage when he might have carried
an equally serviceable copy.
=12. Personal Injuries.=--Passenger carriers by water are subject to the
same general liabilities of carriers by land. The highest degree of care
for the safety of the passenger is required of the ship and negligence
is presumed where an injury is sustained on board. It is the duty of the
vessel to protect its passengers from harm by reason of defects in
construction or acts of the ship's company or other passengers. Actions
for damages may be brought against the ship or the owner. An injured
passenger is entitled to at least the same degree of care and attention
that a member of the crew is and may have an additional claim if this is
neglected. The cases exhibit a wide range of injuries on shipboard for
which recoveries have been allowed; thus, where a sailor carelessly fell
from the foretopmast upon a passenger, a libel was sustained; so where a
passenger was thrown from his berth by the pitching of the ship in a
storm, through absence of a protecting board; so for failure to accord
to a passenger respectful treatment by the officers and crew; for
failure properly to protect exposed parts of machinery and openings in
the deck; failure to provide a sufficient supply of wholesome food;
furnishing unsanitary drinking water; and, indeed, for the negligence of
those conveying passengers to and from the ship or on excursion trips on
shore when advertised as a part of the voyage in question. The ship is
required to have a doctor on board for the care of passengers but, when
due care has been exercised in his selection, there is no liability for
his mistakes or negligence in his professional work.
Cases abound illustrative of these principles. For example the old cases
of Behrens _v._ Furnessia, 35 Fed. 798, and the City of Panama, 101
U. S. 453, in both of which passengers were injured by falling down open
hatchways, which were customarily kept closed, and the more modern case
of Dempster Shipping Co. _v._ Pouppirt, 125 Fed. 732, where the
plaintiff while on deck was struck by a beam which was being thrown
overboard. In the two cases first mentioned plaintiffs recovered
damages, it being considered that under the circumstances the ship was
negligent in leaving open and unguarded hatchways which were customarily
kept closed and over which passengers were accustomed to pass. In the
case last cited plaintiff failed to recover because it appeared that he
had voluntarily placed himself in dangerous proximity to boards that
were being swung over the side. The law is quite fully reviewed in these
cases. In the City of Panama, it was said:
Owners of vessels, engaged in carrying passengers, assume obligations
somewhat different from those whose vessels are employed as common
carriers of merchandise. Obligations of the kind in the former case
are, in some few respects, less extensive and more qualified than in
the latter, as the owners of the vessel carrying passengers are not
insurers of the lives of their passengers, nor even of their safety;
but in most other respects the obligations assumed are equally
comprehensive and even more stringent....
Passengers must take the risk incident to the mode of travel which they
select, but those risks in the legal sense are only such as the utmost
care, skill and caution of the carrier, in the preparation and
management of the means of conveyance are unable to avert.
In the case of Shipping Co. _v._ Pouppirt, the court quoted with
approval the following language from Railway Co. _v._ Myers, 80 Fed. 361:
If a passenger of mature age leaves the place which he knows has been
provided for him, and, without any occasion for so doing, or to gratify
his curiosity, goes to another, where the dangers are greater, or
places himself in a dangerous attitude, which he was not intended to
assume, or if he disobeys any reasonable regulation of the carrier, it
should be held that he assumes whatever increased risk of injury is
incurred in so doing.
=13. Loss of Life.=--Until March 30, 1920, the general maritime law did
not give any right to recover for loss of life. On that date an act of
Congress was approved, the text of which follows:
That whenever the death of a person shall be caused by wrongful act,
neglect or default occurring on the high seas beyond a marine league
from the shores of any State, or the District of Columbia, or the
Territories or dependencies of the United States, the personal
representatives of the decedent may maintain a suit for damages in the
district courts of the United States, in admiralty, for the exclusive
benefit of the decedent's wife, husband, parent, child, or dependent
relative against the vessel, person, or corporation which would have
been liable if death had not ensued.
Sec. 2. That the recovery in such suit shall be a fair and just
compensation for the pecuniary loss sustained by the persons for whose
benefit the suit is brought and shall be apportioned among them by the
court in proportion to the loss they may severally have suffered by
reason of the death of the person by whose representative the suit is
brought.
Sec. 3. That such suit shall be begun within two years from the date of
such wrongful act, neglect, or default, unless during that period there
has not been reasonable opportunity for securing jurisdiction of the
vessel, person or corporation sought to be charged; but after the
expiration of such period of two years the right of action hereby given
shall not be deemed to have lapsed until ninety days after a reasonable
opportunity to secure jurisdiction has offered.
Sec. 4. That whenever a right of action is granted by the law of any
foreign State on account of death by wrongful act, neglect, or default,
occurring upon the high seas, such right may be maintained in an
appropriate action in admiralty in the courts of the United States
without abatement in respect to the amount for which recovery is
authorized, any statute of the United States to the contrary
notwithstanding.
Sec. 5. That, if a person die as the result of such wrongful act,
neglect, or default as is mentioned in section 1 during the pendency in
a court of admiralty of the United States of a suit to recover damages
for personal injuries in respect of such act, neglect, or default, the
personal representative of the decedent may be substituted as a party
and the suit may proceed as a suit under this Act for the recovery of
the compensation provided in section 2.
Sec. 6. That in suits under this Act the fact that the decedent has
been guilty of contributory negligence shall not bar recovery, but the
court shall take into consideration the degree of negligence
attributable to the decedent and reduce the recovery accordingly.
Sec. 7. That the provisions of any State statute giving or regulating
rights of action or remedies for death shall not be affected by this
Act. Nor shall this Act apply to the Great Lakes or to any waters
within the territorial limits of any State, or to any navigable waters
in the Panama Canal Zone.
Sec. 8. That this Act shall not affect any pending suit, action, or
proceeding.
It will be observed that this act places loss of life on the high seas
in the same category as personal injuries. The suit is to be brought by
the personal representative of the decedent for the benefit of the
decedent's wife, husband, parent, child or dependent relative. It would
appear that if there are no such persons an action could not be
maintained. This would seem to exclude a right of action where the
decedent leaves only creditors or heirs of more remote degree than those
enumerated. Nearly all the states have statutes providing for recovery
on account of loss of life at sea and these statutes have hitherto been
enforced in the admiralty courts. Section 7 provides that the federal
act shall not affect rights of action or remedies for death provided by
state laws. The act is broad enough in terms to include a right of
action for the death of seamen, but there is another statute covering
such cases (see Chapter V, § 6, _supra_).
The act does not affect the right of the owners of a ship to limit their
liability. Claims for loss of life when properly _payable_ under the act
would apparently be included among claims to be paid out of the limited
liability.
The act does not enlarge the responsibility of the owners. Whether they
are responsible _in personam_, or whether the vessel is solely
responsible _in rem_ depends on the privity or knowledge of the owner,
as discussed in Chapter VIII, § 9 _infra_.
REFERENCES FOR GENERAL READING
_Carriage of Goods by Sea_, T. G. Carver. London, 1909; Stevens and
Sons, Ltd.
_Law of Carriers_, E. P. Wheeler. New York, 1890; Baker, Voorhis & Co.
_Maritime Law_, Albert Saunders. London, 1901; Sweet & Maxwell, Ltd.
Fitzgerald, 212 Fed. 678.
Wildcroft, 201, U. S., 378.
Sumner _v._ Caswell, 20 Fed. 249.
Dan, 40 Fed. 691.
Harlem, 27 Fed. 236.
Hattie P., 63 Fed. 1015.
Manitoba, 104 Fed. 145.
Majestic, 56 Fed. 244.
Normania, 62 Fed. 469.
Kensington, 183 U. S. 263.
[13] See p. 181.
[14] Prior to the advent of steam navigation this was not the rule. A
carrier, in order to discharge his liability, was obliged to deliver the
cargo upon the usual wharf of the vessel, and give actual notice to the
consignee, if he were known.
[15] See § 2, this chapter, _infra_.
CHAPTER VII
CONTRACTS OF AFFREIGHTMENT, BILLS OF LADING AND CHARTER PARTIES
=1. Definitions.=--Contracts of affreightment are for the carriage of
goods in vessels. This definition is sufficiently comprehensive to
include contracts evidenced by bills of lading and charter parties. In
practice the expression, "contracts of affreightment," is commonly used
in a somewhat narrower sense to indicate those cases in which a vessel
is operated by her owners on their own account, contracting directly
with the shippers.
A bill of lading is the document issued for carriage of goods which form
only a part of the cargo; it is both a receipt and a contract of
carriage.
A charter party is a contract in writing by which the shipowner lets the
ship in whole or in part. It corresponds to a lease of lands or
buildings. The name comes from the fact that it was formerly prepared on
a card which was then cut into two parts from top to bottom (_carta
partita_) and each of the parties retained one for production when
required and thus prevented counterfeiting.
By an order dated October 1, 1920, made pursuant to the provisions of
the Merchant Marine Act (see Appendix), the Shipping Board requires two
certified copies of every charter or contract of affreightment made on
American or foreign steam or sailing vessels leaving continental United
States to be filed with the Chartering Executive Committee, 45 Broadway,
New York, which will then issue a certificate of filing. Unless this is
done, clearance will be refused the vessel; but where there is not time
to file certified copies before sailing, a letter or telegram to the
Committee, giving all details of the contract, will answer the purpose.
General cargo and passenger vessels, those in ballast and those carrying
cargo for owners are not subject to this regulation.
Freight is the price of the carriage of goods by sea under a bill of
lading, and also the sum agreed on for the hire of the ship under a
charter party.
Before discussing the particular features of these contracts it will be
well to observe certain elements which enter into substantially all
contracts for the carriage of goods for hire. These are the warranty of
seaworthiness, the obligation against deviation and the exemption of the
carrier from liability on account of the perils of the sea.
In the Chapter, "Liabilities and Limitations," § 10, will be found a
discussion of the Harter Act. This must be taken into consideration in
connection with these subjects.
=2. Seaworthiness.=--The warranty of seaworthiness underlies all
contracts between the vessel and the shipper. It is an implied warranty
on the part of the owner that the vessel is seaworthy, and sufficient
for the use to which she is to be devoted. This warranty may be modified
between the parties as they see fit by express agreement or necessary
implication; a man may hire an unseaworthy boat and agree to put her in
good condition; a charterer who examines and accepts a ship whose
condition is defective cannot complain of an injury to the cargo caused
by such defects. Otherwise the warranty subsists and the charterer
cannot be held liable to the owner for depreciation in the ship
resulting from unseaworthiness and has also the right to cancel the
charter on the same ground. He may also hold the owner for such damages
as he is obliged to pay third parties on account of unseaworthiness.
This warranty, unless restricted by agreement, extends to latent or
hidden defects, since it requires that the ship be seaworthy at the
commencement of the voyage and is not satisfied by the fact that the
shipowner does not know her to be unseaworthy or has used his best
efforts to make her seaworthy. It runs up to the time she breaks ground
for the voyage, but is modified by the results of subsequent excepted
perils until it is reasonably practicable to repair them.
In Bowring _v._ Thebaud, 56 Fed. 520, it was held:
The shipowner in every contract of affreightment impliedly engages with
the shipper of the goods that his ship on the commencement of her
voyage is seaworthy for that voyage and supplied with a competent crew.
And the following statement of the law, from Carver on _Carriage by
Sea_, was approved:
The warranty of seaworthiness for a voyage must be satisfied at the
time of sailing with the cargo. It is not sufficient that the ship was
fit for the voyage while the cargo was being taken on, if she became
unfit before she started. The warranty in truth appears to be a double
one, viz., that the ship shall be fit to receive the cargo when
receiving it and shall be fit to sail at the time of sailing.
The Court proceeded:
The warranty that the vessel is tight and fit for the employment for
which she is offered,--that is, for the contemplated voyage on which
she is to carry cargo,--is the very foundation and substratum of the
contract of charter. The exception in a charter party as to dangers of
the seas and navigation is not applicable to the perils and dangers
which arise from the breach of the owner's obligation. Consequently it
does not apply to the warranty of seaworthiness. Undoubtedly in cases
where, under the language of the charter party, the warranty is
satisfied if the vessel is seaworthy at the commencement of a voyage
preliminary to her being laden, the shipowner is relieved by the
exception from liability for any peril of the seas or navigation which
are subsequently encountered without fault or negligence on his
part.... In all of these adjudications, the question was as to the
meaning of the contract of the parties. This must be decided in each
case by applying the rules of interpretation to the contract on hand.
=3. Deviation.=--The ship must cover the proposed voyage without
deviation. Deviation is defined to be "a voluntary departure without
necessity or reasonable cause, from the regular and usual course of a
voyage" (Hostetter _v._ Park, 137 U. S. 30). Deviation makes the carrier
liable for losses occasioned thereby as an insurer notwithstanding any
limitation of liability in the contract of carriage. It may be excused
for the purpose of saving life or avoiding perils if the master acts in
accordance with sound judgment, and it is excused if it be the custom of
the trade to put in at a particular port on similar voyages. The
consignee, if he intends to insist upon the deviation as a defense to
his liability for freight, should refuse to receive the cargo.
An instructive discussion of the rule with regard to deviation is found
in the case of the Indrapura, 171 Fed. 929, where a vessel bound from
Hong Kong to Portland, Oregon, was placed on a drydock at Hong Kong
without maritime necessity and there caught fire, whereby the cargo was
injured. The owners of the cargo libeled the ship for their damages,
alleging that the unnecessary docking of the ship was a deviation. The
Court said:
The term "deviation" in the law of shipping has at the present day a
varied meaning and wide significance. It was originally employed no
doubt, for the purpose its lexicographical definition implies, namely,
to express the wandering or straying of a vessel from the customary
course of voyage; but it seems now to comprehend in general every
conduct of a ship or other vehicle used in commerce tending to vary or
increase the risk incident to a shipment. Thus delay in starting a
shipment when unreasonable or unexcused came to be regarded as a
deviation, not because the vehicle employed departed from the usual
route of travel, but because the risk of shipment was changed or
increased, and became, in effect, not the same as the one with
reference to which the parties contracted.
And in Bulkley _v._ Insurance Co., Fed. Cas. No. 2,118, it was said:
The shortness of time or distance of deviation is immaterial if
voluntary and without necessity, and not justified by usage.
The contract of carriage frequently purports to give the ship liberty to
make deviation. This is construed strictly against the owner of the
vessel. She may make only "reasonable deviation." She may call at a port
lying directly on the route of her voyage, but may not go out of her way
to any considerable degree, and if she does so and the shipper is
damaged the exemption will not avail to protect her owner.
=4. Perils of the Sea.=--Almost every contract in respect of employment
of the ship contains an express or implied exception of perils of the
seas. This provides an exemption of liability on account of losses
caused by these perils. These casualties cannot be accurately defined.
The expression denotes accidents peculiarly incident to navigation,
whether on lake, river, or the deep sea, not attributable to any human
agency or intervention. It is rather more comprehensive than the "acts
of God," but by no means includes all the dangers which may occur while
journeying on the sea. Collision is a peril of the sea if it occurs
without fault of either ship but not if by reason of the negligence of
the carrying ship. Tempests, rocks, shoals, icebergs and other obstacles
are within the expression; so are incursions of sea water, which damage
the goods, as well as such bad weather as prevents ordinary ventilation
and causes the cargo to heat and sweat. Where the peril is the proximate
cause of the loss, the shipowner is excused.
=5. Fire.=--Sec. 4282, U. S. Rev. St., is as follows:
No owner of any vessel shall be liable to answer for or make good to any
person any loss or damage which may happen to any merchandise
whatsoever, which shall be shipped, taken in, or put on board any such
vessel, by reason or by means of any fire happening to or on board the
vessel, unless such fire is caused by the design or neglect of such
owner.
It will be noticed that while this statute provides complete protection
against fire on shipboard it does not protect against liability for
damage by fire occurring on shore. To cover this it is common to insert
in the contract of carriage an exemption from loss "before loading in
the ship or after unloading." Such an exception is upheld by the courts
where fire is not attributable to the neglect of the owner of the ship.
Such a case was that of Constable _v._ National Steamship Co., 154 U. S.
51, where goods were delivered on the pier of the Steamship Company and
injured by fire before they were laden. The Court held that the clause
in the bill of lading, excepting loss by fire "before loading in the
ship or after unloading," was a valid defense.
=6. Restraint of Princes.=--The contract usually contains a provision
exempting the shipowner from liability for damage due to "restraint of
princes." This quaint phrase means any kind of governmental action which
interrupts the voyage, or otherwise prevents the performance of the
contract. These restraints occur most often during war, although they
may happen in time of peace, as in the case of detention in quarantine.
If the restraint results from some action taken by the shipowner, such
as the taking on of contraband goods, the clause will not relieve him
from liability.
A simple illustration of the restraint of princes clause appears in
Allanwilde Transport Corp. _v._ Vacuum Co., 248 U. S. 377, where a
sailing vessel, the _Allanwilde_, was chartered to the libellants for
the transportation of a cargo of oil and nails to Rochefort, France. The
freight was prepaid. She started on the voyage and while she was at sea
the government prohibited sailing vessels departing from the United
States on voyages which would carry them through the war zone. The
vessel ran into bad weather and was obliged to put back to the United
States for repairs. By reason of the governmental order she did not
resume her voyage. The owners of the cargo libeled the vessel to recover
the prepaid freight. They also presented a claim for damages. The Court
held that the restraint of princes clause of the charter party was a
valid defense to the suit. Thus the vessel retained the freight which
had been prepaid, although the voyage did not take place, and the
cargo-owners did not recover their damages.
=7. Freight.=--(a) _Dead Freight._--In case the charter party provides
for the shipment of a full cargo by the charterer and compensation to
the owner of the ship is payable per unit of cargo, the shipowner will
be entitled to recover from the charterer the amount of freight which
would have been payable by so much cargo as could have occupied the
space left vacant. This is called dead freight.
On the other hand cases arise in which the owner has to pay dead freight
to the charterers. This occurs where the compensation for the ship is a
lump sum and the owner fails to load a full cargo.
(b) _When Freight is Earned._--Freight is earned when the goods have
been carried to their destination and not until then. If it be paid in
advance and the goods do not arrive at destination it must be refunded.
Of course, the parties may by their express stipulations in charter
parties, bills of lading and other forms of agreement change these
rules, and frequently do so. For example it is sometimes provided that
prepaid freight shall be considered earned on the shipment of the goods,
or if the ship be lost the freight shall not be refunded. Such bargains
are, of course, entirely legal and will be enforced by the courts
according to their tenor.
Charters sometimes provide for the carrying of cargo out and back. Here
the terms of the contract with reference to the outbound and
homeward-bound voyage are inseparable. No freight is earned until the
ship returns with the homeward-bound cargo. But if the contract can be
construed so as to regard each voyage separately, the freight for the
outbound voyage will be earned at destination whether the ship returns
with cargo or not.
=8. Contracts of Affreightment.=--Where the contract is not plainly a
demise of the ship, i.e., a conveyance which turns over her full
operation and control, it will not be so interpreted, and the owner will
be in a position of a carrier of goods or as himself contracting for
such other service by the ship as the charter requires, that is to say,
the contract is one of affreightment.
Thus in Hagar _v._ Clark, 78 N. Y. 45, it was held:
If it remains doubtful whether the charterers were to have sole
possession and control of the vessel during the voyage or were to be
constituted owners _pro hac vice_, then the general owners must be
deemed such for their rights and authority continue until displaced by
some clear and definite transfer of them. The legal presumption is in
favor of continuance of ownership and against any transfer of the ship
to the charterer for the voyage, and is said to be so strong that, if
the end sought to be effected by the charter party can conveniently be
accomplished without the transfer of the vessel to the charterers,
courts of justice are not inclined to regard the contract as a demise
of the ship, although there may be express words of grant in the formal
part of the instrument.
The master remains the agent of the owner under any contract falling
short of a demise, and the owner is bound by all his acts and omissions
within the scope of his authority as in the ordinary relation of
carriage by sea. If the instrument amounts to a demise, the master is
the charterer's agent, and not that of the owner. Bills of lading or
other contracts of affreightment signed by the master bind the owner or
the owner _pro hac vice_ on the theory of the master's agency. This
subject is discussed in the case of Freeman, 18 How. 182, quoted
extensively in Chapter III, § 10, _supra_. Charter parties frequently
contain a clause whereby the charterer agrees to indemnify the shipowner
against any liability arising from the signature of bills of lading by
the master. Probably this clause would be implied in a charter party if
not expressed therein. This gives the owner of the ship a right of
action over against the charterer on account of any liability to which
the shipowner or ship may have been subjected at the hands of the
shipper. Thus if the charter party contained covenants for the
protection of the shipowner under certain circumstances and the bill of
lading issued by the master did not contain these restrictions and the
shipper recovered under the bill of lading against the ship or her
owner, the latter in turn could recover against the charterer (Field
Line _v._ South Atlantic Co., 201 Fed. 301).
=9. Bills of Lading.=--The forms differ greatly in contents and legal
effect but have the common features of an acknowledgment of the receipt
of the goods; a description by which they may be identified; an
agreement to carry to destination and deliver; the rate of freight and
an exception of certain perils. In addition to these features it has
been usual to include more or less elaborate provisions tending to a
diminution or limitation of the ship's liability, sometimes extended to
great length in small or illegible type, and the attempt to take
advantage of these is sometimes described as "fine print and coarse
work." These stipulations, in so far as they attempt to exempt the
shipowner from the consequences of his own or his servants' negligence
are not enforced in courts of the United States on grounds of public
policy. They probably, however, have some value as deterrents of claims
and litigation but should be studied in connection with the Harter Act
(7 Comp. St. §§ 8029-8035). (See Chapter VIII, p. 119.) The common
carrier by sea is subject to the same rules of extraordinary liability
as the common carrier by land but this liability is controlled by the
admiralty law of limited liability (Liabilities and Limitations, Chapter
VIII, p. 112) and the provisions of the Harter Act. Like the land
carrier, he may also enlarge or diminish his liability by special
contract; such a contract must be clear and plain, based upon a meeting
of minds, due consideration or mutuality, and conformity with law; it
will not, however, protect against negligence on the part of the
carrier. An example is found in the Guildhall, 58 Fed. 796, where a
cargo was damaged in a collision occasioned by improper navigation. The
owners of the ship based their defense on a provision in the bill of
lading, which attempted to exempt from liability for "any neglect or
defaults of the master, mariners, or others in the service of the
owners, collision, perils of the seas," etc. It was held:
These stipulations are valid by the law of Rotterdam (the port of
departure), and of England. But the obligation of the steamer, as a
common carrier, was to deliver her cargo safely in this country, at the
port of New York. As against the consignee and owner here, she can not
commit torts on the high seas against his property with immunity, nor
justify such torts, except by some valid contract, proved according to
the law of the forum. By numerous decisions of the Supreme Court of the
United States, stipulations like these, inserted by a common carrier in
a bill of lading, are, first, void as against public policy; and
secondly, they are not evidence of any contract to that effect on the
part of the shipper and consignee; because unreasonable and not having
the necessary element of voluntary assent.
See also Compania de Navigacion La Flecha _v._ Brauer, 168 U. S. 104:
Exceptions in a bill of lading or charter-party, inserted by the
shipowner for his own benefit, are unquestionably to be construed most
strongly against him.
In this case the cargo consisted of cattle, and the bill of lading
contained this:
On deck at owner's risk; steamer not to be held accountable for
accident to or mortality of the animals from whatever cause arising....
It is also mutually agreed that the carrier shall not be liable for
loss or damage occasioned by ... accidents of navigation, of whatsoever
kind, even when occasioned by the negligence, default or error in
judgment of the pilot, master, mariners or other servants of the
shipowner.
The vessel was improperly ballasted and rolled over on her beam
ends. Some of the cattle were injured and in order to right the
ship a number of them were thrown overboard, no discrimination
being exercised between sound animals and those which had been
injured. The court after laying down the general principles
above quoted, further held:
The bill of lading itself shows that all the cattle to be carried under
this contract were to be on deck. The words "on deck at owner's risk"
cannot have been intended by the parties to cover risks from all causes
whatsoever, including negligent or willful acts of the master and crew.
To give so broad an interpretation to words of exception, inserted by
the carrier and for his benefit, would be contrary to settled rules of
construction, and would render nugatory many of the subsequent
stipulations of the bill of lading.
The wrongful jettison of the sound cattle by the act of the carrier's
servants cannot reasonably, or consistently with the line of English
authorities already cited, or with our own decisions, be considered
either as an "accident or mortality of the animals," or as a "loss or
damage occasioned by causes beyond his control, by the perils of the
sea, or other waters," or yet as a loss or damage "by collisions,
stranding, or other accidents of navigation." There having been no
collision, stranding, or other accident of navigation, there was
nothing to which the only stipulation in the bill of lading against the
consequence of negligence, default, or error in judgment of the master
and crew could apply.
The bill of lading may be both a receipt and a contract and where the
shipper accepts it at the time of delivering his goods, he is presumed
to have agreed to its stipulations so far as they are reasonable and
just. Such a contract merges all prior and contemporaneous negotiations
and precludes parole evidence to vary its terms, but the subsequent
delivery of a bill of lading will not necessarily affect a prior
agreement, written or verbal, for the carriage; in other words, when a
contract has been already made, the carrier cannot change it by a bill
of lading without the shipper's consent.
If the holder of the bill of lading is also the charterer the rights and
obligations of the parties will ordinarily be governed by the charter
party. Where the bill of lading incorporates the charter party by
reference to it, of course the holder of the bill of lading is bound by
the terms of the charter party. Where the charter party provides that
bills of lading are to be made subject to the provisions of the charter,
the rights of the holder of the bill of lading are subject to the
charter party if he had knowledge or notice of it.
A suit in which a conflict arose between a bill of lading issued by a
charterer and master, and a charter party of prior date, was the early
case of Gracie _v._ Palmer, 8 Wheat. 605. The owners of the ship
_America_ chartered her at Philadelphia for a long voyage, the whole
charter hire to be paid on the return of the ship to Philadelphia, but
before the discharge of cargo. The owners appointed the master. In
Calcutta, the charterer, who was on board, with the master's consent,
got an advance of money from Palmer & Company, a Calcutta firm, and gave
Palmer & Company a bill of lading which stipulated for the delivery of
the cargo free of freight to Palmer & Company's agent in Philadelphia,
who were to sell the goods and collect the amount of the advance out of
the proceeds, unless the charterer's drafts for the amount of the
advance, drawn in Palmer & Company's favor on a Philadelphia house,
should be honored, in which event Palmer & Company's agents should
deliver the goods to the charterer. The master signed the bill of lading
given to Palmer & Company in Calcutta, which contained the clause,
"Freight for the said goods having been settled here." The drawee
refused to accept the charterer's drafts, and Palmer & Company's
Philadelphia agent accordingly demanded the goods on the arrival of the
ship. It was held, sustaining the contention of Daniel Webster, who
represented the owners, that the shipowner had a lien on the cargo for
the charter hire, the Court saying:
On what principles rests the general lien of goods for freight? The
master is the agent of the shipowner, to receive and transport; the
goods are improved in value, by the costs and cares of transportation.
As the bailee of the shipper, the goods are in the custody and
possession of the master and shipowner, and the law will not suffer
that possession to be violated, until the laborer has received his
hire. But this is literally the effect of that provision in the charter
party which deprives the charterer of the right of landing the cargo
until the stipulated hire be paid; or rather it would seem to go beyond
it, and impose a liability beyond what the common law exacts. It may,
therefore, be fairly construed into a stipulation, that the charterer
should, under no circumstances, dispense with the legal lien of the
shipowner.
* * * * *
That the shipowner would not confide in the charter to land his goods
without buying off his right to detain, is expressly proved by the
contract. That contract was accessible to the foreign shipper, and
ought to have been looked into to determine the extent of the power
vested in the charterer.... The charterer has contracted with the
shipper to do an act, which he could not perform without violating his
own contract to the shipowner, and must therefore be considered as
having entered into a contract, subordinate in its nature to that
previously existing between the owner and charterer.
On-the other hand, it is held that the innocent _bona fide_ endorsee of
a bill of lading, which makes no reference to the charter party, and
contains nothing to put him on notice or inquiry as to the existence of
the charter party, is liable for freight only according to the terms of
the bill of lading.
=10. Statements in Bills of Lading.=--The bill of lading commonly
contains a statement of the number of packages or the weight of the
goods or other representations with regard to the quantity shipped.
There are several rules applicable to the effect of such statements.
Where they appear in bills of lading covering shipments in interstate
commerce or shipments from the United States to foreign ports, the
effect of such statements is governed by the Federal Bill of Lading Act,
approved August 29, 1916 (39 St. at L. 538). Under this act (§ 20) if
the goods are laden by the _carrier_ he is bound to count the packages,
or ascertain the kind and quantity of bulk cargo. He is forbidden to
insert in the bill of lading or in any other document relating to the
ship any expression such as "shipper's weight, load and count," or any
language indicating that the goods were loaded by the shipper and the
description of them made by him. Where the goods are loaded by the
_shipper_ the act provides:
Section 21. That when package freight or bulk freight is loaded by a
shipper and the goods are described in a bill of lading merely by a
statement of marks or labels upon them or upon packages containing
them, or by a statement that the goods are said to be goods of a
certain kind or quantity, or in a certain condition, or it is stated in
the bill of lading that packages are said to contain goods of a certain
kind or quantity or in a certain condition, or that the contents of
packages are unknown, or words of like purport are contained in the
bills of lading, such statements, if true, shall not make liable the
carrier issuing the bill of lading, although the goods are not of the
kind or quantity or in the condition which the marks or labels upon
them indicate, or of the kind or quantity or in the condition they were
said to be by the consignor. The carrier may also by inserting in the
bill of lading the words "Shipper's weight, load and count," or other
words of like purport indicate that the goods were loaded by the
shipper and the description of them made by him; and if such statement
be true, the carrier shall not be liable for damages caused by the
improper loading or by the non-receipt or by the misdescription of the
goods described in the bill of lading: _Provided, however_, Where the
shipper of bulk freight installs and maintains adequate facilities for
weighing such freight, and the same are available to the carrier, then
the carrier, upon written request of such shipper and when given a
reasonable opportunity so to do, shall ascertain the kind and quantity
of bulk freight within a reasonable time after such written request,
and the carrier shall not in such cases insert in the bill of lading
the words "Shipper's weight," or other words of like purport, and if so
inserted contrary to the provisions of this section, said words shall
be treated as null and void and as if not inserted therein.
This act of Congress has no application to bills of lading for goods
shipped from foreign ports and the rules governing representations in
such bills of lading are different. Bills of lading for shipment from
foreign ports when issued by the master do not bind the shipowner of the
vessel for the number of packages or quantity of goods which the bill
represents as having been shipped. This is the rule which prevailed as
to all bills of lading prior to the passage of the act. It is based on
the theory that the implied agency of the master for the shipowner does
not extend to making misrepresentations in the bill of lading, so as to
make it, as against the shipowner, a receipt for goods not received. It
was intended to protect the shipowner against frauds committed
collusively between the master and shipper who have been known to enter
into conspiracies whereby the master issued false bills of lading upon
which the shipper subsequently raised money by assigning the bill.
There is another class of representations commonly found in the bill of
lading relating to the condition of the goods, as that they are in "good
condition" or "damaged condition." Where the goods are loaded by the
shipper the effect of such statements is governed by § 21 of the Bill of
Lading Act, above quoted, as to shipments in interstate commerce or from
United States ports. In other cases, e.g., where the carrier does the
loading or where the act is not applicable, the rule is that
representation made by the master in the bill of lading as to condition,
bind the shipowner where the bill of lading has passed into the hands of
a _bona fide_ holder for value, the theory being that representations as
to order and condition are within the scope of the master's authority.
=11. Negotiability of Bills of Lading.=--In mercantile law certain
things have the quality of negotiability, that is, they are like money
in that the title may pass from hand to hand by delivery without the
necessity of inquiry into the antecedent ownership. Promissory notes,
checks and drafts, payable to order or bearer, or so endorsed, are
negotiable and the holder's title is not affected by any representations
or transactions between the original parties or prior holders, without
his knowledge. Many attempts have been made to give bills of lading the
full quality of negotiability, but the courts have not favored the
effort. Bills of lading are said to be quasi-negotiable. They may be
transferred by endorsement and delivery and thereby pass the same title
to the goods which they represent as if the goods themselves were
handled. But prior to the passage of the Federal Bill of Lading Act,
above mentioned, the transferee took only the title of his transferor,
subject to all rights which may have been asserted against him. The bill
of lading remained a mere substitute for the goods and the purchaser of
a stolen bill, for example, acquired no more title than he would in the
case of stolen goods. The latest legislation designed to confer upon
bills of lading the quality of negotiable paper is that contained in
§ 22 of the Bill of Lading Act, which is as follows:
That if a bill of lading has been issued by a carrier or on his behalf
by an agent or employee the scope of whose actual or apparent authority
includes the receiving of goods and issuing bills of lading therefor
for transportation in commerce among the several States and with
foreign nations, the carrier shall be liable to (a) the owner of goods
covered by a straight bill subject to existing rights of stoppage in
transition or (b) the holder of an order bill, who has given value in
good faith, relying upon the description therein of the goods, for
damages caused by the non-receipt by the carrier of all or part of the
goods or their failure to correspond with the description thereof in
the bill at the time of the issue.
This appears to protect a person to whom a bill of lading has been
negotiated for value and who took it in good faith, relying upon
representations contained in it. A word of caution, however, is
necessary. The provision is recent and has not been construed by the
highest courts in a case involving a shipment by sea. The disposition of
the courts has been to construe such legislation strictly. The act was
intended to reverse the rule laid down in a line of decisions
consistently adhered to by the Supreme Court down to the time of its
passage. There can be no little doubt that any one seeking to maintain
an action under § 22 of the act would have to bring himself strictly
within the description of persons embraced in items (a) or (b) contained
in the section.
=12. Duration of Carrier's Liability.=--The carrier's liability begins
when he receives the goods for immediate transportation. He is not
liable as a carrier if he receives the goods, but is ordered not to ship
them pending further instructions from the consignor. In such case he
remains a mere bailee, or perhaps a warehouseman, until the voyage
actually begins. The carrier's liability ends when he gives notice of
the arrival of the goods and has afforded the consignee a reasonable
opportunity to remove them. He may go farther and stipulate in the bill
of lading to terminate his responsibility as carrier immediately upon
the putting of the goods ashore.
=13. Exceptions in Bills of Lading.=--In addition to perils of the sea,
deviation and restraint of princes, which have already been mentioned,
bills of lading frequently contain language designed to protect the
carrier from liability for such things as damage due to breakage,
leakage, heat, etc. Clauses of this kind will avail the carrier as a
defense against suits for damages due to these causes provided the
carrier is free from negligence. Inasmuch as these exceptions are in the
nature of exemptions from a liability which is imposed by the policy of
the law, the tendency of the courts is to interpret them with strictness
against the carrier.
A provision in a bill of lading exempting the carrier from loss by theft
will not relieve him from liability on account of a theft committed by a
person in his employ, such as an officer of the vessel or a member of
the crew.
=14. Valuation.=--There is some divergence in the decisions of the
courts involving the valuation of the goods which is frequently stated
in the bill of lading. If the language of the bill indicates that the
amount stated is a limit or that the value is limited to the invoice
price, the shipper may recover his actual loss up to but not exceeding
that amount, subject to the invariable rule that a man may not contract
for relief from the consequences of his own negligence. The right of
recovery on the valuation clause depends upon whether the owner of the
goods has been subjected to loss. Thus if after the accident or injury
the goods continue to be worth the amount of the valuation there is no
loss and consequently there can be no recovery. The valuation clause
cannot be used for the purpose of exempting the carrier from liability
for all goods above a certain value. As is succinctly stated in the
syllabus of Calderon _v._ Atlas Steamship Co., 170 U. S. 272, 42 L. ed.
1033:
A stipulation in a bill of lading, that the carrier shall not be liable
for goods of any description which are above the value of $100 per
package unless special agreement is made therefor, does not mean that
the liability is limited to $100 per package for such goods, but that
the carrier shall not be liable for them to any amount, and is
therefore void, under the Harter Act, as an attempt of the carrier to
exonerate itself from all responsibility for such goods.
=15. Notice of Claim.=--It is very important for shippers to observe the
provisions usually contained in bills of lading to the effect that the
carrier will not be liable unless notice of loss be given within a
certain limited time as such clauses are legal and enforceable, and if
not complied with, the shipper will lose his right of action.
=16. Nature and Effect of Charter Party.=--This may be formal or
informal, written or verbal, as the parties choose, but careful business
men will prefer to have it executed with the same care and detail as is
usually given to contracts of so important a nature. The operations
under a charter always involve large responsibilities and liabilities
upon some one, primarily upon the ship but ultimately upon the parties
to the agreement. The adjustment of these by appropriate language
necessitates a carefully drawn document and while many printed forms are
in general use in various ports they should only be employed when both
parties thoroughly understand the import of their provisions. The effect
of the agreement may be to create a contract of carriage on the part of
the owner or to completely divest him of any control over his ship.
Where he merely rents or lets the carrying capacity, in whole or part,
but retains possession, command and navigation through his own master
and crew, he is the carrier and the charter is a contract of
affreightment. Where he transfers the temporary ownership by
relinquishing these things to the charterer, so that the latter hires
the officers and crew and operates the ship, he is not in the position
of a carrier and is freed from obligations on her account, though the
ship herself remains responsible.
Charters are of various kinds. A charter party which turns over the full
control and operation of the ship to the charterer is called a demise of
the ship. This may be for a fixed term, or for a particular voyage. In
commercial practice, however, charters for a fixed term, that is to say
time charters, seldom amount to a demise of the ship, but are usually
mere contracts of affreightment. A charter party for a particular voyage
is called a voyage charter. In usage such a charter may amount to a
demise or may not, depending on whether or not the full control and
operation of the ship is surrendered to the charterer. A charter which
amounts to a demise is sometimes termed a bare boat charter. Under a
charter which amounts to a demise, the owner will require payment of the
charter money or freight in such installments as are agreed, the
maintenance of his ship in good, seaworthy condition, protection against
maritime liens and the prompt payment of all her expenses, and her
return to him in like condition as when taken at the termination of the
contract. The charterer will require undisturbed possession of the ship
so long as he is not in default and agrees, that in event of default,
the owner may cancel and resume possession. Provision should also be
made for insurance and stipulated value in event of damage or total loss.
=17. Subcharters.=--In the absence of any prohibition in the original
charter, a charterer may execute a subcharter or may assign the original
charter.
=18. Provisions in Charter Parties.=--The legal construction of a
charter party is governed by the rules of the law of contract. Material
representations of fact contained in the instrument as inducements to
the contract must be true or the contract will not be binding on the
opposite party. Such representations are statements relating to the
size, capacity, speed, condition and location of the ship.
(a) _Safe Port._--Among other provisions of the contract, especially in
time charters, is usually one to the effect that the vessel is to be
employed only between safe ports. A safe port is one in which the
physical conditions do not ordinarily expose a vessel to danger. Thus a
port entirely exposed to the weather has been held unsafe, as have ports
blocked by dangerous bars. A port in which the vessel would be liable to
forfeiture in time of war because of her nationality has been held
unsafe.
(b) _Insurance._--Where a time charter provides that the owner shall pay
for the insurance the reference is to insurance for the benefit of the
owner and not that of the charterer.
(c) _Redelivery._--While a time charter is, as the name implies, a
contract for the definite period of time expressed in the charter, it is
obvious that the exigencies of navigation frequently render it
impossible to redeliver the vessel on the precise date when the period
expires. It is customary, therefore, to provide that the charter hire
shall continue at the same rate until the time of redelivery unless the
vessel be lost. It is the duty of the charterer to redeliver the vessel
as nearly as possible to the expiration date of the charter, but if the
vessel is delayed through no fault of his, he cannot be held in damages
for breach of the charter, even though he may not be able to make
redelivery for months beyond the expiration date. So long as the delay
be practically unavoidable, he is liable merely for the stipulated
charter hire until redelivery, and not in damages for breach of the
charter (Anderson _v._ Munson, 104 Fed. 913).
The word "about" as a qualification of the charter period is sometimes
inserted in time charters, as a further protection to the charterer, but
it does not diminish his obligation to surrender the vessel as nearly as
possible to the expiration date.
(d) _Cancellation and Withdrawal._--Charters usually contain a clause
which provides that, if the vessel fails to arrive at the loading port
by a certain date, in condition to be laden--i.e., with cargo space
available--the charterers may cancel the obligation. The clause does not
entitle the vessel to loaf toward the loading port so as just to arrive
by the cancellation date. If she does not proceed with reasonable
promptness, the charterer will be entitled to damages, even though she
arrive by the cancellation date.
Correlative to the charterer's right of cancellation, it is usual for
charter parties to contain a provision to the effect that charter hire
is to be paid in advance and that in default of such payment the owner
shall be entitled to withdraw the vessel from the charterer.
(e) _The Breakdown Clause._--Time charters frequently provide that in
the event of loss of time arising from the breakdown of machinery, lack
of men or supplies for more than twenty-four hours, the payment of
charter hire shall be suspended for the period from which she is
inoperative, but if the vessel is driven into port by circumstances of
weather or accident to cargo, the loss of time due to these causes shall
fall upon the charterer. Such provisions are enforcible according to
their language and intent. If the breakdown endures beyond the period of
twenty-four hours the charter hire ceases not only for the excess, but
for the twenty-four hours also.
=19. Lien for Freight and Charter Hire.=--It is fundamental that the
goods carried are liable for the carrying charges, but the questions
arise: In whose favor does the liability exist, and during what period
does it exist? The lien for freight exists in favor of the person with
whom the shipper contracts to carry the goods. Where the shipowner is
operating the vessel on his own account as a carrier, the lien for
freight exists in his favor. Where the vessel is chartered the contract
of carriage is between the shipper and the charterer, and the lien for
freight exists in favor of the charterer. The owner of a chartered ship
has no lien for freight (unless conferred by the cesser clause,
mentioned below), but he may have a lien on the goods to the extent of
the unpaid freight for the purpose of securing his charter hire. This
lien does not exist in favor of an owner who has demised or let the ship
to the charterer, unless there is an express stipulation to that effect.
The so-called "cesser clause" is to the effect that "owner to have lien
on cargo for freight, dead-freight, and demurrage, charterer's liability
to cease when cargo shipped." The purpose of this clause is to bring the
charterer's liability to an end at the loading port. In return for his
exemption from liability to suit at the port of destination, he turns
over to the shipowner his lien on the cargo for freight, dead-freight
and demurrage.
Possession of the goods is, generally speaking, essential to the lien
for freight or charter hire. It does not attach until the goods have
been delivered for transportation. If, by contract, expressed in the
bill of lading or otherwise, the freight is not payable until after the
goods have been delivered, there is no lien, and the same is true if the
freight is payable at a time and place other than those specified for
the delivery of cargo. Ordinarily the lien is discharged when possession
of the goods is parted with; or by express waiver; or by implied waiver,
such as a direction to pay the freight to another person.
It is usual to insert in time charters a clause providing for a lien for
charter hire. Such provisions are valid, but they are not effective
against the cargo unless the terms of the charter have been brought home
to the shipper by a reference to the charter in the bill of lading,
which is commonly done. To incorporate the charter in the bill of lading
the reference to the charter in the bill must be explicit.
=20. Liability for Loss or Damage.=--In the case of goods, there is a
primary liability on the ship.
The liability of a vessel _in rem_ for want of due diligence in the
care and custody of the goods received on board for transportation is
the same whether the owners of the ship remain in possession as
carriers or whether the terms of the charter party are such as to
constitute a demise of the vessel for the voyage, so as to render the
charterers the owners _pro hac vice_ and alone personally responsible
for the transportation. The T. A. Goddard, 12 Fed. 174.
As between the shipowner and the charterer, this will be borne as the
charter party provides. In the case of loss or damage to the ship, the
contract again controls if its provisions are explicit. If not, the
ordinary rules of bailment of personal property control. If the charter
amounts to a demise of the ship, the charterer is liable, for he engages
to return the ship without injury by reason of his own negligence; if
not a demise, the shipowner bears the loss. For losses caused by perils
of the seas or by ordinary wear and tear, without negligence on his
part, the charterer is not liable in the absence of an express
stipulation.
In the case of the Barnstable, 181 U. S. 464, the vessel was chartered,
the charterer employing the officers and crew to navigate her, as well
as providing the ship's stores, supplies and fuel, and undertaking to
pay all pilotage, port charges and other expenses. The owner was to keep
the vessel insured and in repair. She came into collision with the
schooner _Fortuna_. The owners of the _Fortuna_ libeled the _Barnstable_
and the owners of the latter vessel called upon the charterers to defend
the suit. It was conceded that the collision and the consequent damage
were due to the negligent operation of the _Barnstable_ by the officers
and crew employed by the charterers to operate her. The court held that
the owners of the damaged schooner were entitled to look to the
offending vessel for their damages. As between the owner and the
charterer it was held that the charter amounted to a demise and the
charterer was the temporary owner. He was therefore liable to the real
owner, since he was bound to return the vessel. In the report of the
argument of this case many authorities are cited showing the
circumstances under which a charter party becomes a demise of the vessel.
In a contract of affreightment or charter not amounting to a demise--and
this embraces time charters--the duty of navigation rests upon the
shipowner. He is responsible for any damage due to negligence in
navigation, even though the negligent individual had been employed by
the charterer. In charters of this class the shipowner is also
responsible for loading and discharging cargo. Stevedores are ordinarily
regarded as being in the employ of the ship.
=21. Demurrage and Laydays.=--Time is usually of the essence of maritime
and commercial transactions. Both parties must be punctual in the
performance of their obligations. The shipowner must have the vessel at
the appointed place and time for delivery to the charterer or to receive
the cargo, as the agreement requires. The charterer must be on hand to
receive her or to deliver the cargo for loading. The ship must pursue
the voyage without deviation or delay. The consignee must be ready to
receive his goods on their arrival. Failure to observe these
requirements creates a liability for the damages ensuing or may dissolve
the charter. If the contract is express in regard to these stipulations,
no excuses will be useful unless they can be found in the agreement
itself. It is usual to provide for these obligations under the name of
demurrage. Of course, where the charter is for a definite period of
time, they are unimportant, but otherwise, if it is for one or more
voyages. The charterer has a number of days at his disposal for loading
and discharging the cargo. These are termed laydays. If not specially
provided, or fixed by the usage of the port or trade, a reasonable
number will be implied. For the excess, the ship is entitled to
demurrage to cover her loss of time and expenses, either at the rate
named in the charter or of such amount as may be proved.
Until the laydays have expired there is no breach of the contract to
load, but where the charterer refuses to accept the vessel or provide a
cargo, the owner need not keep her in readiness for delivery during all
the laydays.
What constitutes readiness, or under what circumstances a ship is an
"arrived ship," depends upon the terms of the bargain. Thus if the
charterer requires her to reach her berth a notice given when she is in
the stream will be insufficient. If she is to report for loading cargo
she must have her loading apparatus ready and her cargo space available.
The notice must actually reach the charterer unless he prevents it by
absenting himself or his representative from the place where it is to be
given. Notice should not be given on Sunday or a holiday, unless the
charter expressly permits it.
In accordance with the general principle of the law of contract, laydays
do not run if delay in loading or discharge is caused by the master or
owner.
It is the duty of the charterer to have his cargo ready and he is liable
for demurrage on account of the delay in furnishing cargo.
The charter party usually excepts Sundays and holidays from the laydays
allowed for loading, but, after the expiration of the loading period
(i.e., the laydays and the Sundays and holidays occurring among them),
demurrage begins to be payable to the ship, and she is entitled to
demurrage for Sundays and holidays as well as for secular days. This is
because the work of loading in port does not usually proceed on Sunday,
but a ship at sea continues on her voyage every day, so that every day's
delay in departure causes an equal delay in arrival.
Charters often provide for "despatch money," which is a premium or
allowance to the charterer for speed in loading. This is computed on
each running day saved; that is, it is to be credited to the charterer
for every day, including Sundays and holidays, occurring after the day
on which the master is placed in a position to clear the vessel, up to
and including the last layday, i.e., the end of the loading period.
Despatch is not allowed unless bargained for in the charter.
=22. Breach of Charter.=--If the shipowner refuses to perform the
charter, the charterer has a personal action for damages against him but
no maritime lien against the ship. There is no such lien for breach of a
purely executory contract, that is to say a contract no part of which
has been performed. So, if the ship is ready but the charterer refuses
to perform, the remedy is personal only and not against the goods. Each
must endeavor to mitigate his loss, the ship by seeking other
employment, the charterer by looking for another ship. But after
performance of the contract has once commenced, there are reciprocal
liens on ship and cargo for its performance. The charterers have a lien
on the vessel for all damages caused by a breach of the charter, the
carrying out of which has been begun. For example, if the voyage is
delayed after its commencement through the negligence of the owner, or
if the master, while agent of the owner, violates the terms of the
charter party, a lien arises in favor of the charterer.
In regard to the various obligations of the agreement, breaches by
either party will either dissolve their relations or give rise to
actions for damages. If nonperformance goes to the whole root and
consideration of the contract, the other party may treat it as abrogated
and be relieved from further obligation on his part in addition to his
own claim for damages; if the nonperformance is not so vital, but may be
amply compensated by damages, he will not be so relieved but must resort
to his action.
The arbitration clause contained in a time charter is not enforcible in
the United States.
=23. Dissolution of Charter.=--Like all other contracts, the charter
party becomes dissolved by performance or by the acts of the parties
amounting to a cancellation by agreement or waiver of performance. It
may, however, be dissolved against the will of the parties and by causes
extrinsic to them. Thus, although legal when made, if it becomes illegal
before performance, it is as wholly void as if it were illegal at the
outset. A state of war, for example, making all commercial intercourse
with the enemy illegal, would annul all obligations under a prior
charter for a voyage to an enemy port. So would legislation forbidding
the importation of the cargo in question. A voyage charter may be
dissolved by an accident to the vessel which prevents her making the
voyage at the time contemplated. For example, in Jackson v. Union Marine
Insurance Co., L. R. 10. C. P. 125, the ship was to proceed with all
possible despatch (dangers and accidents of navigation excepted) from
Liverpool to Newport, and there to load and carry to San Francisco a
cargo of iron rails. She left Liverpool January 2, and on the following
day ran aground, sustaining considerable damage. It would necessarily
have been many months before she could be got off and put in repair to
enable her to continue the voyage. The court held that in the commercial
sense the voyage contemplated by the charter party had been brought to
an end, and, under those circumstances, the contract was held to have
determined. The voyage, if resumed, would have been a different voyage,
"as different," in Baron Bramwell's words, "as though it had been
described and intended to be a spring voyage, while the other, after the
repair, would be an autumn voyage." The season within which the
adventure was to be carried out was of importance to both parties, and
it was thus easy to imply a condition that, if the voyage became
impossible of completion within that season, the contract would be at an
end. The exception as to dangers of the sea and accidents of navigation
showed that the parties contemplated providing for some delay from these
causes, but it was held that they were evidently not contemplating a
delay so great that the spring voyage would become altogether impossible.
The particular adventure being a voyage to be carried out within
reasonable limits of time furnished a definite standard by which it
would be determined whether the delay which actually occurred was or
was not within the exception clause. There was, therefore, no
inconsistency between the implied condition and the express provisions
of the contract.
Termination of a charter by frustration of adventure is not applicable
to time charters. Thus the taking of the ship for the use of the
government does not dissolve a time charter. This was held by the House
of Lords, upon a very full consideration in the recent case of Tamplin
Steamship Co. _v._ Anglo-Mexican Products Co., Ltd., 2 A. C. 397. There
a vessel was chartered for five years for a fixed sum per month for the
carriage of oil as the charterers or their agents should direct. The
charter party contained an exception of arrests and restraint of
princes, and the charterers had the liberty of subletting the steamer on
admiralty or other service. After the outbreak of the war, when the
charter party had nearly three years to run, the steamer was
requisitioned for an indefinite period by the admiralty, which made
extensive alterations and used her as a transport. The owners contended
that the charter party had been determined by the requisition. The
charterers, who were willing to continue to pay the charter hire (no
doubt in order to entitle themselves as temporary owners to the
compensation paid by the government) contended that the charter party
had not been annulled and this contention was sustained by the House,
which held that the interruption was not of such a character that the
court ought to imply a condition that the parties should be excused from
further performance of the contract and that the requisition did not
determine or even suspend the charter. Earl Loreburn said:
The violent interruption of a contract may always damage one or both
the contracting parties. Any interruption does so. Loss may arise to
some one whether it be decided that these people are or that they are
not still bound by the charter party. But the test for answering the
questions is not the loss that either may sustain. It is this: Ought we
to imply a condition in the contract that an interruption such as this
was to excuse the parties from further performance of it? I think not.
I think they took their chances of lesser interruptions and the
condition I should imply goes no further than that they should be
excused if substantially the whole contract became impossible of
performance or in other words impracticable by some cause for which
neither was responsible. Accordingly I am of opinion that this charter
party did not come to an end when the steamer was requisitioned and
that the requisition did not suspend it or affect the rights of the
owners or charterers under it and that the appeal fails.[16]
Where the charter provides for the return of the vessel at the
expiration of the term in as good condition as when taken, fair wear and
tear from reasonable and proper use only excepted, and requires the
hirer to make all repairs and assume liability for all loss and damage,
an absolute obligation to return her is created and her total loss
without any fault on his part will not exempt him from liability; he
must return the ship or pay her value, and, if the charter party
contains an agreement as to what that value is, that amount will be
decreed by the court. In Sun Printing & C. Association _v._ Moore, 183
U. S. 642, the New York _Sun_ newspaper chartered a yacht from Moore for
newsgathering purposes in Cuban waters during the Spanish war. The
charter party provided that the hirer was to keep "said yacht in repair
and to pay all its running expenses and to surrender said yacht with its
gear, furniture and tackle at the expiration of this contract to the
owner or his agent ... in as good condition as at the start, fair wear
and tear from reasonable and proper use only excepted." It was further
provided that "for the purpose of this charter the value of the yacht
shall be considered and taken at the sum of $75,000." The charter party
was accompanied by a paper in the nature of a surety bond given by the
_Sun_ to secure the owner against any loss or damage to the vessel in an
amount _not exceeding_ $75,000. The yacht was wrecked and totally lost.
Moore sued for $75,000 as representing the agreed value of the yacht.
The _Sun_ contended that the figure represented a penalty, enforceable
only to the extent of actual damage. The court sustained a recovery of
the full amount without deducting the charter hire. Justice White said:
It is elementary that, generally speaking, the hirer in a simple
contract of bailment is not responsible for the failure to return the
thing hired, when it has been lost or destroyed without his fault. Such
is the universal principle.... But it is equally true that where by a
contract of bailment the hirer has, either expressly or by fair
implication, assumed the absolute obligation in return, even although
the thing hired has been lost or destroyed without his fault, the
contract embracing such liability is controlling and must be enforced
according to its terms....
As the stipulation for value referred to was binding upon the parties,
the trial court rightly refused to consider evidence tending to show
that the admitted value was excessive and the circuit court of appeals
properly gave effect to the expressed intention of the parties.
REFERENCES FOR READING
_Charter-Parties_, XVI American Law Review, 6330.
_Charter-Parties and Bills of Lading_, T. E. Scrutton. London, 1899;
Clowes and Cons, Ltd.
_Shipping and Admiralty_, Parsons, 274-337.
_Shipping and Admiralty_, Desty, §§ 217-286; 196-285.
Crossman _v._ Burrill, 179 U. S. 100.
Moore _v._ Sun Ass'n, 183 U. S. 642.
Boskenna Bay, 36 Fed. 697.
Majestic, 56 Fed. 244.
Centurion, 57 Fed. 412.
_Shipping and Admiralty_, Parsons, Vol. I, Chapter VIII.
_Admiralty_, Hughes, Chapters VII, VIII.
Francis, 21 Fed. 715.
Sprott, 70 Fed. 327.
Rosenthal, 57 Fed. 254.
Ronalds, 109 Fed. 905.
Burrill, 65 Fed. 104.
Dene, 103 Fed. 983.
Ely, 110 Fed. 563.
Dixie, 46 Fed. 403.
Mencke _v._ Sugar, 187 U. S. 248.
_Charter-Parties and Ocean Bills of Lading_, Poor.
[16] It may be inferred, however, that, if it had appeared that the
requisition necessarily rendered the performance of the entire contract
impossible, the charter would have been held to be dissolved. In this
case, it was the owner, who saw a chance to make more money, who wanted
the charter annulled; not the charterer whose adventure was being
frustrated in a manner advantageous to him. It is a little difficult to
suppose that the court would have required the charterers to go on
paying charter hire, had they been unwilling to do so, for a vessel of
which the government had deprived them of the use. Still, that
conclusion is deducible from the language of the several lords who wrote
opinions in the case.
CHAPTER VIII
LIABILITIES AND LIMITATIONS
=1. Liabilities of Ship.=--As elsewhere observed, the ship resembles a
person in maritime law and has a corresponding liability. In general,
she is responsible for every benefit received and every wrong done as
well as for every breach of governmental regulations. Particular
instances may furnish exceptions to this general rule, but they will be
only occasional exceptions. The ship should be considered as a juristic
person and her liabilities like those of an ordinary corporation, quite
apart from those of the natural persons in charge of her operations or
interested in her ownership. The liability of a vessel arising out of
contract is discussed elsewhere. The principle governing her liability
for torts is laid down in the brig Malek Adhel, 2 How. (U. S.) 210:
The ship is also by the general maritime law held responsible for the
torts and misconduct of the master and crew thereof, whether arising
from negligence or a willful disregard of duty; as, for example, in case
of collision and other wrongs done upon the high seas or elsewhere
within the admiralty and maritime jurisdiction, upon the general policy
of that law, which looks to the instrument itself, used as the means of
the mischief, as the best and surest pledge for the compensation and
indemnity to the injured party.
The liability ordinarily extends to the entire ship and all the
appurtenances.[17] It may include the freight money and collision
damage; it does not include the insurance; and it may be diminished by
statutes like the Harter Act or by special agreements in the contract
of carriage or similar stipulations.
=2. Liabilities of Owner.=--While it has been said that the liability of
the ship and of the owner were convertible terms, the statement is
hardly accurate in many cases. The owner may have so chartered the ship
as to release him from personal responsibility; he may be wrongfully
deprived of her possession; his liability may be limited by law or
special agreement to her value. In other words, the ship is frequently
liable and the owner is not; and the owner can usually confine his
liability to the value of the ship and otherwise go free from her
obligations.
=3. Liabilities of Charterer.=--Where a vessel is so hired that the
charterer has the exclusive possession, control and management,
appointing the master and hiring the crew, there is said to be a demise
of the ship and a temporary ownership in the charterer. He then becomes
responsible for her obligations as if he were the real owner and has
similar rights of limitation. The law provides that where a charterer
mans, victuals and navigates the ship at his own expense, he shall be
considered as owner within the provisions of the statutes limiting
liability, and that the ship shall be liable, when so chartered, as if
navigated by the owner (Rev. St. § 4286).
=4. Liabilities of Mortgagee.=--These depend upon his possession of the
ship. Where he takes possession and operates the ship for his own
benefit, he assumes all the responsibilities of ownership but without
the right to limit his liability to the value of his interest in the
ship. Thus he may become personally liable for wages, supplies and
repairs as well as for damages done by negligence. He may, by special
arrangements, confine contract liabilities to the ship and, being
lawfully in possession, he may create maritime liens upon her. A
mortgagee out of possession is not considered as the owner even when he
holds the record title under a bill of sale absolute on its face. He may
still show that his title was by way of security only and so exempt
himself from personal liability for repairs done or supplies furnished
for the contracts or negligence of the mortgagor or other person having
real ownership of the boat.
=5. Liabilities of Underwriters.=--The insurers are ordinarily strangers
to the ship as far as concerns any authority to instruct the master or
incur obligations on her account. Only in case of an abandonment of the
vessel to them, when the loss is total or constructively total, and when
they have accepted such an abandonment, does such authority arise. An
abandonment when properly made, or accepted, vests the property in the
underwriter and the master then becomes his agent. The underwriter is
then the real owner and has all an owner's liabilities and limitations.
There is, however, a very large intermediate class of disasters where
the underwriters decline an abandonment and yet take possession of the
ship and cargo for the purpose of rescue and repair. Large expenses are
thus created for which the damaged ship and cargo may be adequate
security. The underwriters are personally liable, in the absence of
special contract, for the contracts of their agents, although the nature
of the business is such that it is often a practical difficulty to
ascertain who were the insurers actually making the engagements and what
was the real authority of those assuming to represent them. These
questions are usually not raised during the exigencies of salvage
operations but may become important when the work is unsuccessful and
the expenses are unpaid.
=6. Theories of Limitation.=--The general maritime law has always been
that an owner was not personally liable for the obligations of his ship
as distinguished from his own agreements or delinquencies. It regards
the ship as a distinct individuality similar to a corporation. The
common law, on the contrary, considers the ship like any other kind of
personal property and holds the owner correspondingly liable because his
agents were in charge and he is liable for whatsoever they do within the
scope of their agency. The maritime law retains an earlier notion of the
common law, that it is against all reason to put blame or fault upon a
man for the negligence of others and declines to hold him personally for
what he cannot personally control. It also recognizes the fact that men
of means will not invest in ships unless they can be protected against
the unlimited liability of the common law. It holds that such a
liability is inherently unjust when applied to the shipowner and it also
accepts the situation in which the capitalist declines to invest in
shipping unless that injustice is averted. Hence came the rule that the
owner is not liable on account of the ship beyond the value of his
interest therein and her freight pending and the corollary that he might
absolve himself from all liability by abandoning the ship to her
creditors. The theory is (at least as applied to torts) that:
If you surrender the offending vessel you are free, just as it was said
by a judge in the time of Edward III, "If my dog kills your sheep and I
freshly after the fact tender you the dog you are without recourse to
me."[18]
This rule is in abrupt conflict with the theories of the common law and,
while it has been expressed in statutory form in most maritime
countries, the courts have been so far influenced by common law
doctrines in its application that it does not prevail in its original
integrity either in this country or in England. Congress has endeavored
to restore it in the United States but the courts, so far, have declined
to follow the plain language of the statute.
=7. Contract Limitations.=--To a considerable extent there may be an
effective limitation of liability by special contract between the
parties. The courts hold, generally, that limitations of liability in a
contract must be reasonable if they are to be valid and they regard
clauses which exempt the shipowner from liability for his own or his
servants' negligence as unreasonable and also as contrary to public
policy. At the same time, when the ship is not professing to be a common
carrier and the contract is plain and on adequate compensation, such
clauses may be, and are, enforced. Their efficiency will depend largely
upon the contract itself and there is no hard and fast rule which
prevents the private carrier from obtaining such limitations as he
requires if the other party will agree thereto.
An illustration is found in the case of the Royal Sceptre, 187 Fed. 224,
where the charter provided:
The ship is to be in no way liable for any consequences of ... perils
of the sea, ... collisions, stranding, or other accidents or errors of
navigation even when occasioned by the negligence, default, or error in
judgment of the pilot, master, mariners, or other servants of the
shipowners.
Judge Hough said:
The quoted charter provision delimits the obligations of the ship, in
so far as it goes, when reasonably interpreted. If therefore the
proximate cause of this loss be a peril of the sea (or river), a
stranding, an error of the pilot or negligence of the master, it may be
assumed that libellant cannot recover; for, without any written
limitation of liability, all that the bailor-libellant could require or
expect from the bailee-claimant was the use of ordinary care and skill
and that expectation has been (in part) bargained away for a
consideration presumably expressed in the rate of charter hire.
=8. The Federal Statutes.=--The original law was enacted in 1851 (Rev.
St. §§ 4284-4286; Comp. St. 1916, 8020-8027); that provided an absolute
protection against loss by fire unless caused by the design or neglect
of the owner, and in case of practically all losses which might occur
without the "privity or knowledge" of the owner, his liability was
limited to the value of his interest in the ship and freight pending;
provision was made for a general average of creditors and transfer to a
trustee; in 1872 the Supreme Court promulgated rules of practice under
which its benefits might be more efficiently applied by the admiralty
courts. It was held that these statutes were enacted to restore the old
doctrine of the maritime law, to encourage shipbuilding and the
employment of ships in commerce, and for the public benefit. Hence they
must be liberally construed in favor of shipowners. In a series of great
decisions, commencing about 1870, the Supreme Court held the law
constitutional; that foreign shipowners were entitled to its benefits;
that the valuation of the owner's interest might be made as of the
termination of the voyage or immediately after the disaster so that if
the loss is total the liability is practically nil; that insurance was
no part of the owner's interest in the ship or freight and need not be
surrendered; and that the protection of the act extended to underwriters
to whom the ship had been abandoned.
The original law had been passed with much difficulty and its language,
as the result of compromise and concession, was subjected to much
criticism as uncertain and ambiguous. The shipping interests of the
country continued to decline and among the reasons assigned were the
responsibility and liabilities left open or undefined by the law. About
1880, in connection with a vigorous attempt to revive the merchant
marine, the entire subject received full consideration by Congress. The
Act of June 26, 1884, was subsequently passed, and, expressly repealing
all laws in conflict therewith, declared in a few words that "the
individual liability of a shipowner shall be limited to the proportion
of any and all debts and liabilities that his individual share of the
vessel bears to the whole, and the aggregate liabilities of all the
owners of a vessel on account of the same shall not extend the value of
such vessel and freight pending." An amendment seeking to insert the
condition that such debts must have been incurred without the owner's
privity or knowledge was deliberately rejected. The courts, however,
have declined to enforce the law according to its terms and held that
Congress really intended to insert the condition as to privity or
knowledge in spite of the omission of the words and the rejection of the
amendment which sought to insert them. The result is that the owner is
still liable without limit for all obligations which arise out of
matters of contract, according to the rules of the common law and in
many instances of negligence on the part of his employees the same
result seems to follow. His liability can not be limited where "privity
or knowledge" is imputable to him and no accurate definition of these
terms is yet available.
Under the present law, the voyage is the unit in respect to which
limitation may be granted. Probably the shipowner may claim the benefit
of the law at any time before he pays a final judgment in favor of the
damage creditors, but he must account for the value of the ship as it
was at the termination of the voyage on which the liability was created.
The courts will not permit him to continuously operate the ship at the
expense of her creditors and then finally abandon her to them loaded
with the liens of many voyages. The rule is only a practical one and in
special cases may work injustice to shipowners, as where ships make a
continuous number of short trips between contiguous points. Part-owners
are only liable according to the proportion of their shares, and the
personal fault or privity of one does not necessarily implicate the
others. It is not necessary that they should join in the same
proceeding. The exemption is several and may be claimed by each without
reference to the others.
=9. "Privity or Knowledge."=--Limitation of liability can not be had
against any loss or obligation unless incurred without the privity or
knowledge of the shipowner. These words, by judicial construction, still
remain as a condition or qualification of the law and it is unfortunate
that no plain definition of their meaning has been yet supplied. The
words have been discussed in many cases and there are many decisions in
particular instances granting or denying the benefit of the law, but the
expression is still undefined and perhaps is incapable of accurate legal
definition. Some judges have held that "privity or knowledge" means the
shipowner's own willful or negligent acts as distinguished from those of
his agents or employees. This gives the broad and liberal construction
of the law which the Supreme Court directed in its earlier decisions on
the subject. On the other hand, judges of equal learning have been
inclined to treat the matter by the standards of the common law and held
that the acts or faults of agents or servants are those of the principal
and that he must be as personally liable as if he had done them himself.
These would limit the protection of the law to the acts of the master of
the ship when beyond control of the owner and give it a close
construction against the shipowner. This has been the tendency of the
later decisions of the Courts of Appeals and the Supreme Court has so
far acquiesced in them. There has also been a development of a doctrine
to the effect that there can be no limitation against the enforcement of
the shipowner's personal contracts, and engagements made by various
employees and managing owners have been held to be within this class.
This rule depends on the theory of privity or knowledge, as, of course,
there can be no such thing as a contract relation without privity or
knowledge of its subject-matter. Thus in the recent case of Luckenbach
_v._ McCahan Sugar Ref. Co., 248 U. S. 139, decided December 9, 1918:
But the liability of the owners sought to be enforced here is one
resting upon their personal contract; and to such liabilities the
limitation acts do not apply.
Similarly in another recent case, Pendleton _v._ Benner Line, 246 U. S.
353:
The contract was between human beings, and the petitioner, by his own
act, knowingly made himself a party to an express undertaking for the
seaworthiness of the ship. That the statute does not limit liability
for the personal acts of the owners, done with knowledge, is
established by Richardson _v._ Harmon, 222 U. S. 96. It was said in
that case, p. 106, that § 18 leaves the owner "liable for his own
fault, neglect, and contracts."
* * * * *
It is said that the owners did their best to make the vessel seaworthy,
and that if it was not so the failure was wholly without the privity or
knowledge of the petitioner. But that is not the material question in
the case of a warranty. Unless the petitioner can be discharged from
his contract altogether he must answer for the breach, whether he was
to blame for it or not.
In the case of corporate shipowners it is said that the privity or
knowledge must be that of the managing officers, but there is no
definition of who the managing officers are and the term is not capable
of accurate definition. The law of limitation of liability of shipowners
in the United States is not now plain or simple nor is it in harmony
with the general maritime law or that of other commercial countries.
Where the owner can prove that the loss occurred without his privity or
knowledge he will obtain protection, but just what facts or ignorance of
facts he must prove to reach this result can not be stated at the
present time.
=10. Harter Act.=--This law was enacted by Congress in 1893, and
corresponds to a similar English statute of about the same date. It may
be found in 7 Comp. St., 1916, §§ 8029-8035. The text of the act follows:
Chapter 105. An act relating to navigation of vessels, bills of lading,
and to certain obligations, duties, and rights in connection with the
carriage of property.
Be it enacted by the senate and house of representatives of the United
States of America in congress assembled, that it shall not be lawful
for the manager, agent, master or owner of any vessel transporting
merchandise or property from or between ports of the United States and
foreign ports to insert in any bill of lading or shipping document any
clause, covenant or agreement whereby it, he, or they shall be relieved
from liability for loss or damage arising from negligence, fault or
failure in proper loading, stowage, custody, care, or proper delivery
of any and all lawful merchandise or property committed to its or their
charge. Any and all words and clauses of such import inserted in bills
of lading or shipping receipts shall be null and void and of no effect.
Sec. 2. That it shall not be lawful for any vessel transporting
merchandise or property from or between ports of the United States of
America and foreign ports, her owner, master, agent, or manager, to
insert in any bill of lading or shipping document any covenant or
agreement whereby the obligation of the owner or owners of said vessel
to exercise due diligence, properly equip, man, provision, and outfit
said vessel, and to make said vessel seaworthy and capable of
performing her intended voyage, or whereby the obligations of the
master, officers, agents, or servants, to carefully handle and stow her
cargo and to care for and properly deliver the same, shall in any wise
be lessened, weakened or avoided.
Sec. 3. That if the owner of a vessel transporting merchandise or
property to or from any port in the United States of America shall
exercise due diligence to make the said vessel in all respects
seaworthy and properly manned, equipped and supplied, neither the
vessel, her owners or managers, agents or charterers, shall become or
be held responsible for damages or loss resulting from faults or errors
in navigation or in the management of said vessel, nor shall the
vessel, her owner or owners, charterers, agent, or master be held
liable for losses arising from dangers of the sea or other navigable
waters, acts of God, or public enemies, or the inherent defect, quality
or vice of the thing carried, or from the insufficiency of package, or
seizure under legal process, or for loss resulting from any act or
omission of the shipper or owner of the goods, his agent or
representative, or from saving or attempting to save life or property
at sea, or from any deviation in rendering such service.
Sec. 4. That it shall be the duty of the owner or owners, masters, or
agent of any vessel transporting merchandise or property from or
between ports of the United States and foreign ports, to issue to
shippers of any lawful merchandise a bill of lading or shipping
document, stating, among other things, the marks necessary for
identification, number of packages or quantity, stating whether it be
carrier's or shipper's weight, an apparent order or condition of such
merchandise or property delivered to and received by the owner, master,
or agent of the vessel for transportation, and such document shall be
_prima facie_ evidence of the receipt of the merchandise therein
described.
Sec. 5. That for a violation of any of the provisions of this act the
agent, owner, or master of the vessel guilty of such violation, and who
refuses to issue on demand the bill of lading herein provided for,
shall be liable to a fine not exceeding two thousand dollars. The
amount of the fine and costs of such violation shall be a lien upon the
vessel whose agent, owner, or master is guilty of such violation, and
such vessel may be libeled therefor, in any district court of the
United States within whose jurisdiction the vessel may be found.
One-half of such penalty shall go to the party injured by such
violation and the remainder to the government of the United States.
Sec. 6. That this act shall not be held to modify or repeal sections
forty-two hundred and eighty-one, forty-two hundred and eighty-two, and
forty-two hundred and eighty-three of the Revised Statutes of the
United States, or any other statutes defining the liability of vessels,
their owners or representatives.
Sec. 7. Sections one and four of this act shall not apply to the
transportation of live animals.
Sec. 8. This act shall take effect from and after the first day of
July, eighteen hundred and ninety-three. Approved February 13, 1893.
The general purpose of the act is understood to have been to regulate
the relations between ship and cargo, so as to provide a limitation of
liability, beyond that granted by the earlier statutes as to damages in
general, by providing that if the owner exercised due diligence to make
his ship seaworthy neither he nor his vessel should be liable for losses
resulting from fault or error in the navigation or management of the
vessel. The courts, however, have construed the statute closely against
the shipowner and it is doubtful whether it has not rather increased his
original liabilities instead of limiting them. He is still held to his
warranty of absolute seaworthiness at the beginning of the voyage;
stipulations in the bill of lading are prohibited which tend to relieve
him from liability for loss arising from negligence, fault or failure in
proper loading, stowage, care or proper delivery and he is forbidden to
insert any clauses lessening his common-law obligations as a carrier.
In the Carib Prince, 170 U. S. 655, the damage to cargo was caused by
latent defects in a rivet, from which the head had come off, leaving a
hole through which water entered and injured libellant's merchandise.
The defect was due to too much hammering during the construction of the
hull, causing the rivet to become brittle and weak. By reason of this
defect the vessel was unseaworthy at the time the bill of lading was
issued, although the owner did not know it. The bill of lading exempted
the owner of the vessel from liability on account of "latent defects in
the hull." The court held that the bill of lading was intended to confer
exemption only to latent defects arising subsequent to sailing and
consequently that there was no contractual limitation of liability, and
with reference to the exemption from liability claimed under the Harter
Act, said:
Because the owner may, when he has used due diligence to furnish a
seaworthy ship, contract against the obligation of seaworthiness, it
does not at all follow that when he has made no contract to so exempt
himself he nevertheless is relieved from furnishing a seaworthy ship,
and is subjected only to the duty of using due diligence. To make it
unlawful to insert in a contract a provision exempting from
seaworthiness where due diligence has not been used, cannot by any
sound rule of construction be treated as implying that where due
diligence has been used, and there is no contract exempting the owner,
his obligation to furnish a seaworthy vessel has ceased to exist. The
fallacy of the construction relied upon consists in assuming that
because the statute has forbidden the shipowner from contracting
against the duty to furnish a seaworthy ship unless he has been
diligent, that thereby the statute has declared that without contract
no obligation to furnish seaworthy ship obtains in the event due
diligence has been used.
* * * * *
The exemption of the owners or charterers from loss resulting from
"faults or errors in navigation or in the management of the vessel,"
and for certain other designated causes, in no way implies that because
the owner is thus exempted when he has been duly diligent that thereby
the law has also relieved him from the duty of furnishing a seaworthy
vessel. The immunity from risks of a described character, where due
diligence has been used, cannot be so extended as to cause the statute
to say that the owner when he has been duly diligent is not only
exempted in accordance with the tenor of the statute from the limited
and designated risks which are named therein, but is also relieved as
respects every claim of every other description from the duty of
furnishing a seaworthy ship.
In the Wildcroft, 201 U. S. 378, a cargo of sugar was injured by an
opening of a valve in the ship's side in such a manner that water got
into the cargo. The vessel was in all respects seaworthy at the
beginning of the voyage, and the court held that having discharged the
duty of providing a seaworthy ship the vessel was relieved from
liability arising out of an unseaworthy condition, which devolved after
the beginning of the voyage and without the fault of the owners. It was
emphasized, however, following the case of the Southwark, 191 U. S. 1,
that the burden is upon the owner of a vessel
to show by reasonable and proper tests that the vessel was seaworthy
and in a fit condition to receive and transport the cargo undertaken to
be carried and that if, by failure to adopt such tests and furnish the
required proofs, the question of the ship's seaworthiness was left in
doubt, that doubt must be resolved in favor of the shipper, because the
vessel owner had not sustained the burden cast upon him by the law to
establish that he had used due diligence to furnish a seaworthy vessel.
As it emerges from the interpretation of the courts, the effect of the
Harter Act seems to amount to this:
The act says to the shipowner:
1. You may make a valid bargain by which you will be exempted from
liability, if you use due diligence to make the ship seaworthy at the
beginning of the voyage, and some defect develops which eluded your
diligence. Unless you make such a bargain, your obligation to provide a
ship which is seaworthy at the commencement of the voyage is absolute,
and, in no event, can you bargain to relieve yourself from using due
diligence.
2. You cannot bargain away your duty and obligation to use due diligence
to see that your vessel is maintained in seaworthy condition during the
voyage, but you may, if you like, bargain that if you use due diligence
and your ship nevertheless become unseaworthy, you shall be relieved
from responsibility for damage to cargo on that account.
3. If you use due diligence to employ a competent master and crew and
their skill in navigation fails or the ship encounters perils of the sea
and accident happens to the cargo you are not responsible for the
damage. Your exemption from responsibility in this case is given by the
statute and you do not need to bargain for it.
4. Your exemption from liability does not extend to damage due to
improper loading and stowage.
=11. Insurance.=--Where the shipowner is entitled to the benefits of the
Limited Liability Law, his liability is terminated by a surrender or
abandonment of the ship and her pending freight. He may retain the
insurance and her creditors can not claim it. He is not obliged to
account for the insurance money which he may have collected for the loss
or damage to his vessel. In this respect the law of the United States is
more liberal to the shipowner than that of many other countries. The
question was decided in the cases of the City of Norwich, 118 U. S. 468,
and the Scotland, in the same volume at page 507. The latter will
illustrate the rule; the _Scotland_ and the _Dyer_ were in collision and
both sunk; the lower court held the _Scotland_ at fault and awarded the
owners of the _Dyer_ upwards of $250,000, as damages. The value of the
_Scotland_ before the collision was about $500,000, and her owners had
collected insurance on her to the amount of $299,867.42. The value of
her wreckage was $4,927.85. The Supreme Court held that her owners'
liability was limited to this last amount and that the owners of the
_Dyer_ could not claim any part of the insurance.
=12. Single Ship Companies.=--This is a form of organization which has
the advantages of the general law of corporations in limiting the
liability of shareholders to the amount of their stock. If such a
corporation has all its capital invested in a single ship, its liability
is, of course, limited to the amount of the investment and if the shares
have been paid in full there can be no further calls upon the
shareholders. When the ship is lost, all liabilities are lost with her
except such as the shareholders may have personally guaranteed or
assumed. The corporation which owns several ships will obviously not
have the same degree of limitation. Hence the popularity among
investors, particularly in England, of the single ship company. As far
as the corporate affairs are concerned the laws of the State in which it
is incorporated must be observed. In the maritime law, its status is
that of an individual shipowner. The privity or knowledge of its
managing officers may preclude it from the protection of the admiralty
law of limited liability; if so, it cannot retain the insurance or any
other part of its capital against its creditors, but, when the capital
is lost or exhausted, the stockholders who have paid in full for their
shares will have no further responsibility.
REFERENCES FOR GENERAL READING
_Admiralty_ (1910), Benedict, Chapter XXXV.
_Carriers_, Wheeler, Chapters I-III.
_Admiralty_, Hughes, Chapters VIII and XVI.
_Collisions at Sea_, Marsden (1904), Chapter VII.
_Limitation of Liability_, Van Santvoord, 1887.
Rebecca-Ware (Fed. Cas. No. 11,629).
Trans. Co. _v._ Wright, 13 Wall. 104.
Benefactor, 103 U. S. 247.
Scotland, 105 U. S. 24.
City of Norwich, 118 U. S. 468.
O'Brien _v._ Miller, 168 U. S. 287.
La Bourgogne, 210 U. S. 95.
Richardson _v._ Harmon, 222 U. S. 96.
Pendleton _v._ Benner Line, 246 U. S. 353.
[17] Liability does not extend to parts of a tow having no motive power
of their own when attached to a tug whose faulty navigation caused a
collision even though the damage resulted from the impact of the tow and
the tug itself did not physically come into collision at all, and this
is so notwithstanding the tug belongs to the same owner. Liverpool &c.
Navigation Co. _v._ Brooklyn Eastern Dist. Terminal, U. S. Advance
Sheets, 1919-20, 85, decided by the Supreme Court December 8, 1919.
[18] Justice Holmes in Liverpool, etc., Navigation Co. _v._ Brooklyn
Eastern Dist. Terminal (_supra_).
CHAPTER IX
MARITIME LIENS
=1. How Created.=--In general and within the limits hereinafter
mentioned, every service rendered to a ship and every injury done by a
ship, creates a maritime lien upon her for the benefit of the individual
who did the work or suffered the wrong.
Those who furnish supplies or fuel or provisions, or make repairs, or
render services, as well as the members of the crew and officers (except
the master) acquire such liens for the collection of the amounts due
them. A like right or privilege accrues for the damage done through
negligence on the part of the ship resulting in damage to persons or
property, as by collision or injury to cargo. So these liens are divided
into two classes, those _ex contractu_ (arising out of agreements,
express or implied) and those _ex delicto_ (arising out of wrongs or
torts).
The authority of the master to obligate the ship so that a lien arises
has been discussed under the title "Master."
The managing owner, ship's husband, master or any person to whom the
management of the vessel at port of supply is entrusted may by ordering
supplies, repairs, render the vessel liable to a maritime lien. If the
master be drunk or disabled and another person is discharging his duties
and is in effect for the time being master of the ship, such person may
create a valid lien. Thus it has been held that the vessel is bound for
supplies ordered by the mate acting during the illness of the master.
The vessel is also bound for supplies furnished on the order of any
member of the ship's company and with the master's knowledge and
acquiescence. It is customary in the administration of a large modern
ship for the head of each department, e.g., the steward, chief engineer,
to order supplies and for these the vessel is responsible, but only on
the theory that the purchases are made with the master's authority, and
if the person contracting the obligation has acted in excess of the
powers delegated to him by the master, the ship will not be bound. It is
incumbent on the person furnishing goods to a vessel to inquire into the
authority of the individual ordering the same. Moreover, if the goods
ordered are greatly in excess of the vessel's needs, it is incumbent
upon the supplier to know that fact and if the goods ordered, even by
the master personally, are greatly in excess of the vessel's needs the
ship will not be bound.
A maritime lien attaches to the offending ship only, and not to her
cargo (except for unpaid freight) and this is true even though the cargo
belonged to the owner of the offending ship. As was said by Mr. Justice
Brown in the case of the Bristol, 29 Fed. 867:
The cargo, except for the collection of the freight due, cannot be held
for the faults of the ship. There being no lien beyond freight due, no
proceeding _in rem_ lies against the cargo for damages by collision, if
the freight be paid, whether the cargo belongs to the owner of the
offending vessel or not; and, if arrested, the cargo must be released
upon the payment of the freight due.
A maritime lien, being essentially a remedy against the vessel, may
attach even in a case in which the owners are not personally
responsible; as for instance, where a state pilot, in charge of a ship
under a state statute which renders his employment compulsory,
negligently brought the ship into collision, she was subjected to a lien
for the damage done, although the pilot was in no sense the agent of the
owners, and no personal liability rested upon them. The China, 7 Wall.
53.
The lien attaches only by virtue of contracts or torts which are wholly
maritime in their nature. It is frequently difficult to determine the
nature of a contract or tort. Thus persons digging ice and snow from
around a vessel on a beach, and about to be launched did not acquire a
maritime lien because the service was performed on shore. Whereas
persons who floated a vessel which had been carried far ashore were held
to have performed a maritime service and to be entitled to a lien. In a
case in which a vessel communicated fire to a wharf to which she was
made fast, it was held that the tort was not maritime, whereas, had she
been in the stream and had communicated fire to another vessel in the
stream, the tort would have been maritime and would have given rise to a
maritime lien (Hough _v._ Trans. Co., 3 Wall. 20). Conversely a tort
having its inception on land and completed on shipboard will give rise
to a lien. As for example where a man working on board ship was injured
by a piece of lumber thrown through a chute by a man working on a wharf.
(Herman _v._ Mill Co., 69 Fed. 646).
A lien arises in favor of the owners or temporary owners of a vessel
upon cargo actually on board for unpaid freight and for demurrage. This
is the only case in which possession of the security is essential to the
existence of a maritime lien. If the cargo is removed from the ship the
maritime lien is lost. In this class of cases suit to enforce the lien
should be instituted before the cargo is discharged.
=2. Essential Value.=--The essential value of these liens lies in the
right they give to have the ship arrested and sold by a court of
admiralty for their satisfaction, and in the speed and security with
which the remedy can be applied. The vessel is arrested immediately upon
the filing of the libel, before the liability is proven or the case
tried, and may not leave port without giving bond to secure the claim
(see Chapter XVII, Admiralty Remedies).
=3. Independent of Notice or Possession.=--They do not depend upon
notice or recording or possession and do not in any way resemble a
mortgage. They are, in fact, an actual property in the ship, created as
soon as the service is rendered or the wrong suffered (Yankee Blade, 19
How. 82).
=4. Secret.=--As these liens do not depend upon notice or record, they
are essentially secret in their nature and even purchase of the ship, in
good faith and for value, will not be protected against them (The
Marjorie, 151 Fed. 183).
=5. Diligence Required.=--On the other hand the law requires the lienor
to be diligent in enforcing his lien so that third parties may not be
unduly prejudiced thereby. If he is not diligent, the court will hold
him guilty of laches and the lien may become stale as against all
parties other than the owner.
=6. Rules of Diligence.=--There are no hard and fast rules defining
diligence or the limit after which a lien becomes stale. Under the
general maritime law, the voyage was the test; liens which accrued on
one voyage were required to be enforced before another voyage was made
or they became stale as to those of the latter. In deep-sea navigation,
where the voyages are prolonged, this rule still obtains. On the Great
Lakes, where the trips or voyages are comparatively short, and
navigation is closed by the winters, the season of navigation is the
rule. Liens not enforced during the season or the following winter will
be postponed to those of the later season. In New York harbor, the local
conditions have resulted in a forty-day rule; in Virginia, under
somewhat different conditions, a one-year rule has appeared. The safe
method is to be prompt and diligent in collecting liens against a ship;
delay is always dangerous and there may be no other financial
responsibility. This course is also for the best interests of the
shipowner; interest and costs accumulate rapidly where the liens are
enforced by the courts.
In the case of the Marjorie, 151 Fed. 183, above cited, a private yacht
was libeled in Baltimore on account of coal furnished her in Norfolk
nearly a year previously. She spent that time voyaging up and down the
coast, putting in at various ports and when libeled had been laid up for
the winter. She had not been in Norfolk subsequent to the occasion on
which the coal was furnished. About six months after the coal was
furnished she was sold to a new owner, who, finding no lien on record
against her, paid the full purchase price. The Court held:
As commercial enterprise would be vexatiously incommoded and the free
circulation and disposal of vessels prevented if such liens, which are
not required by law to be made manifest by public registration, were
allowed to lie dormant for an indefinite period, the courts have
uniformly held, where the rights of _bona fide_ purchasers will be
injuriously affected if it is allowed to prevail, that the lien is lost
if there has been long delay, and there has been reasonable opportunity
to enforce it. The diligence required is usually measured by the
opportunity of enforcement. In nearly all of the cases where the courts
have held the lien to be lost and where there has been change of
possession, there has been unreasonable delay on the part of the
creditor in availing himself of the opportunities of enforcing his lien.
* * * * *
In the case under consideration the libel was filed within less than a
year. The yacht had been sailing from port to port, and never came
within the jurisdiction of the port where the supplies were furnished.
The claim was a small one and hardly justified the employment of a
detective to follow her wanderings. The lien was asserted as soon as
the yacht was found.... The law is well settled that liens of this
nature must be sustained if there has been reasonable diligence in
asserting them. A long line of decisions shows that a delay of a year
in circumstances such as are disclosed by the testimony is not
unreasonable, and to lay down any other rule would tend to unsettle the
law and to disturb the credit which in the interest of commerce must be
extended to ships for supplies when away from their home ports to
enable them to continue their voyages, a credit only given upon the
faith that they have a lien upon the ship.
=7. Recording Liens on "Preferred Mortgage" Vessels.=--The Merchant
Marine Act of 1920 (Sec. 30, Subsection G. See Appendix), provides that
any one claiming a lien on an American ship which is subject to a
"preferred mortgage" as defined in that Act (see Chapter X, _infra_) may
record a notice of his lien with the Collector of Customs at the port of
documentation, and upon the discharge of the indebtedness, shall file a
certificate to that effect. A lienor who has recorded his lien is
entitled to notice of any proceeding for the foreclosure of a preferred
mortgage. This provision is intended to enable the lienor to come in and
protect his interest.
=8. Limited to Movable Things.=--These liens arise only upon movable
things engaged in commerce and navigation. They cannot exist in anything
which is fixed and immovable and not the subject of maritime commerce or
navigation. Thus they will subsist in vessels, rafts and cargoes but not
upon a bridge or a ship totally out of commission (Rock Island Bridge, 6
Wall. 213; Pulaski, 33 Fed. 383). The lien has been sustained against a
dredge. (Atlantic, 53 Fed. 607).
=9. Priorities.=--Important priorities exist among maritime liens and
these are adjusted when the ship is sold in admiralty to satisfy her
debts. The purchaser at an admiralty sale, as elsewhere stated, takes
the ship free of all existing liens; the proceeds of the sale are
distributed among the lienors according to their priorities, after
deducting costs and expenses.
Liens for torts take precedence over all prior liens, and the later lien
for tort will be preferred to an earlier if there has been an absence of
diligence in enforcing it. The John G. Stevens, 170 U. S. 113, is the
leading case on the priority of liens against the offending vessel for
torts committed by her. Mr. Justice Gray held:
But the question we have to deal with is whether the lien for damages
by the collision is to be preferred to the lien for supplies furnished
before the collision.
* * * * *
The collision, as soon as it takes place, creates, as security for the
damages, a maritime lien or privilege, _jus in re_, a proprietary
interest in the offending ship, and which, when enforced by admiralty
process _in rem_, relates back to the time of the collision. The
offending ship is considered as herself the wrongdoer, and is herself
bound to make compensation for the wrong done. The owner of the injured
vessel is entitled to proceed _in rem_ against the offender, without
regard to the question who may be her owners, or to the division, the
nature, or the extent of their interests in her. With the relations of
the owners of those interests, as among themselves, the owner of the
injured vessel has no concern. All the interests existing at the time
of the collision in the offending vessel, whether by way of part
ownership, of mortgage, of bottomry bond, or of other maritime liens
for repairs or supplies, arising out of contract with the owners or
agents of the vessel, are parts of the vessel herself, and as such are
bound by and responsible for her wrongful acts. Any one who had
furnished necessary supplies to the vessel before the collision, and
had thereby acquired, under our law, a maritime lien or privilege in
the vessel herself, was, as was said in The Bold Buccleugh [7 Moore
P. C. 267] before cited, of the holder of an earlier bottomry bond,
under the law of England, "so to speak, a part owner in interest at the
date of the collision and the ship in which he and others were
interested was liable to its value at that date for the injury done
without reference to his claim [7 Moore P. C. 285]."
Liens arising out of matters of contract will be paid in substantially
the following order:--
Salvage.
Sailors' wages and wages of a stevedore when employed by master or owner.
"Preferred mortgages" (see below).
Pilotage and Towage.
Supplies and Repairs.
Advances of Money.
Insurance premiums (where a lien).
Mortgages not preferred.
It may be regarded as the grand rule of priority among maritime liens,
that they are to be paid in the _inverse order of the dates_ at which
they accrued. Liens arising on a later voyage have priority over liens
of an earlier voyage, and the later in point of time which have been for
the preservation or improvement of the vessel, are to be paid in the
inverse order of the dates at which they accrued, the later debt being
paid in full before anything is allowed to the lien of an inferior
grade. The reason for this is because the loan, or service, or whatever
created the later lien has tended to preserve or improve the first
lien-holder in security for his lien. He is to be preferred who
contributed most immediately to the preservation of the thing.
An important qualification of the rule heretofore governing the priority
of maritime liens on American vessels, is made by the Ship Mortgage Act
of 1920 (Merchant Marine Act, see Appendix). By this act certain
mortgages which conform to its provisions are called "preferred
mortgages" and are made maritime liens enforceable in admiralty. In the
order of priority, a preferred mortgage lien comes next after liens
arising out of tort, for wages of a stevedore when employed directly by
the owner, operator, master, ship's husband, or agent of the vessel, for
wages of the crew, for general average and for salvage. Liens for
repairs, pilotage, towage, freight and charter hire come in subsequent
to "preferred mortgages."
The subjects of liens for salvage, wages, pilotage and towage, advances,
mortgages, freight and charter hire are discussed under the appropriate
titles in this book.
=10. Lien for Repairs and Supplies.=--By act of Congress approved June
23, 1910, provisions were made which substantially changed the law as it
existed theretofore. This act was repealed and reënacted with amendments
by the Merchant Marine Act of 1920 (see Appendix). The latter act (Sec.
30), representing the present state of the law, provides:
Subsection P. Any person furnishing repairs, supplies, towage, use of
drydock or marine railway, or other necessaries, to any vessel, whether
foreign or domestic, upon the order of the owner of such vessel, or of
a person authorized by the owner, shall have a maritime lien on the
vessel, which may be enforced by suit _in rem_, and it shall not be
necessary to allege or prove that credit was given to the vessel.
Subsection Q. The following persons shall be presumed to have authority
from the owner to procure repairs, supplies, towage, use of drydock or
marine railway, and other necessaries for the vessel: The managing
owner, ship's husband, master, or any person to whom the management of
the vessel at the port of supply is intrusted. No person tortiously or
unlawfully in possession or charge of a vessel shall have authority to
bind the vessel.
A person furnishing supplies or repairs to a vessel in the absence of
her owners or temporary owners, and elsewhere than in her home port, and
upon the order of the master, should inquire into the necessity for the
supplies or repairs. If, upon reasonable inquiry, he finds that they are
necessary, he may safely furnish them, relying on the credit of the
vessel and upon his right to a maritime lien upon her. If reasonable
inquiry fails to show any necessity, the supplier or repairer will not
be entitled to a lien, even though the master gave the order.
In the case of the Valencia, 165 U. S. 264, the home port of the ship
was Wilmington, North Carolina. She was plying between New York and
Maine. Coal was ordered for her in New York, not by the master, but by a
steamship company doing business in New York whose relations to the
vessel were not inquired into by the suppliers of the coal. If they had
inquired, they would readily have learned that the steamship company was
a charterer of the vessel and was bound by the charter party to "provide
and pay for all coals." The coal was not paid for and the suppliers
libeled the ship. In directing the libel to be dismissed the Supreme
Court said:
Although the libellants were not aware of the existence of the charter
party under which the _Valencia_ was employed, it must be assumed upon
the facts certified that by reasonable diligence they could have
ascertained that the New York Steamship Company did not own the vessel,
but used it under a charter party providing that the charterer should
pay for all needed coal. The libellants knew that the steamship company
had an office in the city of New York. They did business with them at
that office, and could easily have ascertained the ownership of the
vessel and the relation of the steamship company to the owners. They
were put upon inquiry, but they chose to shut their eyes and make no
inquiry touching these matters or in reference to the solvency or
credit of that company. It is true that libellants delivered the coal
in the belief that the vessel, whether a foreign or a domestic one, or
by whomsoever owned, would be responsible for the value of such coal.
But such a belief is not sufficient in itself to give a maritime lien.
If that belief was founded upon the supposition that the steamship
company owned the vessel, no lien would exist, because in the absence
of an agreement, express or implied, for a lien, a contract for
supplies made directly with the owner in person is to be taken as made
"on his ordinary responsibility, without a view to the vessel as the
fund from which compensation is to be derived." The St. Jago de Cuba, 9
Wheat. 409. And if the belief that the vessel would be responsible for
the supplies was founded on the supposition that it was run under a
charter party, then the libellants are to be taken as having furnished
the coal at the request of the owner _pro hac vice_, without any
express agreement for a lien, and in the absence of any circumstances
justifying the inference that the supplies were furnished with an
understanding that the vessel itself would be responsible for the debt
incurred. In the present case, we are informed by the record that there
was no express agreement for a lien, and that nothing occurred to
warrant the inference that either the master or the charterer agreed to
pledge the credit of the vessel for the coal.
* * * * *
We mean only to decide, at this time, that one furnishing supplies or
making repairs on the order simply of a person or corporation acquiring
the control and possession of a vessel under such a charter party
cannot acquire a maritime lien if the circumstances attending the
transaction put him on inquiry as to the existence and terms of such
charter party, but he failed to make inquiry, and chose to act on a
mere belief that the vessel would be liable for his claim.
The law is even more succinctly stated in the case of the Kate, 164
U. S. 458, as follows:
The principle would seem to be firmly established that when it is
sought to create a lien upon a vessel for supplies furnished upon the
order of the master, the libel will be dismissed if it satisfactorily
appears that the libellant knew, or ought reasonably to be charged with
knowledge, that there was no necessity for obtaining the supplies, or,
if they were ordered on the credit of the vessel, that the master had,
at the time, in his hands, funds, which his duty required that he
should apply in the purchase of needed supplies. Courts of admiralty
will not recognize and enforce a lien upon a vessel when the
transaction upon which the claims rests originated in the fraud of the
master upon the owner, or in some breach of the master's duty to the
owner, of which the libellant had knowledge, or in respect of which he
closed his eyes, without inquiry as to the facts.
If no lien exists under the maritime law when supplies are furnished to
a vessel upon the order of the master, under circumstances charging the
party furnishing them with knowledge that the master cannot rightfully
as against the owner, pledge the credit of the vessel for such
supplies, much less one is recognized under that law where the supplies
are furnished, not upon the order of the master, but upon that of the
charterer who did not represent the owner in the business of the
vessel, but who, as the claimant knew, or by reasonable diligence could
have ascertained, had agreed himself to provide and pay for such
supplies, and could not, therefore, rightfully pledge the credit of the
vessel for them.
Where a charterer becomes the owner _pro hac vice_, as usually occurs in
the case of a "bare-boat" charter, necessary supplies ordered by the
master will entitle the supplier to a maritime lien under the statute,
unless the charter party contains stipulations that were known to the
supplier or which he could have readily ascertained, excluding such
liens. Thus in the latest decision of the Supreme Court in which the act
of June 23, 1910, was construed (South Coast S. S. Co. _v._ Rudnbach,
decided March 1, 1920) a bare vessel was chartered to one Levick, the
contract stipulating that Levick was to pay all charges and save the
owners harmless from all liens. There was also a provision that the
owner might retake the vessel in case Levick failed to discharge any
liens within thirty days, and a provision for the surrender of the
vessel free of all liens, if Levick failed to make certain payments. The
master of the ship had been appointed by the owner, but was under
Levick's orders. When the supplies were ordered representatives of the
owners warned the supplier that the steamer was under charter and that
he must not furnish supplies on the credit of the vessel. He disregarded
the warning and furnished the supplies and libeled the vessel for his
lien. The Court upheld his right to the lien, holding that the warning
of the owner was ineffectual because the charterer had become the owner
_pro hac vice_, the master being his agent and not that of the owner,
and that:
Unless the charter excluded the master's power the owner could not
forbid its use. The charter-party recognizes that liens may be imposed
by the charterer and allow to stand for less than a month, and there
seems to be no sufficient reason for supposing the words not to refer
to all the ordinary maritime liens recognized by the law. The statute
had given a lien for supplies in a domestic port, and therefore had
made that one of these ordinary liens. Therefore the charterer was
assumed to have power to authorize the master to impose a lien in a
domestic port, and if the assumption expressed in words was not
equivalent to a grant of power, at least it cannot be taken to have
excluded it. There was nothing from which the furnisher could have
ascertained that the master did not have power to bind the ship.
=11. Not Sole Remedy.=--The reader will not be misled into supposing
that the absence of a right to a maritime lien means that the debt is
uncollectible by legal process. While the admiralty court is closed to
the creditor if there be no right to a maritime lien, he has the same
remedy as any other creditor by a suit at law to recover the debt or
damage from the debtor, or person liable, i.e., the owner, the temporary
owner, or the person who ordered the goods or did the damage as the case
may be. Such a remedy lacks the peculiar advantages of the maritime lien
(§ 2 _supra_, this chapter). There may also be special remedies open to
him under state statutes (but see § 13, this chapter).
=12. How Divested.=--Maritime items are only completely divested by
payment or by an admiralty sale. Laches--that is to say delay or
sloth--on the part of the lienor may prevent their enforcement against
the rights of subsequent lienors or purchasers for value in good faith,
but the ship is really only absolutely free from them when she has
passed through a sale in proceedings _in rem_--that is, a suit against
the ship. This transfers all claims to the proceeds in the registry of
the court and passes a clear title to the purchaser. The Garland, 16
Fed. 283, is illustrative; she had sunk a yacht in the Detroit River
with great loss of life; her business was that of a ferry between
Detroit, Michigan, and Windsor, Ontario, and her value was about
$20,000; libels were filed against her in Detroit on account of the
collision and she was then arrested in Windsor, by process from the
Maritime Court of Ontario, for a coal bill of $36.30; that court sold
her in accordance with the usual admiralty practice. She then resumed
her business and was arrested under the Detroit libels. These were
dismissed by the United States court because all liens had been divested
by the admiralty sale in Ontario and such sales are good throughout the
world. No other sales, judicial or otherwise, have this effect since
they convey only the title of the owner in the thing and not the thing
itself. Maritime liens, therefore, are not divested or affected by the
foreclosure of a mortgage, or a sheriff's sale on execution, or a
receiver's sale, or any other form of conveyance of an owner's title.
Nor are they divested by a writ of execution issued out of a court of
common law, nor postponed to such execution. This has been held, even
where the execution was in favor of the government.
=13. State Liens.=--For many years there was an open question in the
maritime law of the United States as to the status of liens which arose
in the home port of the vessel and numerous conflicting decisions were
made by the courts. The effect was that in all cases of liens arising
out of contract, like supplies and repairs, the question of upon whose
credit the work was done and the supplies furnished became very
important; where the transaction was in the home port, there was a
presumption that it was on the personal credit of the owner and no lien
was allowed; and the theory of home port became extended to include the
entire State in which the owner resided. Thereupon all of the states
interested in maritime affairs enacted statutes providing for liens upon
vessels, both maritime and nonmaritime in their nature, and a sort of
admiralty proceeding against the ship to enforce them; the procedure
portions of these statutes were generally held void as interfering with
the exclusive jurisdiction _in rem_ of the Federal courts, but the liens
which they created, if maritime in their nature, were usually enforced.
By the act of Congress of June 23, 1910 (as amended and reënacted by the
Merchant Marine Act of 1920, see Appendix), relating to liens on vessel
for repairs, towage supplies or other necessaries, it was declared
unnecessary to allege or prove that credit had been given the vessel and
also provided that the Act shall supersede the provisions of all state
statutes conferring liens on vessels so far as they purport to create
rights _in rem_, that is to say, rights against the vessel herself. It
is yet unsettled whether those of a nonmaritime class survive, as in the
case of the lien for shipbuilding which, not being regarded by the
admiralty as maritime, has been enforceable under the state statutes.
=14. Builders' and Mechanics' Liens.=--These may arise upon a ship under
the provision of local statutes and be entirely enforceable so long as
they do not come into conflict with maritime liens and the exclusive
jurisdiction of the admiralty. So, also, a lienor may assert his
common-law right to retain possession of the ship until payment is made.
This depends entirely on possession and cannot be enforced by judicial
proceedings, although it may be recognized by the court when it arrests
the vessel on other accounts.
=15. Foreign Liens.=--Maritime liens often depend on the law of the
place in which the obligation is incurred and also upon the law of the
ship's flag. In other words, inquiry must frequently be made whether the
local law gives a lien, whether the law under which the ship sails gives
the master power to create the lien, and whether the country in which
the suit is commenced has the legal machinery to enforce the lien. There
is no doubt about our own admiralty courts having adequate jurisdiction
and equipment to enforce any maritime lien which exists by the law of a
foreign country. Its enforcement is a matter of comity and not of right
when the parties are foreigners. Thus the maritime lien for collision
will generally be enforced wherever the offending ship may be seized,
irrespective of the place where the collision occurred. That lien exists
by virtue of the general maritime law. On the other hand, there may be a
closer question in regard to the lien for supplies. They may be
furnished in a port of a country whose laws do not provide such a
maritime lien but only give a remedy by attachment of the ship. The
tendency of the weight of authority is to enforce such liens in the
courts of this country whenever they exist by virtue of the general
maritime law, even if they could not be enforced in the courts of the
country where they arose. Possibly this gives a foreigner an advantage
here over what he would have at home, but this is not really material.
=16. Enforcement of Liens.=--This is discussed in Chapter XVII,
Admiralty Remedies.
REFERENCES FOR GENERAL READING
_Admiralty_, Hughes, Chapter XVII.
_Admiralty Liens of Material Men_, IX American Law Review, 654.
_Features of Admiralty Liens_, XVI American Law Review, 193.
_Maritime Liens_, 4 Law Quarterly Review, 379.
_Priorities among Maritime Liens_, II University Law Review, 122.
The DeSmet, 10 Fed. 483 (excellent annotation).
Lottawanna, 21 Wall. 558.
John G. Stevens, 170 U. S. 113.
CHAPTER X
MORTGAGES AND BONDS
=1. Definitions.=--A vessel mortgage is a conveyance of the ship as
security. A bottomry bond is a contract in the nature of a mortgage by
which the ship is pledged as security for the repayment of money
borrowed and the lender assumes the risk of loss if the ship does not
survive in consideration of maritime interest, usually at a high rate.
Respondentia is a loan on the cargo, to be repaid if the goods arrive,
but, if lost, the borrower is exonerated. Like bottomry, it is
essentially a loan without personal liability beyond the value of the
property mortgaged. Vessel bonds are a modern form of security in the
form of debentures of the owner, carrying interest coupons and secured
by a trust deed or mortgage of the ship.
=2. Bottomry Bonds.=--The name of this class of security on the ship
arose from the fact that the bottom or keel of the ship was figuratively
used to express the whole and to indicate that the entire vessel secured
the loan. The repayment of money borrowed on bottomry depends on the
safe arrival of the ship; if she is lost the loan is lost with her. The
money is at the risk of the lender. Under an ordinary mortgage, the
borrower must pay at all events and his personal liability survives the
loss of his vessel. Under bottomry, the risk is shifted. In
consideration of this risk, the lender is permitted to charge a high
rate of interest without violating the law of usury. Rates of interest
as high as 25 per cent. and higher have been upheld, and while in some
cases the courts have ordered a reduction in the rate when it was
regarded as clearly extortionate, the strong inclination of the courts
is to carry out the bargain as made by the parties. The bond must be in
writing. No particular form is essential but it must rest on the
assumption of maritime risks by the lender or it will be no bottomry. It
may be expressed after the precedent of a common-law bond, with a
recital of the circumstances, provisions showing that the usual risks
are on account of the obligee; and stipulations providing that the
condition of performance or discharge is the safe arrival of the ship at
her designated haven. The lender may secure himself against loss by
taking out insurance. Such bonds may be made by the owner, in the home
port, although this is not usual. He may, of course, make them anywhere.
The master, however, can only do so as in cases of great necessity and
the absence of the owner. His power, in this respect, is like his power
to sell. His first duty is to obtain funds on the personal credit of the
owner. The duty of the master to communicate with the owner, if
possible, before giving a bottomry bond is the same as his duty to
communicate before selling the vessel (Chapters II, § 14; IV, § 9). For
this reason and in view of modern facilities for communication the
giving or making of bottomry bonds by masters has, like the sale of a
vessel by her master, become rare in modern times.
A good illustration of a bottomry bond is found in the case of the
Grapeshot, 9 Wall. 129. There the libel recited that the _Grapeshot_ was
at Rio de Janeiro in April, 1858, was in great need of reparation,
provisions and other necessaries to render her fit and capable of
proceeding to New Orleans, the master having no funds or credit in Rio
de Janeiro, and the owner not residing there and having no funds or
credit there, the libellants at the request of the master loaned him
$9,767.40, on the bottomry and hypothecation of the bark at the rate of
19-1/2 cents, maritime interest; that the master did expend the sum
borrowed for repairing, victualing and manning the bark to enable her to
proceed to New Orleans and that she could not possibly have proceeded
with safety without such repairs and other necessary expenses attending
the refitting of her. Chief Justice Chase described the general
characteristics of a bottomry bond as follows:
A bottomry bond is an obligation, executed generally, in a foreign
port, by the master of a vessel for repayment of advances to supply the
necessities of the ship, together with such interest as may be agreed
on; which bond creates a lien on the ship, which may be enforced in
admiralty in case of her safe arrival at the port of destination; but
becomes absolutely void and of no effect in case of her loss before
arrival.
Such a bond carries usually a very high rate of interest, to cover the
risk of loss of the ship as well as a liberal indemnity for other risks
and for the use of the money, and will bind the ship only where the
necessity for supplies and repairs, in order to the performance of a
contemplated voyage, is a real necessity, and neither the master nor
the owners have funds or credit available to meet the wants of the
vessel.
The Court also quoted with approval the decision in the old case of the
Aurora, 1 Wheat. 96, in which it was said:
To make a bottomry bond, executed by the master, a valid hypothecation,
it must be shown by the creditor that the master acted within the scope
of his authority; or, in other words, that the advances were made for
repairs or supplies necessary for effecting the objects of the voyage,
or the safety and security of the ship. And no presumption should arise
in the case that such repairs or supplies could be procured on
reasonable terms with the credit of the owner, independent of such
hypothecation.
And in summarizing the conclusion reached in the case it was said:
To support hypothecation by bottomry, evidence of actual necessity for
repairs and supplies is required and, if the fact of necessity be left
unproved, evidence is also required, of due inquiry and of reasonable
grounds of belief that the necessity was real and exigent.
These bonds are not required to be placed on record but great diligence
should be employed in enforcing them so that the rights of innocent
purchasers or subsequent lienors may not be impaired.
=3. Respondentia.=--This is security for a loan on marine interest
created on the cargo. It may be created by the cargo-owner, at home, if
he sees fit, but ordinarily, only arises out of necessity during the
course of the voyage. The master has the same authority to borrow on the
security of the cargo as he has in cases of bottomry. The proceeding
must be sanctioned by great necessity and liability to communicate with,
or obtain relief from, the owner of the goods. The duty of communication
is the same as in the case of bottomry bonds (see preceding sections).
The rule with respect to interest is the same as that governing bottomry
bonds. The instrument may be in any form which expresses the facts and
conditions; an ordinary bill of sale may be used or the form of a
bottomry bond. The instrument is not required to be recorded.
The case of Ins. Co. _v._ Gossler, 6 Otto 645, contains an example of a
bond, which was both bottomry and respondentia. The bark _Frances_ en
route from Java to Boston with a cargo of sugar encountered a hurricane
which compelled the master to cut away her mast to save the vessel and
put into Singapore for repairs. Destitute of funds and without credit,
the master executed a bond with maritime interest at 27-1/2 per cent.,
secured upon the boat, cargo and freight. When nearing the completion of
her voyage the bark was cast away on the shore of Cape Cod. She could
not be salved as an intact vessel, but was sold as a wreck and
subsequently broken up by the purchaser in order to make use of the
parts of her. Some of her cargo was saved. The Court held that the
salvaged portion of the cargo and the wreck as she lay on the beach must
respond to the obligation of the bond, saying that nothing but an utter
annihilation of the thing hypothecated would discharge the borrower on
bottomry, the rule being that the property saved, whatever it may be in
amount, continues subject to hypothecation.
Unless the ship be actually destroyed and the loss to the owners
absolute, it is not an utter loss within the meaning of such a
contract. If the ship still exists, although in such a state of damage
as to be constructively totally lost, within the meaning of a policy of
insurance; ... she is not utterly lost within the meaning of that
phrase in the contract of hypothecation.
Thus, the doctrine of "constructive total loss," which is important in
the law of marine insurance, has no application to bottomry. It is
customary in bottomry and respondentia bonds to insert a clause
reserving to the lender, in case of utter loss, any average that may be
secured upon all salvage recoverable.
=4. Necessity for Advances.=--The lender of money on a bottomry bond is
under obligation to satisfy himself that the supplies or refitment for
which the money is borrowed are necessarily required by the vessel. The
act of June 23, 1910 (discussed in § 9 of preceding chapter), apparently
has no application to money advanced on bottomry bonds and certainly has
no application to respondentia bonds. If the actual need for the advance
sought to be secured by the bottomry or respondential bond does not
exist, the bond will not constitute a lien upon the vessel or cargo.
=5. Mortgages.=--These are species of chattel mortgages. The ship is a
chattel or personal property, for many purposes. Prior to June 5, 1920,
these mortgages were not recognized as maritime transactions. The
Merchant Marine Act of that date makes radical changes in the law
governing ship mortgages. The new provisions are to be found in Section
30, which is to be cited, independently of the rest of the statute, as
the "Ship Mortgage Act, 1920," and is printed in full with the rest of
the Merchant Marine Act in the Appendix.
=6. Are Mortgages Maritime Contracts?=--An ordinary mortgage upon a
vessel, whether made to secure the purchase money or to obtain funds for
general purposes, is not a maritime contract. This is the rule in this
country, as announced by the Supreme Court in the J. E. Rumbell, 148
U. S. 1, although it is different under the general maritime law in
other countries. Accordingly, courts of admiralty in the United States,
have no jurisdiction of a libel to foreclose a mortgage or to enforce
title or right to possession under it. If, however, the ship has been
sold under admiralty process, and there are proceeds in the registry
after satisfying maritime liens, the court will pay over the surplus, to
a mortgagee in preference to the owner or general creditors.
The Ship Mortgage Act (_supra_) makes a sweeping exception to the
foregoing rule in cases of American vessels where the mortgagee is an
American citizen and where the parties fulfill certain formalities
required by the Act and discussed in the next section. The Act provides
that these mortgages shall be known as "preferred mortgages" and confers
upon the courts of admiralty exclusive jurisdiction to foreclose them.
There has yet been no judicial interpretation of this Act. Some doubt
may be entertained whether it is within the power of Congress to convert
ship mortgages into maritime contracts; that is to say, can Congress
take a transaction, which has always been regarded as wholly foreign to
the admiralty and confer upon it a maritime quality? The decision of
this point is of the utmost importance and will be awaited with the
greatest concern by every one interested in ships and shipping.
=7. When Postponed to Other Liens.=--An ordinary vessel mortgage is a
very inferior grade of security because it is subordinate to all
maritime liens and has only a qualified and dubious standing in the only
courts which enforce them. One who advances money to a ship or her owner
on mortgage is bound to know that the ship navigates on credit, and must
continue to accumulate liens in order to earn freight, and that she may
be pledged for bottomry or incur liability for torts. He is therefore
postponed to sailors' wages, salvage, towage, advances, bottomry,
general average, repairs, supplies, collision, personal injury, damage
to cargo, breach of contract, penalties, and liens created by local law
which the admiralty will enforce.
Here again the Ship Mortgage Act, 1920, makes a radical change in the
case of "preferred mortgages" given upon American vessels to secure
American investors. The Act makes the lien of a "preferred mortgage"
inferior to liens of prior date and liens for damages arising out of
tort, for wages of stevedores when employed directly by the owner,
operator, master, ship's husband, or agent of the vessel, for wages of
crew, general average and salvage, including contract salvage; but
superior to all other liens, such for example as repairs, supplies,
towage, pilotage, etc.
=8. Form.=--No particular form is essential to a vessel mortgage except
that the requisites of the Federal Statutes in regard to recording and
conveyance must be observed if it is to be placed on record in the
office of a collector of customs. They require that every instrument in
the nature of a bill of sale or other conveyance or incumbrance of any
ship or vessel, shall be duly acknowledged before a notary public or
other officer authorized to take acknowledgments of deeds (7 U. S. Comp.
St. §§ 7778, 7779). It should contain a copy of the last certificate of
registration or enrollment. Government blank mortgages can usually be
obtained at the custom house and are preferred, although any instrument
following their general form will be sufficient. A bill of sale may be
used, although absolute in its terms, and the fact that it is only
security can be shown by parole.
Trust-deeds or mortgages securing issues of bonds are in general use
where large amounts are involved. These forms are very elaborate and
resemble railroad mortgages in their elaborate details. In all vessel
mortgages, important provisions are those in regard to the insurance,
the amount of liens which the ship may incur, the waters which she may
navigate, and the rights of the mortgagee on default. It is desirable to
provide for contingencies, as far as possible, by clear and definite
agreements in the instruments.
To entitle a mortgage of an American vessel to an American mortgagee to
the status of a "preferred mortgage" under the Ship Mortgage Act, 1920,
giving its lien the superiority described in the preceding section, it
is necessary that it should be recorded; that an affidavit be filed at
the time of recordation to the effect that the mortgage is made in good
faith and without design to hinder, delay or defraud any existing or
future creditor of the mortgagor or any lienor; and that there be
endorsed upon the ship's documents the names of the mortgagor and
mortgagee, the time and date of the endorsement; the amount and date of
the maturity of the mortgage. The formalities to be observed in the
creation of "preferred mortgages" are described in detail in the Act
which is printed in full in the Appendix and should be observed with
scrupulous exactness.
=9. Recording.=--No mortgage of any vessel of the United States is valid
against third parties unless it is duly recorded in the office of the
collector of customs where such vessel is registered or enrolled. She
must be registered or enrolled by the collector of that collection
district which includes the port to which such vessel shall belong at
the time of her registry; which port shall be deemed to be that at or
nearest to which the owner, if there be but one, or, if more than one,
the husband or acting and managing owner of such vessel usually resides.
Unless a mortgage is properly recordable in the custom house, the mere
fact that it is recorded there is insufficient to give it validity
against others than the mortgagor. Record in the wrong office and
premature record in the right office are equally invalid. Thus a
mortgage was held bad against general creditors in the case of the
Empire Shipbuilding Company, 221 Fed. 223, where it was made before the
ship was completed and recorded on the same day she was enrolled. The
proper course would have been to first enroll the ship as a vessel of
the United States and then execute and record the mortgage. As we have
observed in Chapter II, § 16, _supra_, where a vessel at sea is
mortgaged it is wise, in order to be safe until she returns, to record
the mortgage at the home port, as shown by her outstanding document, as
well as at the new home port if there is to be a change of home port.
=10. Rights of Mortgagee.=--These depend principally upon the
stipulation in the mortgage. He is entitled to have his security made
available to the satisfaction of his debt, but, until foreclosure, the
ship is subject to many claims which may impair or destroy its value. If
seized by admiralty process, the mortgagee may appear and protect his
interest, as by taking possession under the usual claim and bond.
Seizures or levies under local law are subject to the rights of the
owner of a valid mortgage. Generally, the terms of the instrument will
provide that, upon any default by the mortgagor or impairment of the
security by acts of third parties, the mortgagee may take possession,
declare the entire debt due, and foreclose. Where maritime liens affect
the security, the mortgagee is entitled to pay them and be subrogated
thereto, that is to say, after discharging the liens, he stands in the
shoes of the lienors. Where the ship has been arrested and sold by a
court of admiralty, and its proceeds are in the registry, he may appear
and file an intervening petition for the protection of his interest
therein. Where the admiralty disclaims jurisdiction over vessel
mortgages, it will pay over surplus proceeds to the mortgagee in
preference to the owner or the owner's general creditors. So the
mortgagee may answer and contest the claims of the lienors in their
proceedings against the ship.
=11. Liabilities of Mortgagee.=--A mortgagee in possession of the ship
becomes liable as owner for supplies furnished or repairs made at his
request or at the request of those apparently authorized to act for him.
So, if he operates the ship, he will be liable for the risks and
expenses of the voyage.
=12. Transfer and Payment.=--A vessel mortgage may be assigned or
transferred like other similar forms of security. If the debt is
evidenced by negotiable promissory notes or bonds, the transfer of them
carries with it the security, although the more usual and convenient way
is by a formal assignment of mortgage placed on record with the
collector. The assignee succeeds to all the rights of the original
mortgage. So the mortgage may descend to heirs or pass to creditors like
other personal property, in accordance with the law of the owner's
domicile.
On payment of the debt, the mortgage is automatically canceled and the
mortgagor is entitled to have the fact placed upon the records by the
usual certificate of payment and discharge.
In the case of "preferred mortgages" under the Ship Mortgage Act, 1920,
the ship's documents may not be surrendered (except in case of
forfeiture or judicial sale) without the approval of the Shipping Board
which will be withheld unless the mortgagee consents, and the interest
of the mortgagee will not be terminated by a forfeiture of the vessel
unless the mortgagee was implicated in the act which caused the
forfeiture. No rights under any mortgage of an American ship, whether
preferred or not, may be assigned to any person not a citizen of the
United States without the approval of the Shipping Board.
=13. Foreclosure.=--A mortgage upon an American vessel, although
necessarily recorded according to Federal law, is still only a chattel
mortgage for many purposes and must be foreclosed in accordance with
local law. This will be in one of three ways: by a suit in a court of
competent jurisdiction to obtain a decree of foreclosure and sale, by a
sale in accordance with local statutory provisions in respect of chattel
mortgages, by exercise of the power of sale which is usually contained
in the instrument itself. The last is the method best adapted to vessel
property and carefully drawn mortgages usually contain plain and
adequate provisions for that purpose. If, however, the mortgagee be an
American citizen and the requirements of the Ship Mortgage Act, 1920,
with reference to "preferred mortgages" have been complied with, the
foreclosure proceeding is to be instituted in a United States District
Court sitting in admiralty, and no one except an American citizen may
purchase an American ship at a sale by admiralty decree in a suit _in
rem_. The mortgagor's title can only be extinguished by foreclosure but
stipulations giving the mortgagee the power, on breach of condition, to
dispose of the mortgaged property, at public or private sale, and after
applying the proceeds to his expense and debt, to account for the
surplus to the mortgagor, are valid and may be executed without resort
to a court. The mortgagor may appoint the mortgagee, as well as any
other person, to sell his property for the purpose of satisfying his
debts. The mortgagee should proceed strictly in accordance with the
power of sale and carefully observe its terms in regard to notice, time
and place. The conduct and fairness of such sales are open to
investigation at the instance of the mortgagor and will be set aside on
proof of unfair or oppressive conduct or deviation from the terms of the
power or statute. It is not necessary to hold the sale on board the ship
if the mortgage provides another place, but, in the absence of such a
provision, it would be safer to so make the sale as there are
authorities holding that the mortgaged property must be in view when the
sale is made. There are numerous rules in the general law of foreclosure
of chattel mortgages which are quite inapplicable to ships and much
embarrassment may be avoided if the instrument is drafted with these in
mind. The courts will enforce the contract as the parties make it, if
its provisions are plain and are carefully observed. As in other cases,
the sale may be adjourned from time to time and the mortgagee may employ
an agent or attorney to make it. The debt may be used instead of money;
the mortgagee may bid in the property himself and execute an appropriate
bill of sale. The power of sale is merely cumulative and will not
prevent a suit for foreclosure or an action at law on the debt. The sale
is, of course, subject to all maritime liens superior to the mortgagee,
but will extinguish all subordinate liens and subsequent titles if the
mortgage was duly recorded.
Where an American ship subject to a "preferred mortgage" is sold at an
admiralty sale at the suit of a lienor whose lien is inferior to that of
the mortgage, the Ship Mortgage Act, 1920, provides that the vessel
shall be sold free from all preëxisting claims, but the court shall, at
the request of the mortgagee, the libellant or any intervenor, require
the purchaser to give and the mortgagor[19] to accept a new mortgage of
the vessel for the term of the original mortgage, and in that case the
mortgagee shall not be paid from the proceeds of the sale and the
purchase price shall be diminished in the amount of the new mortgage
debt.
REFERENCES FOR GENERAL READING
_Chattel Mortgages_, Herman (1877), Chapter XIII.
_Mortgages_, Boone, § 254.
J. E. Rumbell, 148 U. S. 1.
Grapeshot, 9 Wall. 129.
Blake, 107 U. S. 418.
O'Brien _v._ Miller, 168 U. S. 287.
[19] Apparently a misprint in the act for mortgagee.
CHAPTER XI
COLLISION
=1. Definition.=--In maritime law, collision is the impact of ship
against ship, although usage is increasing the scope of the word so as
to include contact with other floating bodies. It does not include
stranding or running into structures forming a part of the land, such as
bridges and wharves.
The question whether a collision is a subject for adjudication in
admiralty is frequently one of some nicety. What constitutes a vessel
within the meaning of admiralty jurisprudence has been discussed in
Chapter 1, § 4.[20] While, in general, objects which come into collision
must be afloat in the water to warrant recourse to the admiralty courts,
and certainly must not be permanently attached to the shore,
nevertheless the jurisdiction has been exercised when the collision was
between a barge and a pier erected in the midst of a stream and
unlawfully obstructing navigation. Atlee _v._ Union Packet Co., 21 Wall.
(U. S.) 389. The jurisdiction has also been exercised where boats have
come into collision with submerged and stranded wrecks and sunken
articles.
=2. Liability Dependent on Negligence.=--Liability for collision depends
on negligence or fault causing or contributing to the disaster. Such
negligence may be on the part of the ships actually in contact with each
other or of outside vessels and consists in the violation of the
statutory regulations for preventing collisions at sea or the failure to
exercise that skill, care, and nerve ordinarily displayed by the average
competent master. Collisions may occur without negligence, or by
inscrutable fault, and then there is no liability for the resulting
damage. Such are collisions solely due to the darkness of the night or
to storms. In the Morning Light, 2 Wall. 550, the collision occurred at
4 A. M., on an intensely dark night in a dense fog and rain. The court
(Clifford, J.) said:
Reported cases where it has been held that collisions occurring in
consequence of the darkness of the night and without fault on the part
of either party, are to be regarded as inevitable accidents are
numerous.
* * * * *
Where the loss is occasioned by a storm or any other _vis major_, the
rule as established in this court is, that each party must bear his own
loss, and the same rule prevails in most other jurisdictions....
Different definitions are given of what is called an inevitable
accident, on account of the different circumstances attending the
collision to which the rule is to be applied.
Such disasters sometimes occur when the respective vessels are each
seen by the other. Under those circumstances, it is correct to say that
inevitable accident, as applied to such a case, must be understood to
mean a collision which occurs when both parties have endeavored by
every means in their power, with due care and caution, and a proper
display of nautical skill, to prevent the occurrence of the accident.
When applied to a collision, occasioned by the darkness of the night,
perhaps a more general definition is allowable. Inevitable accident,
says Dr. Lushington, in the case of the Europa, 2 Eng. Law & E. 559,
must be considered as a relative term, and must be construed not
absolutely, but reasonably with regard to the circumstances of each
particular case. Viewed in that light, inevitable accident may be
regarded as an occurrence which the party charged with the collision
could not possibly prevent by the exercise of ordinary care, caution
and maritime skill.
=3. Tests of Negligence.=--The primary question is whether there has
been a violation of any of the regulations or rules of navigation.
Navigable waters constitute a common highway and the rights and duties
of vessels using them are quite similar, in legal principles, to those
of vehicles using streets, and roadways on the land. Hence the general
maritime law recognized the practice of keeping to the right, avoiding
others whose movements were hampered, and not running down another
because he was on the wrong side. Ultimately the general practice of
navigators was expressed in formal rules and finally all nations united
in promulgating them in the form of statutes which are now practically
uniform throughout the world. They are, in effect, a code of
international law for the purpose of avoiding collisions. Back of these
special rules are the general requirements of the maritime law in regard
to careful navigation; a lookout is essential although there is no
statute requiring one to be maintained.
It should be observed that vessels navigating in darkness, fog or storm
must take all precautions against collision which such a state of things
would suggest to a prudent navigator. A vessel failing to take such
precautions will be in fault in a collision. Failure to hear fog signals
is not negligence. The ordinary steering and sailing rules do not apply
in fog.
=4. The Regulations.=--The express rules for the navigation of vessels
of the United States consist of the following:
1. International Rules (Act of Aug. 19, 1890, as amended; U. S. Comp.
St. 1916).
2. Rules for Great Lakes and connecting waters (The "White Law"; Act of
February 8, 1895; U. S. Comp. St. 1916).
3. Rules for Harbors, Rivers and Inland Waters (Act of June 7, 1897;
U. S. Comp. St. 1916).
4. The Mississippi Valley Rules, § 4233, Revised Statutes.
5. Rules of Supervising Inspectors.
6. Local rules and municipal regulations.
These rules deal with the distinctive lights required for different
vessels, signals, speed, rules governing the management of sailing and
steam vessels under different conditions of weather and various relative
positions of vessels. While they have very often been the subject of
judicial interpretation in collision cases their application belongs to
the subject of navigation rather than to that of admiralty law in the
present work.
The statutory rules are of the highest importance and the mere fact of a
breach of any of these is _prima facie_ (but not conclusive) evidence of
negligence. The infringing vessel must satisfy the court that its
violation of law not only did not, but could not, contribute to the
collision.
As was said by Chief Justice Fuller in Belden _v._ Chase, 150 U. S. 674:
They are not mere prudential regulations, but binding enactments,
obligatory from the time that the necessity for precaution begins, and
continuing so long as the means and opportunity to avoid the danger
remains. Obviously they must be rigorously enforced in order to attain
the object for which they were framed, which could not be secured if
the masters of vessels were permitted to indulge their discretion in
respect of obeying or departing from them. Nevertheless, it is true
that there may be extreme cases where departure from their requirements
is rendered necessary to avoid impending peril, but only to the extent
that such danger demands.
* * * * *
Obedience to the rules is not a fault even if a different course would
have prevented the collision, and the necessity must be clear and the
emergency sudden and alarming before the act of disobedience can be
excused. Masters are bound to obey the rules and entitled to rely on
the assumption that they will be obeyed, and should not be encouraged
to treat the exceptions as subjects of solicitude rather than the rules.
It is true that where obedience to the rules will result in collision a
navigator is justified in disobeying the rule. It was held in the
Oregon, 158 U. S. 186, "that the judgment of a competent sailor _in
extremis_ cannot be impugned." Cases in which disregard of the rules has
been upheld as justifiable by the courts have generally been cases in
which the other vessel has already infringed a rule and a situation has
arisen in which obedience to the rule could only result in collision.
Such exceptions, however, as was said in the Albert Dumois, 177 U. S.
240, "are admitted with reluctance on the part of the courts, only when
the adherence to such rules must almost necessarily result in a
collision--such, for instance, as a manifestly wrong maneuver on the
part of an approaching vessel." In the John Buddle, 5 Notes of Cas. 387,
it was said:
All rules are framed for the benefit of ships navigating the seas, and
no doubt circumstances will arise in which it would be perfect folly to
attempt to carry them into execution, however so wisely framed. It is,
at the same time, of the greatest possible importance to adhere as
closely as possible to established rules and never to allow a deviation
from them unless the circumstances which are alleged to have rendered
such deviation necessary are most distinctly approved and established;
otherwise, vessels would always be in doubt and go wrong.
=5. Damage to Ship.=--The owner of a ship wrongfully injured by
collision is entitled to complete restitution. If the loss is total, he
recovers her value, with interest from the date of the loss. If the loss
is partial, he will recover the cost of full and complete repairs and if
such repairs make the vessel a better and stronger one than she was
before, he is entitled to that benefit; he will also recover demurrage
or compensation for the loss of use of his ship during the time occupied
by the repairs.
It frequently happens that the ship is not an absolute total loss, in
the sense of being completely destroyed or sunk beyond possibility of
recovery, but so injured that the cost of repair will exceed the value
at the time of collision; the owner may then treat her as a constructive
total loss and claim from the wrongdoer the same amount as if the
destruction had been complete. In other words, when the ship is so
injured that a prudent business man would not repair, the owner abandons
the wreck and claims a total loss. If he recovers, the title to the
wreck passes to the wrongdoer.[21]
Expenses incident to the collision are also included in the ship's
damage, such as the owner's disbursements in looking after his property;
the cost of protest and survey; the wages and board of the crew while
necessarily kept on board, the costs of superintending repairs and
securing a new rating.
Loss of freight is also an item of damage.
=6. Damage to Cargo.=--The cargo-owner is entitled to recover his
damages from the offending ship and the ordinary measure is the value of
the goods at the time and place of a total loss, with interest and
incidental expenses. The purpose of the rule is to place him, as nearly
as may be, in the same position as if the collision had not occurred.
Where the loss is partial, as where the goods arrive in a damaged
condition, the measure is the difference between their actual value and
what they would have been worth in good condition; to this may be added,
in appropriate cases, the expenses of transhipment, reconditioning,
warehousing, survey and sale.
Where both vessels are in fault the owner of the cargo may sue either or
both, or as was said by Justice Clifford in the Atlas, 3 Otto 302:
Parties without fault such as shippers and consignees, bear no part of
the loss in collision suits, and are entitled to full compensation for
the damage which they suffer from the wrongdoers, and they may pursue
their remedy _in personam_, either at common law or in the admiralty,
against the wrongdoers or any one or more of them, whether they elect
to proceed at law or in the admiralty courts.
* * * * *
Innocence entitled the loser to full compensation from the wrongdoer,
and it is a good defense against all claims from those who have lost.
Individual fault renders the party liable to the innocent loser, and is
a complete answer to any claim made by the faulty party, except in case
where there is mutual fault, in which case the rule is that the
combined amount of the loss shall be equally apportioned between the
offending vessels.
In the foregoing case the owner of a cargo, lost in a collision in which
both vessels were held to be at fault, libeled one of them and decreed
his entire damage against the vessel which he sued. A vessel so
compelled to pay the whole damage to cargo, in a case of mutual fault,
is entitled to recover from the other vessel a contribution so as to
equalize the loss as between the two ships.
But this important qualification of the foregoing rule must be observed:
That a shipper of cargo who is prevented from recovering against the
vessel on which his cargo was shipped, as for instance by his contract
of affreightment, or by some rule of law, as, for example (in an
applicable case), the Harter Act, cannot hold the other vessel for the
entire damage but only for one-half thereof.
In the case of the Niagara, 77 Fed. 329, the steamer _Niagara_ was in
collision with the bark _Hales_, the Court held:
Both vessels being, therefore, in fault, the owners of the bark are
entitled to recover against the _Niagara_ one-half their damages for
the loss of the bark, to be applied so far as may be legally applicable
and necessary in payment of the value of one-half of the cargo claimed
under the other libel; and the _Niagara_ is liable for any deficiency
to make good the whole value of the cargo owners; as well as for
one-half the claims for personal effects.
* * * * *
If the Harter Act, however, were applicable, it would not affect the
liability of the _Niagara_ in the present case; but only the
application, as between the shipowner and the owners of the cargo, of
the sum the _Niagara_ must pay. The _Niagara_ suffered but little
damage; while the loss of the _Hales_, and of the cargo, are estimated
to have been respectively about $16,000 and $26,000. In applying the
Harter Act to cases of division of damages for mutual fault, I have
heretofore held (1) that it was not the intent of Congress to relieve
the carrier vessel at the expense of the other vessel in fault, by
increasing the latter's liability, but that the intent was that the
cargo should bear the consequences of the carrier's neglect in
navigation; (2) that the relief given by the Act to the carrier vessel
from responsibility for damage to her cargo, could not be nullified
indirectly by a charge against her in the shape of an offset in favor
of the other vessel in fault on account of that same cargo; (3) that
the extent of the latter vessel's previous liability on the particular
facts of each case was not to be diminished by the Harter Act from what
she would previously have been bound to pay, except as respects her own
cargo; and (4) that the result, therefore, must be that the cargo owner
of each ship must stand charged under the Harter Act with so much of
the cargo damage as the carrier ship is relieved from by that Act,
whenever and so far as that is necessary to avoid any increase in the
previous liability of the other ship. The Viola, 60 Fed. 296.
Upon any complication, the first inquiry is, to what amount was each
vessel, or her owner, liable under the previous law, upon the
particular facts of the case? Under the Harter Act, if it is
applicable, that liability cannot be exceeded, and it will remain the
same, if necessary to make good the damage to the cargo of the other
ship. In getting at the amount which either vessel is to pay under the
Harter Act, her own cargo is to be treated as nonexistent; because
where the Harter Act is operative the carrier vessel (A) is not liable
for that item of damage. But the other ship (B) is bound to pay that
item of cargo loss, as well as one-half the damage to the two ships, up
to the limit previously ascertained, as above stated, if the remaining
value of the ship (B) and her pending freight are sufficient for that
purpose. Where this value is not sufficient, and the damage to the
first vessel (A) is greater than the damage to the other ship (B), two
conflicting claims arise, one in favor of the ship (A), for the purpose
of equalizing the loss on the two vessels, and another claim for the
loss on A's cargo. As those claims arise at the same time, and are of
equal merit, the remaining value of the ship (B) and her pending
freight should be apportioned pro rata, according to the amount of the
two claims.
In the present case the _Hales'_ loss was about $16,000; that of her
cargo about $26,000. The loss on the _Niagara_ was slight, and of her
cargo, nothing. Before the Harter Act, the _Niagara_, upon the above
figures, would have been obliged to pay $8,000 for half the loss of the
_Hales_ (which would, however, have been applied upon the latter's
liability to her cargo); $13,000 for half the cargo loss, and $5,000 in
addition, on account of the total loss of the _Hales_, in order fully
to indemnify the cargo, making $26,000 in all (The Atlas, 93 U. S.
302). Under the Harter Act, the _Hales_ being relieved from any
liability to her cargo for this damage, her owners would retain the
$8,000 for their own use, instead of applying it on the cargo as
before; but the _Niagara's_ liability is not to be thereby increased or
diminished. This item of loss is transferred by the Harter Act to the
cargo. The _Niagara_ must pay, therefore, as before, $13,000, and the
$5,000 (that is, $18,000), on account of the cargo loss, and the
cargo-owner loses the $8,000, which his carrier under the Harter Act is
entitled to retain. It is immaterial, therefore, to the _Niagara_
whether the Harter Act is applicable or not. It affects only the
distribution of the $26,000.
=7. Damage to Crew and Passengers.=--Personal belongings of crew and
passengers may be lost or injured in the collision and the measure of
damages is the same as in the case of the cargo. If totally lost, the
value at the time of the collision governs not what the articles
originally cost when new. If only injured, then the difference between
sound and damaged condition controls. Interest follows as in other cases.
Personal injuries and loss of life are also included in collision
damage. The measure here is the same as in similar matters on land.
=8. Contribution.=--The 59th Rule in Admiralty provides that the
claimant of any vessel proceeded against, or any respondent proceeded
against _in personam_ may bring in a petition alleging fault in any
other vessel contributing to the collision, and praying that such other
vessel be made a party to the suit. The other parties to the suit are to
answer the petition and the vessel or party newly brought in shall
answer the libel. This brings in both vessels, provided the vessel so
brought in is within the jurisdiction of the court and can be reached by
its process, and makes it possible for the court to enforce appropriate
contribution of damage by the parties in fault.
Since we have already seen that, in a case in which both vessels are in
court in the first place, the court will decree contribution, there
remains only the case in which a claimant of lost cargo has brought suit
against one vessel or her owner, and the other vessel cannot be reached
by process of the court. Suppose that in such a case the cargo-owner
gets a decree against the vessel or party defendant and for his full
damage, can the vessel or the party thus mulcted maintain an independent
suit for contribution against the other offending ship? It can only be
said that on this point the authorities are in direct conflict; however,
in the modern case of Lehigh Valley R. R. Co. _v._ Cornell Steamboat
Co., 218 U. S. 264, it seems to be clearly inferable that in the opinion
of the Supreme Court of the United States such an action is maintainable.
What has been said with respect to damage suffered by owners of lost
cargo, applies equally to damages for personal injuries sustained as the
result of a collision.
=9. Division of Damages.=--Where both, or several, ships are in fault,
the maritime law apportions the damage between them. When one of two
vessels has suffered more than the other the decree is against the one
least injured for one-half of the difference in their respective losses.
In the North Star, 106 U. S. 17, where both vessels were adjudged in
fault for a collision and one, the _Ellis Warley_, became a total loss,
the owners of the _Warley_ advanced the ingenious argument that,
inasmuch as their vessel had been entirely lost, they were entitled to
limit their liability and, by so doing, recover one-half their entire
damage from the _North Star_, without any deduction for the damage
suffered by her, notwithstanding the rule of division of damage in such
cases. It will be noticed that the vessel claiming the right to limit
liability, being the greater sufferer, would, in no event, have been
required to pay anything to the other, and that the _North Star_, which
had to do the paying, did not claim any right to limit liability. In
rejecting this argument and holding that the time to apply the
limitation-of-liability rule was after the amount of the liability had
been ascertained, when the party decreed to pay might claim the benefit
of the rule if entitled to it, the Court entered upon an instructive
review of the entire history of the division of damage, and found that
the theory is not that the owner of the one vessel is liable to the
owner of the other for one-half of the damage sustained by the latter,
and _vice versa_, that the owners of the latter are liable to those of
the former for one-half of the damage sustained by her; but that the
joint damage is equally divided between the parties; that it is a case
of average and is to be computed by subtracting the lesser loss from the
greater, dividing the difference by two and directing the vessel
sustaining the smaller loss to pay the other the amount so found.
Where both vessels are in fault and only one is injured, the uninjured
vessel must pay to the other one-half of the amount of her damage
without deduction.
The cargo, being innocent, may sue both vessels or either, but if the
result is that one is so compelled to pay more than its proper
proportion of the total, a suit for contribution under the conditions
set forth in the preceding section will lie in order to accomplish an
ultimate equality. The admiralty does not recognize the common-law rule
that contributory negligence prevents recovery and the same division or
apportionment of damage is applied to cases of personal injury in
collision as otherwise.
=10. Lien.=--The party injured by collision acquires a maritime lien of
high rank upon the guilty vessel which attaches at the moment the damage
is done and inheres, as a property right, until it is satisfied, bonded,
or extinguished by an admiralty sale, or abandoned by his own laches, or
delay in enforcement. It attaches to the hull of the ship and also to
her engines, boilers, boats, apparel and freight pending but not to her
cargo and, equally, whether the offending ship was in actual contact
with the other or whether she caused the collision between other ships
by her own negligent navigation, as by suction or displacement waves.
The lien will follow the ship into the hands of an innocent purchaser
for value unless proceedings to enforce it have been unreasonably
delayed or other circumstances render its enforcement inequitable. It
has priority over almost all other maritime liens, only subsequent
salvage and wages being ordinarily preferred.
Since the enactment of the act of March 30, 1920, a lien arises out of
the loss of life in a collision, as in the case of personal injuries.
=11. Limitation of Liability.=--Where the owner of the offending vessel
is not personally at fault for the disaster, his liability is limited to
the value of his ship and freight pending, as of immediately after the
disaster. If the ship is lost, his liability disappears with her. He is
not, under American law, obliged to account for the insurance because
that is not a part of the ship but the result of an independent,
collateral contract.
=12. Remedies.=--The most usual remedy employed in cases of collision is
that afforded by the Limited Liability Law.[22] This gives the shipowner
the right to call all damage claimants into one court and dispose of
everything in a single proceeding, thus eliminating a multiplicity of
suits in different jurisdictions. The question of fault may be litigated
in this proceeding and it may be commenced either before or after the
commencement of other actions. Injured parties, if they choose, may sue
at common law as in other cases of negligence. The more effective
remedies, however, are in admiralty. They may there proceed directly
against the ship, or the ship and master together, or against the master
or the owner alone, personally. The master of the injured ship may bring
the suit in his own name on behalf of all concerned, including the
cargo. Underwriters who have paid for losses caused by collision become
subrogated to the rights of their assured and may sue accordingly.
=13. Evidence.=--The party alleging negligence must bear the burden of
proof in establishing it. He must show fault on the part of the other
vessel as well as due care on his own. By act of Congress, approved
September 4, 1890 (26 St. at L. 425), the so-called "Stand-by" act,
failure of a vessel to stay by another vessel with which she has been in
collision until there is no further need of assistance, raises the
presumption that she is in fault for the collision. This presumption,
however, is not conclusive, but may be rebutted by testimony. Cases of
this kind appear to be inconsistent with the doctrine laid down in some
of the earlier decisions and represent a modern tendency to extend the
maritime jurisdiction. Sometimes the conceded facts establish a
presumption of fault, as where a collision occurs with a ship properly
at anchor or between steam and sail. This will usually appear on the
pleadings. The facts at issue are shown by the testimony of those who
saw or participated in the disaster. These generally come from the
officers and crews of the vessels involved and every man ought to be
accounted for. Extreme contradictions are to be expected in the evidence
as there is a natural tendency on the part of sailors and passengers to
be so loyal to their own ship as to impute every fault to the one which
runs into her. The courts seldom attempt to reconcile conflicting
testimony but frequently decide on the conceded facts and probabilities.
The evidence of disinterested parties is of much weight.
REFERENCES FOR GENERAL READING
_Law of Marine Collisions_, H. R. Spencer. Chicago, 1895; Callaghan & Co.
_Collisions at Sea_, R. G. Marsden. London, 1904; Stevens and Sons, Ltd.
_Damages in Maritime Collisions_, E. S. Roscoe. London, 1909;
Butterworth & Co.
_Admiralty Law_, 8 Columbia Law Review (March, 1908).
Scotia, 14 Wall. 170.
Belgenland, 114 U. S. 355.
[20] In Seabrook _v._ Raft, 40 Fed. 596, where there was a collision
between a raft and a dredge, moored by six anchors, the jurisdiction was
sustained.
[21] In modern practice, insurance is nearly always carried upon a
vessel and cargo. The modern authorities on the subject of constructive
or total loss and abandonment, as well as the items of damage
recoverable on account of vessel and cargo are, in nearly every
instance, cases arising out of policies of marine insurance. This
subject is treated at large in another volume of this series.
[22] See Chapter VIII, _supra_.
CHAPTER XII
TOWAGE AND PILOTAGE
=1. Definition.=--Towage is the service rendered by one vessel to
another in moving her from point to point under ordinary circumstances
of navigation. Pilotage is the navigation of a vessel by one having
special knowledge of the waters, as pilot.
=2. Towage Service.=--This is rendered by the tug to the tow. Tugs are
usually specially built and equipped for the business and supply a very
important aid to commerce and navigation. The service is generally by
contract or informal agreement and includes both the short work in
shifting vessels in port and the long voyage and season contracts along
the coast and in the canals and Great Lakes. It may be performed in
various ways. Sometimes the tug is lashed to the tow and supplies motive
power only and sometimes she pulls several vessels behind her upon
hawsers from each to the other of great length. The legal relations,
however, are usually the same.
The tug should be supplied with hawsers of sufficient strength to hold
the tow in any weather which may be reasonably anticipated, unless the
tow itself supplies them. Where the tug is given full control, it should
arrange the order of towage and the distances apart. It should also
arrange, by an understood code of signals, for shortening, lengthening,
or casting off the lines, as exigencies of navigation may require.
Vessels of heavy draft should be placed behind those of lighter draft.
The speed of the tug should be such as is reasonably safe for the
condition of the tow and sudden jerks and turns must be avoided.
Disaster does not necessarily absolve the contract of towage. On the
contrary, it is quite settled that it is the duty of the tug to continue
to do all in its power to get its tow out of situations of difficulty
and danger, short, of course, of sacrificing its own safety. It is not
relieved from its obligation because unexpected difficulties occur and
may not lightly abandon the tow to its fate. Extraordinary services
under a towage contract may secure a salvage reward, but too great haste
in abandoning it will impose a corresponding liability.
=3. Compensation.=--The rate of compensation is determined by express
contract, or in the absence of such contract by the customary rates
prevailing in the port or locality, and in the absence of contract or
custom by the fair value of the service rendered. Unless the service
performed amounts to a case of salvage the compensation will not be
determined by the rules governing salvage. Towage services are
presumptively a maritime lien on the tow, and where the owners of the
tow contend that the service was performed upon their personal credit,
instead of upon that of the vessel, they must affirmatively establish
that fact (Erastina, 50 Fed. 126). The lien for towage and pilotage is
in general superior to all liens except those for salvage and seamen's
wages and "preferred mortgages" given on American ships pursuant to the
Merchant Marine Act of 1920 (see Appendix). Thus the Court in the
Mystic, 30 Fed. 73, said:
I am of the opinion that this claim of towage is and should be
considered a maritime lien upon the schooner. It is a conceded fact in
this case (and if it were not, probably the court would take notice of
the usual course of maritime business in this port) that all vessels
entering and leaving the port of Chicago are required by the ordinances
of this city to do so in the tow of a tug; and the usual course of
business is for the tug to take vessels in tow at some point outside of
the entrance to the harbor, and tow them to the dock to which they are
consigned. This class of service takes the place of the labor of the
crew, and I can see no reason why it is not to be treated as next in
rank, if not in the same order of priority, as seamen's wages. It is
probably, however, more analogous in the nature of the service to
pilotage, as the use of the tug dispenses with the necessity of a pilot
to bring the vessel into the harbor and take her to her dock; and by
such analogy ought undoubtedly to be subordinate to the seamen's wages.
The court must take notice of the fact, that by the introduction of
steam even sailing vessels have become largely dependent upon tugs and
towing vessels to take them into and out of harbors; and this is
specially necessary in a harbor like that of this city where there are
long devious channels which can only be threaded by the aid of a tug,
or the almost impracticable means of warping.
=4. Duty of Tug.=--The tug is not a carrier as to the tow but only a
bailee. This means that it is not liable for accidents except as it is
proved to have been negligent or wanting in ordinary care. While the
relation depends on contract, the obligations are mostly those implied
by law from the relations of the parties although they may vary them as
they please by express agreement. In general, the tug engages to make
the trip or voyage without delay or deviation or undue peril; to be
sufficiently equipped and manned and in all respects seaworthy; to
exercise reasonable diligence and the ordinary skill of the profession;
in case of storm or danger, to protect the tow, by seeking a port of
refuge, or slowing, stopping, sounding, and otherwise exercising due
care, until the occasion subsides. She is, however, only bound to do
what is consistent with her own safety and may, therefore, abandon the
tow when circumstances of great peril require it. The tug is bound to
see that the tow is properly made up for the proposed voyage; to know
the sailing qualities of the vessels in charge and the character of the
waters, currents, harbors and shoals before them.
If the tow furnishes its own hawsers or towing lines, it must see to it
that they are sufficient for all the purposes of the voyage and that
they are properly fastened on board. There is an implied representation
of seaworthiness in offering a vessel to be towed and the tug has the
right to assume that the ship is sufficiently staunch and equipped for
the voyage proposed. Thus in the case of the Syracuse, 18 Fed. 828, it
was said that:
Justice requires that the continued running of old boats should be
closely scrutinized and their owners should not be suffered to conceal
their infirm condition, and, when accidents happen, get them repaired
or recover as for a total loss, at the expense of others. The owner is
bound to give notice of any infirmity about his boat. If she be not
staunch and strong; and where this is not done he must be held jointly
or solely responsible for such injuries as the present; according to
the other circumstances of the case.
The tow must not be overloaded or improperly steered. The obligations of
the contract are largely mutual and correlative for generally the tow is
largely under the control of her own company and the tug is furnishing
motive power and guidance only. Each party to the contract is bound to
do its part towards completing it and each vessel involved must use
proper skill and diligence in performing its part. The tow is not
insured against damage because the tug has taken it in charge. It must
not create unnecessary risk, or increase any perils by neglect or
mismanagement. The obligations of good seamanship remain on the tow and
it is bound to be vigilant and prompt in meeting them. In illustration
of these principles one or two cases may be noticed: In the Marie
Palmer, 191 Fed. 79, the four-masted schooner _Marie_ _Palmer_, bound
from a northern port to Savannah with cargo, encountered heavy weather
off Cape Hatteras and put into a North Carolina port, where it was found
by a board of survey that she was leaking but could proceed under tow,
and the tug _Edgar F. Coney_ was employed to take her to Savannah for an
agreed price. The vessels started on a clear day with a light breeze and
had proceeded 85 miles when, shortly after dark, the schooner stranded
on Frying Pan Shoals and became a total loss. The schooner, shortly
prior to stranding, asked the tug if they were not too far in shore, but
was answered in the negative. The navigator mistook the Cape Fear light
for a gas buoy shown on the chart, although the two were entirely
different in height and character, and were fourteen miles apart. There
was a deviation in the tug's compass and the card for its correction was
not at hand. The master of the schooner libeled the tug. The Court said:
Now it is true that under a contract of towage, the owner of the vessel
towing does not insure against marine perils. It is true, however, that
he must obey the law, and, in the protection of the life and property
intrusted to his sole control, he must exercise that degree of caution
and skill which navigators of prudence usually employ in such service.
He is held bound to know the waters, the channels, well-defined
currents, and such well-defined shoals as have been for a sufficient
length of time marked by the government, and all other dangers known
generally to men experienced in navigation; and he is bound to exercise
such skill and knowledge for the protection of her tow....
It is true that, under ordinary circumstances, damage to a vessel while
being towed raises no presumption of fault on the part of the vessel
towing; but, where the evidence preponderates to show such negligence,
it may be found to exist, although no presumption is allowed in favor
of the tow. It has, however, been held by the Supreme Court of the
United States in the Webb, 14 Wall. 406, that under certain
circumstances, if a ship is towed upon a shoal, that the fact of
stranding at such place would, in the absence of explanation "be almost
conclusive evidence of unskillfulness or carelessness in the navigation
of the tug. The place where the injury occurred would be considered in
connection with the injury itself, and together they would very
satisfactorily show a breach of the contract, if no excuse were given.
At least they would be sufficient to cast upon the claimants of the tug
the burden of establishing some excuse for the deviation from the usual
and proper course."
* * * * *
In the case now under consideration the compass of the tug was
inaccurate. The card showing the deviation was not kept before the
helmsman. The course was plainly marked and widely known. The tug and
tow starting early in the morning proceeded, until the stranding, but
85 miles only. Frying Pan Shoals is not less widely known than any
other on the coast. The captain of the tug, Myers, laid the course, as
he testifies, for the buoy. He might have passed it in safety anywhere
within a mile to the landward, and, in a practical sense, anywhere to
the seaward. He wrecked his tow 4-1/2 miles to the landward of the
buoy, and 13-1/2 miles from the Cape Fear Light, which he may have
mistaken for the buoy. There was no sudden exigency to divert the
judgment. There was abounding opportunity to take the bearings of the
lights, and to make soundings. The stranding itself occurred shortly
after dark only, in the evening of a clear day, and shortly after the
master of the tug had received from the master of the tow urgent and
explicit warning of the danger. If under these conditions, as we find
them to exist, there is no liability on the tug, which in obedience to
the official finding of the surveyors was voluntarily towing the
schooner to her port of destination for the agreed-upon compensation, a
case which would warrant a finding of liability for similar service or
any default seems wholly inconceivable.
In the case of the tug Quickstep, 9 Wall. 665, the owner of the canal
boat _Citizen_ filed a libel _in rem_ against the tug, alleging that the
tug attempted to tow too many loaded boats and in consequence of which
one of the boats broke loose, and the tug while backing in an attempt to
pick her up collided with and sank the _Citizen_.
The inquiry is: Who is to blame for this? Clearly not the _Citizen_,
for it does not appear that her conduct in any way contributed to the
accident. If the tug, in constructing the tow, used the lines furnished
by the different boats, yet as each boat was independent of the other,
no responsibility can attach to either for the breaking of the line,
which she did not provide, and had nothing to do with making fast. In
this case neither the bridle line nor the line that first parted were
supplied by the _Citizen_, and she ought not to suffer for their
insufficiency. It is well settled that canal-boats and barges in tow
are considered as being under the control of the tug, and the latter is
liable for this collision, unless she can show it was not occasioned by
her fault.
It was the duty of the tug, as the captains of the canal-boats had no
voice in making up the tow, to see that it was properly constructed,
and that the lines were sufficient and securely fastened. This was an
equal duty, whether she furnished the lines to the boats, or the boats
to her. In the nature of the employment, her officers could tell better
than the men on the boats what sort of a line was required to secure
the boats together, and to keep them in their positions. If she failed
in this duty she was guilty of a maritime fault. The parting of the
line connecting the boat in the rear on the port side with the fleet,
was the commencement of the difficulty that led to this accident. In
the effort to recover this boat, the consequences followed which
produced the collision. If it was good seamanship on the part of the
captain of the tug to back in such an emergency, he was required,
before undertaking it, at least to know that his bridle line would
hold. And if the sea was in the condition the captain of the tug says
it was, it was bad management to back at all. Whether this be so or
not, he was bound, in executing a maneuver to recover the detached
boat, to look to it that no other boat in the fleet suffered in
consequence of it.
A tug is not required to subject herself to damage in order to protect
her tow. An illustration of this is found in the case of the Mosher, 17
Fed. Cas. No. 9874, from which the following is quoted:
The schooner _Nicaragua_, owned by libellants, on the 6th of August
having encountered a heavy wind and high sea, which continued during
the day, came to anchor, and shortly after, the tug _Mosher_ took her
in tow. The schooner furnished the tow line. The first broke; a second
bore the strain. The vessel in the act of being towed into the harbor
was stranded and ultimately lost. Is the tug responsible for this loss?
It is charged that the accident happened through the negligence and
want of care of the officers of the tug, and that, at any rate, the
disaster would not have been so ruinous, if these officers had used
proper efforts to relieve the _Nicaragua_. The first question is, what
degree of diligence and skill was required of the tug? The rule is well
settled that reasonable diligence and ordinary skill is the measure of
the tug's duty. The tug did not engage to insure the safety of the tow,
nor for the use of the highest nautical skill. I think Judge Drummond
stated the rule fairly, that the tug is bound to know the ordinary and
proper channel into the harbor and to exercise reasonable skill under
the circumstances, in towing the vessel.
* * * * *
Like the district judge, I do not wish to relax the need of caution of
tugs in towing vessels nor establish harsh rules to make them insurers
of property.
* * * * *
In what respect did the _Mosher_ show less diligence and skill than
required? The schooner having taken the chances of entering the harbor
in a storm, the tug is not to be held responsible, in the absence of
proof of negligence, if the schooner touched some ridge of sand. It is
urged that she went aground on the old sand-bar. Although satisfied
that she was ultimately wrecked there, I am not satisfied she first
struck there. The winds and waves drove her south, and the probability
is that her first position was changed.
But the tug is blamed for not using more effort than she did to get the
schooner off the bar; in other words, is charged with fault in
abandoning the schooner too soon. It is hard to get at the truth for
the witnesses on each vessel differ materially in their account of what
occurred. At the argument it did seem to me that the tug left the
schooner to her fate sooner than she ought to have done, but since
reading the testimony, I cannot say that she did not employ all the
means practicable and consistent with her own safety. The captain of
the tug was not obliged to stay by the schooner if in good faith he
believed he would endanger his own vessel. On both points he is
supported by the testimony. I think the decree dismissing the libel
should be affirmed.
=5. Duty of Tow.=--The vessels in tow must be properly manned and
equipped and carefully follow the tug. They must be vigilant to observe
all orders and signals. They must be ready, in case of emergencies, to
cast loose from the tug and each other, if thereby collision or
stranding may be avoided.
In the Marie Palmer, 191 Fed. 79, above cited, the tug defended the suit
brought by the schooner on the ground that the schooner was unseaworthy
when taken in tow. The unseaworthy condition of a tow is a good defense
to such a suit if that fact be concealed from the tug, but not where the
condition of the tow is known to the tug.
Equally ineffective is the plea that the master of the tug did not know
the extremities to which the schooner had been reduced before he
undertook the towage service. The _Palmer_ was found storm bound, at
anchor, in Lookout Bight. Had she been entirely seaworthy under her
sail power, the contract to tow her would have been superfluous. These
facts were known to the master of the tug. But, if this were not
sufficient, that officer must have taken notice of the vital fact that
her storm tossed condition had been passed upon by an official board of
survey, and that body, after careful examination, had found that she
might proceed with her voyage under tow. It was optional with the
captain of the tow boat to accept that finding, and take the tow.
Certainly it put him upon notice of inquiry, and he did not hesitate to
take the tow as in the condition in which the board of survey found her.
=6. Negligence.=--The tug is liable for negligence only, apart from the
terms of any special contract, and then only for such negligence as is
the proximate cause of the loss. Negligence is the failure to observe
the rules of navigation or to employ the requisite degree of care and
skill of competent mariners in like situations. The burden of proving
negligence usually rests upon the party charging it but towage
sufficiently resembles the contract of carriage as frequently to present
cases in which the mere happening of an accident to the tow creates a
presumption of negligence on the part of the tug. Thus the pleadings
themselves may require the tug to explain the disaster and prove that
she was not at fault. This presumption has been applied where the tow is
stranded off its proper course in calm weather; or where the tug has
grounded the tow while proceeding through a fog at full speed without
soundings; or where the tow has been brought into collision with an
anchored vessel; or where the accident occurs in a customary channel; or
where the tug's steering gear and equipment prove insufficient; or where
the tow strikes a known obstruction to navigation.
The case of the _Marie Palmer_, heretofore cited, is an example of
negligence on the part of the tug.
Where, from the negligent operation of a tug, damage is inflicted by a
tow, although the tug herself does no damage, a maritime lien for tort
arises against the tug and not against the tow. In the Clara Clarita, 23
Wall. 1, the tug engaged and undertook to tow a burning vessel from her
berth to a point where it was intended to beach her. While in tow the
flames burst through the deck of the burning vessel and severed the
hawser by which she was attached to the tug, causing her to drift upon
and set fire to the libellant's schooner. Although the tug was far away
when the damage was done, the court held her to be in fault because
under the circumstances the burning of the hawser ought to have been
foreseen and the owners of the damaged schooner were held to be entitled
to a maritime lien upon the tug for the damage suffered. It was also
held that the tug alone and not the owners of the burned tow should
respond in damages. A tug is held not to be the agent of her tow but to
occupy the position of an independent contractor. The Court said:
By employing a tug to transport their vessel from one place to another
the owners of the tow do not necessarily constitute the master and crew
of the tug their agents in performing the services, as they neither
appoint the master of the tug nor employ the crew, nor can they
displace either one or the other. Their contract for the service, even
though it was negotiated with the master of the tug, is, in legal
contemplation, made with the owners of the vessel employed; and the
master of the tug continues to be the agent of the owners of his own
vessel, and they are responsible for his acts in her navigation and
management.
On the other hand cases may arise in which the tow alone and not the tug
is liable for injury to a third vessel or person. Thus in Albina Ferry
Co. _v._ Imperial and S. G. Reed, 38 Fed. 614, the tug _S. G. Reed_ had
in tow the ship _Imperial_. The ferry boat _Veto No. 2_ was operated on
a wire cable. The _Imperial_ struck the cable, causing the ferry boat to
sustain some damage. The tug was employed by the pilot of the _Imperial_
for the purpose of towing the vessel and at the time of the collision
was in the control and service of the ship. There was no evidence of any
fault on the part of the tug or of any one employed on her. The Court
said:
Under these circumstances the steamboat (i.e., tug) and the ship
constitute but one vessel and that vessel was the ship. The tug was the
mere servant of the tow, and both were under the control and direction
of the pilot in charge of the latter. Admitting for a moment that a
wrong has been committed, the owners of the _Imperial_, through their
agent, the pilot in charge, are the wrongdoers, and their vessel is
alone liable therefor. The owner of the _Reed_ did not participate in
the supposed wrong, neither by itself nor by its servants. As well say
that the wrong of a person who recklessly rides another down in a
public thoroughfare is the wrong of the liveryman from whom he hired
the horse.
It is not denied that there may be and have been cases in which both
tug and tow are liable for the damage sustained by a collision. But in
such case both participate in the management of the vessel, and the
negligence of misconduct causing the same.
A case in which both tug and tow were held liable is that of the Civilta
and the steam tug Restless, 13 Otto 699. In this case the tow had on
board a pilot and the tug was subject to his orders. The libellant's
schooner was struck by the hawser, then by the tow. The court said that
the tow and tug were, in law, one vessel, and the question was, which
one? It was held:
The tug furnished the motive power for herself and the ship. Both
vessels were under the general orders of the pilot on the ship, but it
is expressly found as a fact that the tug actually received no orders
from him. Being on the ship, which was two hundred seventy feet astern
of the tug, it is not to be presumed that he was to do more than direct
the general course to be taken by the ship in getting to her place of
destination. The details of the immediate navigation of the tug, with
reference to approaching vessels, must necessarily have been left to a
great extent to those on board of her. She was where she would
ordinarily see an object ahead before those on the ship could, and
having all the motive power of the combined vessels under her own
control, she was in a situation to act promptly and do what was
required under the circumstances.
* * * * *
We do not entertain a doubt that, situated as the tug was, in the
night, so far away from the ship, it was her duty to do what was
required by the law of a vessel under steam, to keep herself and the
ship out of the way of an approaching vessel, particularly if the pilot
of the ship did not assume actual control for the time being of the
navigation of the two vessels.
Such being the case, we think it clear both vessels were in fault.
A decree was accordingly given against both the ship and the tug and the
damage apportioned one-half to each with the provision that if either of
the vessels should prove insufficient to pay its share the residue might
be collected from the other.
=7. Liability for Damage.=--A. _As Between Tug and Tow._--If the
wrongful act or breach of contract of either tug or tow occasions damage
to the other, liability will follow and usually a maritime lien. The
owners of the tug have a lien upon the tow for the price of the towage
and the owners of the tow and its cargo have a lien upon the tug for
failure to perform the contract or damages sustained through negligence.
An example is found in the Cayuga, 16 Wall. 177. There the tug _Cayuga_
undertook a tow of thirty canal boats and barges from Albany to New
York. The tow was faultily made up by the tug, libellant's canal boat
being upwards of 1,000 feet astern of her. By reason of this faulty
make-up and of the method of navigation adopted by the tug, libellant's
canal boat was twice brought into collision with obstacles in the river,
the first time with a lighthouse and the second with a submerged rock.
The result of the second collision was the loss of the boat. The tug
defended on the ground that the canal boat was unseaworthy and that her
captain was negligent in cutting her loose from the tow immediately
after the second collision.
Even where a contract of towage specifically provides that the tow is
being conveyed at her own risk, the tug will be liable in admiralty if
through the tug's negligence the tow is injured. The contract will not
avail as a defense against negligence (The Syracuse, 12 Wall. 167).
In the case of the Wm. H. Webb, 14 Wall. 406, the owner of the steamship
_Shooting Star_ brought a libel _in rem_ against the tug _Wm. H. Webb_
for breach of contract to tow the _Shooting Star_ from Portsmouth to New
York, charging negligence and mismanagement in the towage, whereby the
tow was grounded on Tuckernuck Shoal, which was more than three miles
out of the proper course. The court held that the tug was negligent and,
therefore, liable. Mr. Justice Strong said:
It must be conceded that an engagement to tow does not impose either an
obligation to insure, or the liability of common carriers. The burden
is always upon him who alleges the breach of such a contract to show
either that there has been no attempt at performance, or that there has
been negligence or unskillfulness to his injury in the performance.
Unlike the case of common carriers, damage sustained by the tow does
not ordinarily raise a presumption that the tug has been in fault. The
contract requires no more than that he who undertakes to tow shall
carry out his undertaking with that degree of caution and skill which
prudent navigators usually employ in similar services.
The action for negligent performance of the towage contract may be
either against the tug or its owner by the owners or underwriters of the
injured property. The damages are those which naturally follow the
breach; if the tow and cargo are totally lost, the market value, at the
time and place of the loss, with interest, will be allowed as in cases
of loss by collision; if the loss is partial then the expenses of
repairs, with compensation for loss of use, or demurrage for the time
which the work of rescue and repair occupies. Where the tow is old and
unseaworthy, the admiralty sometimes apportions the damages. Where both
tug and tow are at fault the damages will be divided between them
according to the usual admiralty rule[23] (see the Civilta and the
Restless, 13 Otto 699, _supra_).
B. _To Third Parties._--Where a third party is damaged through the fault
of a tug or the vessel which she has in tow, the party damaged has a
right of action against the author of the injury. It is often said that
the tug and her tow constitute a single entity. This is true to the
extent that where through the negligent operation of the tug damage is
done to a third party by one of the vessels in tow, the responsibility
rests upon the tug, but responsibility in such cases will not ordinarily
attach to the vessel in tow. The tow may be liable in such a case, on
the theory that the tug is her agent, but if the tug occupies the status
of an independent contractor no liability rests upon the tow. We have
seen in the Clara Clarita, 23 Wall. 1, cited in § 5, _supra_, a case in
which a tug was held liable for damage by the tow and in which the tow
was held to be free from liability because the tug was not her agent. In
the case of Liverpool &c. Navigation Co. _v._ Brooklyn Eastern Dist.
Terminal, decided December 8, 1919 (U. S. Supreme Court Advance Sheets,
85), a car float was lashed to the side of the steam tug _Intrepid_, and
through the negligent operation of the tug the float was driven into
collision with the S. S. _Vauban_, the tug, herself, not coming into
collision. It happened that the car float and tug belonged to the same
owner. It was held that the responsibility was that of the tug alone;
that she might limit her liability to her own value; that the float
belonged to the same owner made no difference, and the float accordingly
escaped liability. Mr. Justice Holmes said:
The car float was the vessel that came into contact with the _Vauban_,
but as it was a passive instrument in the hands of the _Intrepid_, that
fact does not affect the question of responsibility (citing numerous
cases).
These cases show that for the purposes of liability the passive
instrument of the harm does not become one with the actively
responsible vessel by being attached to it. If this were a proceeding
_in rem_ it may be assumed that the car float and disabled tug would
escape, and none the less that they were lashed to the _Intrepid_, and
so were more helplessly under its control than in the ordinary case of
a tow.
It is said, however, that when you come to limiting liability, the
foregoing authorities are not controlling,--that the object of the
statute is "to limit the liability of vessel owners to their interest
in the _adventure_," and that the same reason that requires the
surrender of boats and apparel requires the surrender of the other
instrumentalities by means of which the tug was rendering the services
for which it was paid. It can make no difference, it is argued, whether
the cargo is carried in the hold of the tug or is towed in another
vessel. But that is the question, and it is not answered by putting it.
The respondent answers the argument with the suggestion that, if sound,
it applies a different rule in actions _in personam_ from that which,
as we have said, governs suits _in rem_. Without dwelling upon that, we
are of opinion that the statute does not warrant the distinction for
which the petitioner contends.
In the case of Sturgis _v._ Boyer, 24 How. 110, the ship _Wisconsin_,
which was being towed by the tug _Hector_, collided with the lighter
_Republic_ in New York harbor. The owners of the lighter libeled both
the tug and the tow. The owner of the tug filed an answer, setting up
that the tug was merely the motive-power to move the ship to the pier,
that the tug and her crew were subject to and obeyed the orders of the
master and other officers in charge of the ship, and prayed that in case
the libellants should recover any sum against the ship and tug, that he,
the owner of the tug, might have decree over against the ship. The
owners of the ship admitted that she had a master and a full crew on
board, but alleged that they were all under the direction and control of
the master and officers of the tug. The Court was clearly of opinion
that a case of negligence was made out by the owners of the lighter, and
the only question in doubt was as to the relative responsibility of the
tug and vessel in tow.
Cases arise, undoubtedly, when both the tow and the tug are jointly
liable for the consequences of a collision; as when those in charge of
the respective vessels jointly participate in their control and
management, and the master or crew of both vessels are either deficient
in skill, omit to take due care, or are guilty of negligence in their
navigation. Other cases may well be imagined when the tow alone would
be responsible; as when the tug is employed by the master or owners of
the tow as the mere motive power to propel their vessels from one point
to another, and both vessels are exclusively under the control,
direction and management of the master and crew of the tow. Fault in
that state of the case cannot be imputed to the tug, provided she was
properly equipped and seaworthy for the business in which she was
engaged; and if she was the property of third persons, her owners
cannot be held responsible for the want of skill, negligence or
mismanagement of the master and crew of the other vessel, for the
reason that they are not the agents of the owners of the tug, and her
owners in the case supposed do not sustain towards those entrusted with
the navigation of the vessel the relation of the principal. But
whenever the tug, under the charge of her own master and crew, and in
the usual and ordinary course of such an employment, undertakes to
transport another vessel, which, for the time being, has neither her
master nor crew on board, from one point to another, over waters where
such accessory motive power is necessary or usually employed, she must
be held responsible for the proper navigation of both vessels; and
third persons suffering damage through the fault of those in charge of
the vessels must, under such circumstances, look to the tug, her master
or owners, for the recompense which they are entitled to claim for any
injuries that vessels or cargo may receive by such means. Assuming that
the tug is a suitable vessel, properly manned and equipped for the
undertaking, so that no degree of negligence can attach to the owners
of the tow, on the ground that the motive power employed by them was in
an unseaworthy condition, and the tow, under the circumstances
supposed, is no more responsible for the consequences of a collision
than so much freight; and it is not perceived that it can make any
difference in that behalf, that a part, or even the whole of the
officers and crew of the tow are on board, provided it clearly appears
that the tug was a seaworthy vessel, properly manned and equipped for
the enterprise, and from the nature of the undertaking, and the usual
course of conducting it, the master and crew of the tow were not
expected to participate in the navigation of the vessel, and were not
guilty of any negligence or omission of duty by refraining from such
participation.
* * * * *
Unless the owner and the person or persons in charge of the vessel in
some way sustain towards each other the relation of principal and
agent, the injured party cannot have his remedy against the colliding
vessel. By employing a tug to transport their vessel from one point to
another, the owners of the tow do not necessarily constitute the master
and crew of the tug their agents in performing the service. They
neither appoint the master of the tug, or ship the crew; nor can they
displace either one or the other. Their contract for the service, even
though it was negotiated with the master, is, in legal contemplation,
made with the owners of the vessel, and the master of the tug,
notwithstanding the contract was negotiated with him, continues to be
the agent of the owners of his own vessel, and they are responsible for
his acts in her navigation.
* * * * *
Whether the party charged ought to be held liable, is made to depend,
in all cases of this description, upon his relation to the wrongdoer.
If the wrongful act was done by himself, or was occasioned by his
negligence, of course he is liable, and he is equally so, if it was
done by one towards whom he bore relation of principal; but liability
ceases where the relation itself entirely ceases to exist, unless the
wrongful act was performed or occasioned by the party charged.
* * * * *
Applying these principles to the present case, it is obvious what the
result must be. Without repeating the testimony, it will be sufficient
to say, that it clearly appears in this case that those in charge of
the steam tug had the exclusive control, direction and management of
both vessels, and there is not a word of proof in the record, either
that the tug was not a suitable vessel to perform the service for which
she was employed, or that any one belonging to the ship either
participated in the navigation, or was guilty of any degree of
negligence whatever in the premises.
=8. Pilots.=--There are port and sea pilots, the latter being a name for
those of her officers who navigate the ship at sea and the former
meaning those who take the ship in and out of harbor. Port or coast
pilots are a class by themselves, exercising an office of great
importance, and usually regulated by law. This is the class referred to
in U. S. Comp. St. 1916, § 7981, where it is enacted that "until further
provision is made by Congress, all pilots in the bays, inlets, rivers,
harbors, and ports of the United States shall continue to be regulated
in conformity with the existing laws of the States respectively wherein
such pilots may be, or with such laws as the States may respectively
enact for the purpose." The former class, or sea pilots, are dealt with
by Congress in §§ 8204, 8205, 8206, 8207, 8208, etc., of the same
volume. The several states may, therefore, regulate and license port
pilots, that is, the class whose employment is to guide vessels in and
out of their respective ports. They may make it a criminal offense for a
pilot not duly qualified under their laws to take a vessel through their
waters and make all requisite provisions in regard to qualifications,
fees and licenses, so long as Congress refrains from further legislation
on the subject. Most of the States on the seaboard have such statutes,
different somewhat in detail but generally similar in effect. Ships are
not absolutely bound to accept the services of such pilots but must pay
their fees, in whole or in part, if services are tendered and declined.
=9. Duties.=--The pilot is the servant of the owner, if voluntarily
employed, otherwise not. Like other persons, he is answerable for any
damage he may cause by negligence or default. Occupying a quasi-public
position and the ship not being free to decline his services, it is his
duty to render his services, when requested, to the best of his ability.
If he refuses, he may be liable both civilly and criminally. The ancient
sea-laws were stringent in this regard; the Laws of Oléron, for example,
provide that if disaster is sustained by the ignorance of the pilot, he
shall be obliged to make full satisfaction therefor, and, if he has not
wherewith to make satisfaction, the master, or any one of the mariners
or merchants may cut off his head and shall not be bound to answer for
it. When a pilot takes charge of a vessel at sea, it is his duty to stay
by her, unless discharged, until she reaches her destination or some
place of safety. He is held to be able to anticipate the action of the
wind and sea on boats in his charge. He must be thoroughly familiar with
the topography and character of the waters for which he offers his
services, and keep acquainted with all changes therein, both as to fixed
and temporary landmarks and also as to the character of the bottom and
presence of temporary obstructions therein.
=10. Authority.=--While a pilot is on board he has absolute and
exclusive authority in the absence of the master, and, probably, ranks
the master when he is present. The authorities are not plain or
satisfactory on this point, but there ought not to be any divided
authority, particularly in such navigation as that for which the law
requires the employment of a pilot. Unless the master retains, or
reassumes, charge of the ship, the pilot has exclusive control and all
are bound to obey his orders; he is an officer of the ship within the
meaning of the statutes in regard to revolts and mutinies. But the
master's authority is not annulled and it would be his duty to interfere
in case of gross ignorance or palpable mistake on the part of the pilot.
Thus, in the case of the China, 7 Wall. 53, where the pilot was employed
under a compulsory pilot law, the Court said:
It is the duty of the master to interfere in cases of the pilot's
intoxication or manifest incapacity, in cases of danger which he does
not foresee, and in all cases of great necessity. The master has the
same power to displace the pilot that he has to remove any subordinate
officer of the vessel. He may exercise it or not, according to his
discretion.
In Ralli _v._ Troop, 157 U. S. 386, Justice Gray said:
To the pilot, therefore, temporarily belongs the whole conduct of the
navigation of the ship, including the duty of determining her course
and speed, and the time, place and manner of anchoring her. But the
master still has the duty of seeing to the safety of the ship, and to
the proper stowage of the cargo. For instance, the duty to keep a good
lookout rests upon the master and crew. And it has been held by Dr.
Lushington, in the English High Court of Admiralty, that, although a
pilot is in charge, the trim of the ship is within the province of the
master; as well as the duty, if two vessels entangled together, to cut
away part of the rigging of his vessel, when necessary, in order to
avoid a collision, or to lessen its effect, because the vessel, the
judge said, "was not under orders of the pilot for this purpose; she
was only under the pilot's directions for the purpose of navigation;
and the master, in a case of this description, is not to wait for the
pilot's directions, which would tend to create great confusion and
delay."
=11. Compensation.=--Compensation of pilots is largely regulated by
local statutes and where their employment is compulsory, an offer of
service, if declined, will nevertheless create a liability for full or
partial fees against the vessel. If no fees are fixed by local law, the
amount will be measured by what is customary or fair and reasonable. By
the general maritime law, the pilot has a lien upon the ship for
services rendered which is of high rank and priority (but is junior to a
"preferred mortgage given on an American ship pursuant to the Merchant
Marine Act of 1920", see Appendix). By acting as master, he may waive his
lien as pilot in those cases where there is no lien for a master's
services; and, correspondingly, one who is engaged and ships as a pilot
of a vessel, whereon another stands as registered master, has a lien on
the boat for his wages although he may be in entire charge of her
navigation.
=12. Negligence.=--The pilot is considered as the master for the time
being and is answerable for any loss or injury caused by his want of
skill. Such negligence may consist in lack of knowledge of the locality
or failure to handle the ship with ordinary care. In general he must
exercise the ordinary care and skill of his profession and failure so to
do will render him liable for negligence. Harbor pilots, for example,
are selected for their personal knowledge of the topography through
which they take the ship and are deemed to know all its landmarks,
channels, courses, constructions and local regulations. All these they
must know and remember and observe. They must be expert in their
business and each must furnish the same degree of care and skill
commonly possessed by others in the same vocation. Thus pilots have been
held liable for running a vessel against a pier freshly built into the
channel; for failing to appreciate the significance of fixed lights; for
towing in a gale; for hugging the shore on a dark night; they are
answerable for the safety of the property in their charge and, in the
event of damage or loss, will be released from liability only by showing
that the causes were beyond their control, as by proving due care and
skill or that the cause was an act of God or unavoidable emergency.
Where a vessel in his charge is brought into collision and pays, either
under a decree or through a reasonable settlement, the damages arising
therefrom, the pilot may be held liable over to her owners for what they
have been so compelled to pay. But members of pilots' associations are
not jointly liable for the negligence of their members even if their
earnings go into a common fund.
A case illustrative of the duties and responsibilities of a pilot is
that of Wilson _v._ Charleston Pilots' Association, 57 Fed. 227. The
master of the schooner _Kate Aitken_, which was in Charleston harbor and
was about to go to sea in tow of the tug _Relief_, applied to the
Association for a pilot, and Mr. Bringloe was assigned to him. When the
pilot boarded the schooner he asked the master whether he preferred the
pilot to be on the tug or on the schooner. It was the custom to put the
pilot on the tug, unless the master wished otherwise. The master
expressed his preference that the pilot should be on the tug. The Court
remarked in passing "that if disaster occur because the pilot is on the
wrong boat he cannot excuse himself by reason of any preference of the
master. He is employed because of his supposed knowledge of all that is
necessary to take a vessel to sea." The pilot took his place on the tug
and gave direction with regard to the position of the hawser. He took
his position on the top of the house and constantly directed the
movements of both tug and schooner. Nevertheless the schooner went
aground. The Court said:
Is the pilot responsible in damages for this accident? He was in
control of the movements of the tug and of the tow. He was charged with
the safety of the schooner, and of all that she carried, being bound to
use due diligence and care and reasonable skill in the exercise of his
important functions. He is answerable if the schooner suffered damage
through his default, negligence, or want of skill, while her helm was
under his control. He was not an insurer, and is only chargeable for
negligence if he fail in due knowledge, care, or skill in avoiding
obstructions known or which should have been known to him. If he used
his best judgment and skill in avoiding known dangers, he cannot be
held liable, although the result may show that his judgment was wrong.
"It is settled that if the occupation be one requiring skill, the
failure to exert that needful skill, either because it is not possessed
or from inattention, is gross negligence." Curtis, J., in the New World
_v._ King, 16 How. (U. S.) 469. An eminent text writer, whose name is
authority, lays down the principle:
"Every man who offers his services to another, and is employed, assumes
to exercise in the employment such skill as he possesses with a
reasonable degree of diligence. In all these employments where peculiar
skill is requisite, if one offer his services, he is understood as
holding himself out to the public as possessing the degree of skill
commonly possessed by others in the same employment, and if his
pretensions are unfounded he commits a species of fraud on every man
who employs him in reliance on his public profession. But no man,
whether skilled or unskilled, undertakes that the task he assumes shall
be performed successfully and without fault or error. He undertakes for
good faith and integrity, but not for infallibility; and he is liable
to his employer for negligence, bad faith, or dishonesty, but not for
losses consequent on mere error of judgment."
This is the law of this case.
* * * * *
There is a total absence of evidence tending to show want of knowledge,
want of care, or want of skill, or bad faith, except the fact of the
accident itself. This is not a case in which the fact of the accident
is conclusive of the cause. If the grounding arose from the act of the
pilot, it was by an error of judgment. The distinction between an error
of judgment and negligence is not easily determined. It would seem,
however, that if one assuming a responsibility as an expert possesses a
knowledge of facts and circumstances connected with the duty he is
about to perform, and if he brings to bear all his professional
experience and skill, weighs these facts and circumstances, and decides
upon a course of action which he faithfully attempts to carry out, the
want of success, if due to such course of action, would be attributed
to error of judgment, and not to negligence. But if he omits to inform
himself as to facts and circumstances, or does not possess the
knowledge, experience, or skill which he professes, then, if failure is
caused thereby, this would be negligence. But it does not appear that
the accident was occasioned by an error of judgment on the part of the
pilot.
=13. Liability of the Ship.=--The ship will be liable for damage done
while in charge of a pilot unless there is a special exemption by local
law.
Where the law requires the ship to take a pilot on board and to
surrender the navigation of the ship to him, the master and owners are
exempt from responsibility for damages resulting from the mismanagement
of the pilot. The reason is this: The laws which establish such
compulsory pilotage are intended to secure, as far as possible,
protection to life and property, by supplying a class of men better
qualified than ordinary mariners to take charge of ships where
navigation is attended with unusual difficulty on account of local
conditions; the master, however well qualified, is compelled under
penalty to abdicate his authority in favor of the pilot, and, if so, it
is unjust that either he, or the owner, should be personally answerable
for the errors of an official in whose selection he had no choice. The
responsibility of an owner for the acts of his servant rests upon the
presumption that the owner chooses the servant and gives him orders
which he is bound to obey and that responsibility ceases when the law
supplants the owner's choice. Therefore neither the master nor the owner
can be successfully sued at common law, or personally in the admiralty,
for damage done by a compulsory pilot. This was held on a full
consideration of the American and English authorities by Justice Gray in
Transportation Co. _v._ La Compagnie Générale Transatlantique, 182 U. S.
406, which is very instructive in this connection.
The ship, however, is liable for such damage, although in charge of a
compulsory pilot. The reason is this: By American admiralty law, the
ship is treated as a personality for many purposes and, in whosesoever
hands she may lawfully be, is treated as the actual wrongdoer,
irrespective of any question of agency or employment. Thus, in this
country, the ship by whose fault a collision has occurred may be sued
directly, although in charge of a compulsory pilot at the time the
disaster occurred. In England the rule is different and the ship is not
liable if the owner could not be sued. The leading American case on this
point is that of the China, 7 Wall. 53. The _China_, while under the
control of a compulsory pilot, was in collision with the brig
_Kentucky_, which was wholly free from blame. On a review of the English
and American authorities the Court (Swayne, J.) held:
The services of the pilot are as much for the benefit of the vessel and
cargo as those of the captain and crew. His compensation comes from the
same source as theirs. Like them he serves the owner and is paid by the
owner. If there be any default on his part, the owner has the same
remedies against him as against other delinquents on board. The
difference between his relations and those of the master is one rather
of form than substance.
* * * * *
The maxim of the civil law--_sic utere tuo ut alienum non laedas_--may,
however, be fitly applied in such cases as the one before us. The
remedy of the damaged vessel, if confined to the culpable pilot, would
frequently be a mere delusion. He would often be unable to respond by
payment--especially if the amount recovered were large. Thus, where the
injury was the greatest there would be the greatest danger of a failure
of justice. According to the admiralty law, the collision impresses
upon the wrong-doing vessel a maritime lien. This the vessel carries
with it into whosesoever hands it may come. It is inchoate at the
moment of the wrong and must be perfected by subsequent proceedings.
Unlike a common law lien, possession is not necessary to its validity.
It is rather in the nature of the hypothecation of the civil law. It is
not indelible, but may be lost by laches or other circumstances.
The proposition of the appellants would blot out this important feature
of the maritime code, and greatly impair the efficacy of the system.
The appellees are seeking the fruit of their lien. All port regulations
are compulsory. The provisions of the statute of New York are a part of
a series within that category. A damaging vessel is no more excused
because she was compelled to obey one than another. The only question
in all such cases is, was she in fault? The appellants were bound to
know the law. They cannot plead ignorance. The law of the place makes
them liable. This ship was brought voluntarily within the sphere of its
operation, and they cannot complain because it throws the loss upon
them rather than upon the owners of the innocent vessel. We think the
rule which works this result is a wise and salutary one, and we feel no
disposition to disturb it.
REFERENCES FOR GENERAL READING
_Admiralty_, Hughes, 117-124; 28-38.
_Admiralty Reports_, Brown, Williams, 208.
Sturgis _v._ Boyer, 24 How. 110.
_Collisions_, Marsden, Chapter VIII.
Webb, 14 Wall. 406.
[23] See § 9, Chapter XI, _supra_.
CHAPTER XIII
SALVAGE AND GENERAL AVERAGE
=1. Definitions.=--Salvage may be defined as a legal liability which is
created by the rescue of maritime property from perils of the sea. It
may be quite independent of contract or agreement and these do not
affect its nature. The word also designates the reward or compensation
for the rescue and, sometimes, the property which is saved. Its
essentials are maritime property in peril and a voluntary successful
effort to save it. From the standpoint of the owner of the property, it
is the price of safety.
The ingredients of a salvage service are, first, enterprise in the
salvors in going out in tempestuous weather to assist a vessel in
distress, risking their own lives to save their fellow-creatures, and
to rescue the property of their fellow-subjects; secondly, the degree
of danger and distress from which the property is rescued--whether it
were in imminent peril, and almost certain to be lost if not at the
time rescued and preserved; thirdly, the degree of labor and skill
which the salvors incur and display, and the time occupied. Lastly, the
value. Where all these circumstances concur, a large and liberal reward
ought to be given; but where none, or scarcely any take place, the
compensation can hardly be denominated a salvage compensation: it is
little more than a remuneration _pro opere et labore_ (The Clifton, 3
Hagg. Adm. 14, 48 [_quoted_ with approval in Cope _v._ Drydock Co., 119
U. S. 625]).
General Average is also the price of safety under different
circumstances. It is the contribution required of the parties interested
in a maritime venture to compensate the sacrifice of a part for the
safety of the rest. The typical instance is the jettison of cargo in
order that the ship may be saved; the loss is equalized by a general
average.
=2. What May Be Salved.=--The subject of salvage can only be vessels and
property that is or has been on board a vessel. In Chapter I § 4, there
is some discussion of what constitutes a ship within the meaning of the
law. In Cope _v._ Drydock Co., 119 U. S. 625, salvage was claimed
rescuing a floating drydock, which had been in collision with a
steamship and was on the point of sinking. The Court held that the
service performed was not salvage because the drydock was not a vessel
and not a salvable thing. Justice Bradley said that a dock, though
floating, was not used for the purpose of navigation and that "no
structure that is not a ship or vessel is a subject of salvage," adding:
A ship or vessel, used for navigation and commerce, though lying at a
wharf, and temporarily made fast thereto, as well as her furniture and
cargo, are maritime subjects, and are capable of receiving salvage
service.
* * * * *
If we search through all the books, from the Rules of Oléron to the
present time, we shall find that salvage is only spoken of in relation
to ships and vessels and their cargoes, or those things which have been
committed to, or lost in, the sea or its branches, or other public
navigable waters, and have been found and rescued.
* * * * *
There has been some conflict of decision with respect to claims for
salvage service in rescuing goods lost at sea and found floating on the
surface or cast upon the shore. When they have belonged to a ship or
vessel as part of its furniture or cargo they clearly come under the
head of wreck, flotsam, jetsam, ligan, or derelict, and salvage may be
claimed upon them. But when they have no connection with a ship or
vessel some authorities are against the claim, and others are in favor
of it.
It was held by the Supreme Court of the United States (The Jefferson,
215 U. S. 130) that where a vessel, laid up in drydock in a shipyard for
repairs, was saved from destruction by a fire, which was raging in the
shipyard, by tug boats in the stream which played streams of water from
the stream upon the endangered vessel, it was a case of salvage. The
Court after remarking that a maritime lien for repairs existed against a
vessel in drydock, said:
There is no distinction between the continued control of admiralty over
a vessel when she is in a drydock for the purpose of being repaired,
and the subjection of the vessel when in a drydock for repairs to the
jurisdiction of a court of admiralty for the purpose of passing upon
claims for salvage services, by which it is asserted the vessel, while
in the dock, was saved from destruction.
=3. Salvor's Lien.=--Whoever performs a salvage service acquires a
maritime lien of the highest rank upon the property saved for this
compensation. This lien is quite independent of possession and will be
enforced by a court of admiralty by a proceeding _in rem_, i.e., against
the ship. Ordinarily it is the salvor's duty promptly to place the
property in possession of the court by libeling it for salvage at his
first opportunity for such an award as the court shall deem just. This
will usually be his only remedy, in the absence of an express contract.
There is no personal liability against the owner of the property saved
unless he requested performance of the service or received the property
with knowledge of the claim.
=4. Amount of Reward.=--The amount of salvage is usually regulated by
the value of the property saved and the value of that engaged in the
operation; the degree of risk or peril and the time and expense of the
salvors. The expenses of volunteer salvors cannot be recovered as such,
though the court may take them into consideration in fixing the amount
of the award.[24] Success is essential. There can be no salvage award
for the most meritorious efforts if unsuccessful. It is the policy of
the admiralty to stimulate efforts for the rescue of property in
distress by liberal rewards and also to discourage exorbitant demands
and inequitable behavior by correspondingly reducing them. In the case
of the Sandringham, 10 Fed. 556, the court listed the factors involved
in determining the amount to be awarded as salvage as follows:
(1) The degree of danger from which the lives or property are rescued.
(2) The value of the property saved.
(3) The risk incurred by the salvors.
(4) The value of the property employed by the salvors in the wrecking
enterprise, and the danger to which it was exposed.
(5) The skill shown in rendering the service.
(6) The time and labor occupied.
(7) The degree of success achieved, and the proportions of value lost
and saved.
Work of this nature is often performed by contract, by vessels and
corporations equipped and organized for the purpose. This fact does not
militate against their claims as salvors in proper cases but the courts
will not hesitate to modify the contract if they consider it unjust. The
case of the Leamington, 86 Fed. 675, contains a note giving many
instances of amounts awarded under various circumstances.[25]
As a general thing salvage is not allowed in an amount exceeding 50 per
cent of the value of the thing salved, although there are cases where as
high as 75 per cent has been allowed. There was an old rule, "50 per
cent for a derelict." This rule has been departed from in many cases.
The amount to be awarded lies largely in the sound discretion of the
trial court which takes into consideration all of the elements of labor,
risk, value, time, expense, and any other features that may enter into
the case. It is practically impossible to lay down rules for determining
the amount to be awarded. The books, however, say that the award should
not be so great that the salvage service becomes of no use to the owner
of the thing salved. For example if the charges and expenses of the
owner come to 50 per cent of the value of the thing salved, an award of
50 per cent will not be made to the salvors, no matter how perilous,
arduous and meritorious their work may have been to the owners.
Sometimes the award when computed on percentage of the value of the
salved property is very small, in some cases only about 4 per cent.
These are cases where the service performed was not extensive or highly
meritorious and the salvage property was of large value, so that the
amount of money received by the salvors was considerable, though the
percentage was small. The amount awarded to salvors is not always
calculated on the basis of a percentage or proportion of the value
salved; in many cases the trial court fixes a flat figure which it
thinks the service worth.
=5. Who May Be Salvors.=--Generally, any one not under obligation to
render the service, may rank as a salvor, and, conversely, those obliged
to work, cannot claim any reward. Sailors on the ship in peril cannot be
salvors until released from their engagement or an abandonment of the
ship. A passenger cannot earn salvage by mere labor on a vessel in
peril, for this is his duty, yet for extraordinary services he may have
a salvage award. Such was the case of the _Great Eastern_ when she had
been disabled by a gale and was lying helpless in the trough of the sea.
Among the passengers was a civil engineer who ingeniously devised and
after twenty-four hours' labor carried out a plan for steering her so
that she was able to make port. The court awarded him about $15,000. So,
in the _Fair American_, captured by a French privateer and in charge of
a prize-crew, her cook succeeded in recapturing and bringing her into
port by exertions outside his line of duty, and ranked as a salvor
accordingly.
A pilot acting within the line of his duty, however he may entitle
himself to extraordinary pilotage compensation as distinct from ordinary
pilotage for ordinary services, cannot be entitled to claim salvage, but
a pilot is not disabled from becoming a salvor if he performs salvage
services outside the scope of his duties. He stands in the same relation
to the property as any other salvor (Hobart _et al._ _v._ Drogan, 10
Peters 108).
=6. Distinction Between Towage and Salvage.=--Cases have frequently
arisen in which a vessel that has towed another into a place of safety
has claimed salvage for so doing. Whether or not the service rendered
amounts to salvage and entitles the towing vessel to a salvage reward,
or is mere towage to be recompensed as such, is sometimes difficult to
determine. There is no fixed guide. In the J. C. Pfluger, 109 Fed. 93,
the Court said:
If the vessel towed was by this means aided in escaping from a present
or prospective danger, the service will be regarded as one of salvage,
and the towage as merely an incident. If, upon the other hand, the
vessel thus assisted was not encompassed by any immediate or probable
future peril, such service will be treated as one of towage merely, and
compensated as such. It was said by Dr. Lushington (The Charlotte, 3 W.
Rob. Adm. 68) that, in order to constitute a salvage service, it is
"not necessary that the distress should be actual or immediate, or the
danger imminent and absolute; it is sufficient if, at the time the
assistance is rendered, the ship has encountered any damage or
misfortune which might possibly expose her to destruction if the
service were not rendered." In McConochie _v._ Kerr (D. C. 9 Fed. 50),
Judge Brown, in pointing out the distinction between a salvage and
towage service, said:
"A salvage service is a service which is voluntarily rendered to a
vessel needing assistance, and is designed to relieve her from some
distress or danger, either present or to be reasonably apprehended. A
towage service is one which is rendered for the mere purpose of
expediting her voyage, without reference to any circumstances of
danger."
In the case of the Emily B. Souder, 15 Blatch. 185, Fed. Cas. No.
4,458, Chief Justice Waite stated the law upon this point as follows:
"It is well settled that, if there is not actual or probable danger,
and the employment is simply for the purpose of expediting the voyage,
such service is towage and not salvage."
Under the plain and well-settled rule declared in the foregoing cases,
whether a particular service was one of salvage or towage is always a
question of fact to be ascertained from a consideration of the
circumstances under which the court shall find the service was
rendered; and, unless the evidence shows that the vessel towed was
thereby assisted in getting safely away from some actual or apprehended
peril, the case is not one in which salvage has been earned.
In the Reward, 1 W. Rob. 174, a distinguished English judge
laid it down that,
Mere towage service is confined to vessels that have received no injury
or damage; and mere towage reward is payable in those cases only where
the vessel receiving the service is in the same condition she would
ordinarily be in without having encountered any damage or accident.
=7. Distribution of Salvage Award.=--The rule of the admiralty is that
all who materially contribute to the rescue are entitled to share in the
award. Thus the master and crew of the salving vessel are entitled to
participate with the owner, according to their individual exertions and
success. The owner should not appropriate the whole unless the crew were
especially employed for the work. The court will frequently divide the
amount between the owner and the crew and apportion the share of the
latter in proportion to their wages. The principal element in
determining the owner's share is the value of the ship and the risk to
which it was exposed. Under special circumstances the cargo-owner may
also participate.
Where the salving vessel is a steamer the owners' share of the salvage
is larger and that of the crew proportionately smaller than if she were
a sailing vessel or other craft because of the superior efficiency of a
steamer in salvage work. Credit and compensation for the superior
character of the salving vessel must go to her owners. In Transportation
Co. _v._ Pearsall, 90 Fed. 435, there is a discussion of salvage
distribution. In that case three tugs, all belonging to the same owner,
had salved a steamer which had gone ashore. The owner of the tugs
affected a settlement with the owners of the steamer and received
$13,000 in full of all demands. A libel _in personam_ against the master
and owner of the tugs was brought by the engineer and fireman of the
third, each claiming a share of the $13,000. The court decided that the
owner of the tugs was entitled to two-thirds of the salvage award, and
ordered the remaining one-third to be distributed among the masters and
crews of the tugs proportionately, awarding the engineer $500 and the
other libellants $200 apiece, these awards being in proportion to their
wages. The court remarked that under the rule once prevailing in
admiralty the owners of the salving vessel could not receive more than
one-third of the award unless there were unusual circumstances of peril
to the salving vessel, that that rule had been modified in the direction
of greater liberality to steamships, citing cases in which the share of
the salving vessel had been fixed at three-fourths and even four-fifths.
The Court said:
An examination of the cases will show that there is no fixed rule with
regard to the proportion in the salvage award allotted to the owners of
the salving vessel. Most frequently salvage services are rendered upon
a voyage, in the absence of the owners, and when the salving vessel is
under the charge of, and is controlled by, the master and crew. As
salvage is awarded for the encouragement of promptness, energy,
efficiency, and heroic endeavor in saving life and property in peril,
the claims of the master and crew who exhibited these qualities must
meet the most favorable consideration. At the same time an allowance is
made for the owners whose property has been imperiled. But when the
owners direct the service, or when the peril encountered is chiefly
that of the salving vessel, with no proportionate peril to the crew, an
award to the owners is more liberal.
It was also said that the making of distribution in proportion to the
wages is a "just and uniform rule in all ordinary cases."
Where salvage is performed by successive sets of salvors,--for instance,
if one set of salvors gets a ship off a reef, and a second set takes her
into port--the award is apportioned between the two sets, special
consideration being shown to the first set of salvors because they made
the work of the second possible.
=8. Distribution of Liability for Payment.=--The vessel, cargo, and
freight money saved are to contribute to the payment of the salvage
award according to their relative values at the port of rescue. As
between the ship and cargo, each is liable for its own proportion alone.
The salvor cannot recover the entire salvage from either, but only the
proportion for which respondent is liable. As was said by Justice Story
in Stratton _v._ Jarvis, 8 Peters 4:
It is true that the salvage service was in one sense entire; but it
certainly cannot be deemed entire for the purpose of founding a right
against all the claimants jointly, so as to make them all jointly
responsible for the whole salvage. On the contrary, each claimant is
responsible only for the salvage properly due and chargeable on the
gross proceeds or sales of his own property _pro rata_. It would
otherwise follow that the property of one claimant might be made
chargeable with the payment of the whole salvage, which would be
against the clearest principles of law on this subject.
Where a ship is saved and unable to continue her voyage and carry out
her contracts of affreightment, the freight is one of the things of
value saved, but in determining the value of the freight saved for the
purpose of assessing a salvage award against it, "the freight to be
considered is only such proportion of the freight earned by the entire
voyage as the distance at which the salvage service was rendered from
the port of departure bears to the whole voyage." The Sandringham, 10
Fed. 556.
=9. Statutory Regulations.=--By the Act of August 1, 1912, (7 U. S. Comp
St. §§ 7990-7994) it is provided that the right to remuneration for
salvage services shall not be affected by the fact that the same person
owns both vessels; that the master must render assistance to every
person found at sea who is in danger of being lost, so far as he can do
so without serious danger to his own vessel, under penalty of not
exceeding one thousand dollars or imprisonment not exceeding two years,
or both; that salvors of human life are entitled to share in the award;
that salvage suits must be brought within two years; and that nothing in
the Act shall apply to ships of war or Government ships on public duty.
=10. Instances of Salvage Services.=--Where a fishing schooner on the
Atlantic picked up a floating body on which was a wallet containing a
considerable sum of money and promptly delivered the treasure to the
court, they were awarded one-half the amount, to be apportioned
one-third to the owners of the fishing vessel, one-third to the master
and one-third to the crew; the master's share was made somewhat larger
because he had resisted the proposal of some of the crew to merely
divide the coin and say nothing. The balance was turned over to the
public administrator of Massachusetts to hold for the benefit of the
unknown heirs, and, if they failed to appear, for further disposition
according to law (Gardner _v._ Gold coins, 111 Fed. 552). The Egyptian
obelisk, now in London and known as "Cleopatra's Needle," became the
subject of salvage services in the Bay of Biscay, during its voyage from
Alexandria and the award was two thousand pounds (see Dixon _v._
Whitworth, 4 Asp. M. L. C. 138, 327). In the Jefferson, 215 U. S. 130,
the vessel was in a drydock and threatened by a conflagration on
adjoining property; tugs stood by and played streams from their hose
upon her until the danger was past. The court overruled the argument
that the service could not be salvage because the vessel was not afloat
and directed an award. Where, however, a steamer had been swept high and
dry on the shore about a hundred feet above high-water mark and lay
there five years, the court declined to consider as salvage the plan and
work of floating her by dredging out a basin and canal for her
flotation; she had ceased to be engaged in commerce and navigation and
the contract was not maritime (Skinner, 248 Fed. 818). The doctrine of
this case will probably not be extended beyond its own facts. In the
Burlington, 73 Fed. 258, where the ship had been stranded to put out a
fire and lay as a menace to navigation while the owner and underwriters
were in dispute as to his right to abandon, and the salvor brought her
safely into port, he was awarded the entire value as salvage; while in
Murphy _v._ Dunham, 38 Fed. 503, where the salvor proceeded on the
erroneous idea that the cargo-owner's title is extinguished when his
property sinks, and salved it for his own use, he was only allowed his
expenses and narrowly escaped being assessed for the full value. The
Albany, 44 Fed. 431, is another instance of the persistence of the old
notion that title is acquired by finding property lost at sea; the ship
had stranded and the master was jettisoning a valuable cargo of package
freight; the countryside swarmed with wagons and lighters to appropriate
what could be obtained. The Court held the parties as for embezzlement
and said there was a medieval flavor about their conduct which recalled
to a student of maritime law the customs of the ancient Gauls, who not
only appropriated the cargoes of vessels wrecked on their coasts but
sold their crews into slavery or sacrificed them to their gods. The
Court quoted the following succinct statement of the nature of salvage
from Mr. Justice Story:
In cases of salvage, the party founds himself upon a meritorious
service, and upon an implied understanding that he brings before the
court, for its final award, all the property saved, with entire good
faith, and he asks a compensation for the restitution of it uninjured
and unembezzled by him. The merit is not in saving the property alone,
but it is in saving and restoring it to the owners. However meritorious
the act of saving may have been, if the property is subsequently lost,
and never reaches the owner, no compensation can be claimed or decreed.
=11. Distinction Between General and Particular Average.=--The former is
a partial loss, voluntarily incurred for common safety, and recompensed
by all benefited thereby; the latter is a partial loss involuntarily
caused, which must be borne by the party on whom it falls. One of the
most approved definitions of general average is,--"All loss which arises
in consequence of extraordinary sacrifices made, or expenses, incurred,
for the preservation of the ship and cargo, comes within general
average, and must be borne proportionately by all who are interested."
In the case of Barnard _v._ Adams, 10 How. (U. S.) 270, the ingredients
of general salvage were thus stated:
In order to constitute a case for general average, three things must
concur:
1st. A common danger; a danger in which the ship, cargo and crew all
participate; a danger imminent and apparently "inevitable," except by
voluntarily incurring the loss of a portion of the whole to save the
remainder.
2nd. There must be a voluntary jettison, _jactus_, or casting away, of
some portion of the joint concern for the purpose of avoiding this
imminent peril, _periculi imminentis evitandi causa_, or, in other
words, a transfer of the peril from the whole to a particular portion
of the whole.
3rd. This attempt to avoid the imminent common peril must be successful.
=12. Essential Elements.=--The rule expresses the plainest principles of
common justice but is confined to maritime law and within somewhat
precise limitations. The sacrifice for which contribution is sought must
be directed by the master of the ship or by his authority;[26] it must
be voluntary and for the safety of the entire venture;[27] it must be
necessary and successful;[28] and neither the party whose fault
occasioned the loss nor any outside of the interests represented in the
ship and cargo can have contribution.[29] Thus the scuttling of a ship
by order of port authorities to extinguish a fire in the hold is not
general average, although it would have been if done by order of the
master. If the vessel is stranded by force of wind or current, there is
no general average loss, while if the master deliberately puts her
ashore, choosing the locality to escape a greater danger, it will be
considered a case for general average by American law. Where the master
threw overboard a quantity of coin, not to save the ship and cargo, but
to prevent the money falling into enemy hands, it was not general
average although it would have been if his purpose had been to lighten
the ship in order to escape. Where the sacrifice is not necessary, in a
pecuniary sense, for the common safety, it is not allowed, as where a
vessel met a foundering emigrant ship and threw overboard part of its
cargo in order to take the passengers on board; this was not a general
average loss entitling the owner of the cargo to contribution. When the
sacrifice is unsuccessful there is no general average, as where the
master of a ship which was dragging her anchors cut away the masts to
prevent the drifting, but she finally went ashore; and where the cause
of the sacrifice is a fault of the ship or defect in the cargo,
contribution is denied; so also when a tug cuts the towline of her
barges in a storm to save herself from going ashore with them and
thereby saves herself.
=13. Instances of General Average.=--The classic example[30] is throwing
overboard (or, as it was called, jettisoning) a part of the cargo in
order to escape a storm. Thus if there is a ship worth $20,000, freight
list, $10,000, and cargo $70,000, of which X owns $30,000, Y $20,000,
and Z $20,000, and $10,000 of X's goods were jettisoned, each interest,
including X, will bear 10 per cent of the sacrifice; the ship pays X
$2,000; the freight list pays him $1,000; and Y and Z pay him $2,000
each; he receives $7,000 and stands $3,000 and so the sacrifice is
equally borne by all. Cargo may be burnt as fuel, or lost by a sale or
pledge to raise money to continue the voyage; a mast may be cut away to
lighten the ship or the engines injured by overwork to escape disaster
or expenses incurred by deviating to a port of refuge for repairs; cargo
may be warehoused or transshipped; salvage expenses may be incurred in
saving the venture from a stranding or sinking after a collision; and
all the various and multiform forms of loss sustained and expenses
incurred for common safety, within the definition, are made good by the
contribution of all.
Ordinarily a jettison of cargo carried on deck does not give rise to
general average, although deck cargo is not exempt from contributing its
share of the average for other cargo jettisoned for its safety. But deck
cargo will be entitled to participate in general average where the goods
are of such character as it is customary in the trade to carry on deck;
also where the other cargo-owners have expressly consented that it be
carried on deck; also usually in coasting and river voyages. The cases
excluding deck cargo from average have generally arisen out of sailing
vessels and it may be that the rule should be confined to sailing
vessels.
=14. The Adjustment.=--This ascertains the amount of the claim and the
respective shares of contribution. It is the duty of the master and
shipowner to see that timely steps are taken for this purpose.
After a voluntary sacrifice of part of the adventure, and a consequent
escape of the rest from imminent peril, the owner of the ship, or in
his absence, the master as his agent, has the duty of having an
adjustment made of the general average, and has a maritime lien on the
interests saved, and remaining in his possession, for the amount due in
contribution to the owner of the ship; and the owner of goods
sacrificed has a corresponding lien on what is saved, for the amount
due him (Ralli _v._ Troop, 157 U. S. 386).
The work is usually done by an adjuster and often requires a high degree
of professional skill. He determines what losses are to be adjusted,
what goods contribute, how the values of the receiving and contributory
interest are estimated, and when and where the adjustment should be
made. He must necessarily bring to this work a special acquaintance with
maritime law and the current decisions of the courts on the subject as
well as a practical acquaintance with the values involved and the
methods of business which they represent. He is, however, merely an
expert without any judicial authority and his work is subject to review
by the parties in interest. In practice, the shipowner places in his
hands the documents from which the necessary facts can be ascertained;
the protest of the master and mariners showing the circumstances under
which the sacrifice was made and the manifest of the cargo to show the
goods involved will be essential; in addition there may be the report of
surveyors as to the condition and value of the ship and other property
involved and such other evidence as the adjuster requires to have before
him, the valuations of hull, cargo, freight and all other items involved
in the contribution, excepting the wages of the master and crew, their
personal effects and the apparel, jewelry and baggage of the passengers.
[24] Teutonia _v._ Erlanger, 248 U. S. 521.
[25] See § 10, this title, _infra_.
[26] The reason is that the master "derives his authority from the
implied consent of all concerned in the common adventure" (The Hornet,
17 How. 100). "The character of agent respecting the cargo is thrown
upon the master by the policy of the law, acting on the necessity of the
circumstances in which he is placed" (The Gratitudine, 3 C. Rob.
Adm. 240).
[27] "Where the sacrifice, while for the general benefit of the whole
adventure, was also for the particular benefit of the cargo, it was not
a subject of general average" (The Mary, 1 Sprague 19).
[28] Expenses voluntarily and successfully incurred, or the necessary
consequences of resolution voluntarily and successfully taken, by a
person in charge of a sea adventure, for the safety of life, ship and
cargo, under the pressure of a danger of total loss or destruction
imminent and common to them, give, the ship being saved, a claim to
general average contribution (Abbott on Shipping, 537, note).
[29] Thus where a tug abandoned her tow in order to save the tug; the
owners of the tow were not entitled to general average contribution
because it was not a part of the ship or cargo.
[30] Probably the earliest recorded case is that mentioned in Jonah 1,
where cargo was jettisoned to lighten a ship in peril on a voyage from
Joppa to Tarshish. The elements of general average were present, though
it does not appear that an adjustment was made.
CHAPTER XIV
CRIMES COMMITTED AT SEA
=1. Definition.=--A crime consists in the violation of a public law
either forbidding or commanding an act to be done. One act may
constitute several crimes against different jurisdictions, as against a
State and the United States and a foreign country. Crimes are classified
as treason, felonies and misdemeanors. Treason against the United States
consists only in levying war against them, or in adhering to their
enemies, giving them aid and comfort. Felonies are crimes punishable by
death or imprisonment in a state prison; all other crimes are
misdemeanors.
Crimes committed at sea are those accomplished upon the high seas or
within the jurisdiction of the admiralty, which extends over all
navigable waters. Such crimes are punishable by the United States so far
as Congress legislates on the subject and otherwise by the particular
sovereignty within whose jurisdiction the offense is committed.
=2. Admiralty Criminal Jurisdiction.=--The constitutional grant embraces
criminal as well as civil cases and no crime can escape punishment
because committed on shipboard or on the high seas. The provisions of
the Constitution in regard to the trial of crimes under the laws of the
United States require the proceedings to be according to the practice of
the common law, so that they are before a jury as in ordinary cases and
the ordinary rules of criminal law are applied. These crimes are covered
by the Criminal Code (10 U. S. Comp St. 1916, 10419-10444; 10445-10462;
10463-10483). There may also be other crimes according to the law of the
place where the vessel may be or according to the laws of the State or
country from which she hails. Merchant vessels are regarded for many
purposes as floating portions of the country to which they belong and of
the particular State of their home port. An American merchant vessel on
the high seas will therefore continue under the appropriate laws both of
the United States and of her own particular State, and while in foreign
ports she will also be subject to local law. She will never be outside
the scope of some law and although several jurisdictions may overlap,
crimes committed on board will not escape punishment.
=3. Place of Trial.=--Whenever an offense is committed on board of an
American vessel, it is the duty of the master and crew to detain the
offender and surrender him to the proper authorities for trial as soon
as may be. If the offense is within the limits of a particular State,
the trial must be in a Federal court therein; if committed on the high
seas, then in a like court of the district wherein the offender is
apprehended or into which he is first brought; if within a port of a
foreign country, the local laws may prevail. The jurisdiction of every
independent nation over the merchant vessels of other nations within its
boundaries is absolute and exclusive and arrests may be made thereon and
offenders removed for trial according to the laws of the locality. The
right of local authorities to search a vessel in their ports for a
person charged with crime is established unless modified by treaty. The
master is bound to submit to the jurisdiction within which his vessel
lies. In practice a distinction is made between offenses affecting the
peace and dignity of the foreign country and those only involving the
internal order and discipline of the ship. A certain comity preserves
the latter from outside interference and local authorities will usually
decline to act in such cases or interfere with the general authority of
the master. It is frequently provided by treaty that disputes between
the masters, officers and crews may be adjudicated by their consuls,
provided that they do not disturb the peace or tranquillity of the port.
=4. Offenses Not Consummated on Shipboard.=--Where the crime is
committed on the high seas although not on shipboard, the admiralty
jurisdiction as administered by the Federal courts will still be
enforced. The case of Holmes, 1 Wall. Jr. 1; 26 Fed. Cas. No. 15,383, is
an unusual example. The American ship, _William Brown_, loaded with
passengers and cargo, struck an iceberg in the North Atlantic and had to
be abandoned. Nine of the crew and thirty-two passengers got into the
longboat; Holmes was one of the crew and took charge of her in an
attempt to reach Newfoundland, then about three hundred miles away. The
longboat proved leaky and was so seriously overloaded by those on board
as to fill with water in the sea which began to rise. In the face of
urgent necessity and under Holmes' general directions, sufficient of the
passengers were thrown overboard to enable the boat to float until
picked up by a passing ship. Holmes was convicted of manslaughter in the
Eastern District of Pennsylvania.
=5. Penalties and Forfeitures.=--The ship herself may be a
quasi-criminal under maritime law. All commercial nations find it
necessary for the enforcement of their laws and regulations in regard to
commerce by sea, to impose penalties upon the vessel by or through which
violations occur. So a vessel which has engaged in any piratical
aggression may be condemned and sold for the use of the United States.
Violation of a blockade or carriage of contraband of war renders the
ship liable to seizure and sale by the Government. A ship licensed for
the coasting trade may be forfeited if she engages in any other, and
many penalties may be inflicted upon the vessel for acts of which the
owner is entirely innocent. Similarly a false oath made in order to
obtain the registry of a vessel, or any other fraud for the purpose of
obtaining registry, enrollment or licenses will result in her
forfeiture, and so will a sale to an alien without complying with the
provisions of the statutes (Chapter 11, § 10, _supra_). Forfeiture of a
vessel will also result from an attempt to change her name, otherwise
than by the method provided by law (Chapter 11, § 9, _supra_), or to
deceive the public as to her true name and character by any contrivance,
device or advertisement of law where the owner or the master is privy to
the offense, as for example the importation of diseased cattle. The
doctrine of the personality of the ship again appears in the criminal
law of the admiralty which treats her like an individual for purposes of
regulation and punishment. The principle was laid down by Justice Story
in the brig Malek Adhel, 2 How. (U. S.) 210:
It is not an uncommon course in the admiralty, acting under the law of
nations, to treat the vessel in which or by which, or by the master or
crew thereof, a wrong or offense has been done as the offender, without
any regard whatsoever to the personal misconduct or responsibility of
the owner thereof.
* * * * *
The acts of the master and crew, in cases of this sort, bind the
interest of the owner of the ship, whether he be innocent or guilty;
and he impliedly submits to whatever the law denounces as a forfeiture
attached to the ship by reason of their unlawful or wanton wrongs.
Thus if a vessel fails to carry the wireless equipment prescribed by law
a fine is imposed upon the master and is a lien upon the ship
enforceable by law in admiralty. The statute governing the equipment of
vessels with radio telegraph apparatus is given under § 11 _infra_.
Innocent cargo is not involved in the forfeiture of a guilty vessel, and
where the owner and master of a vessel is innocent she will not usually
be forfeitable by reason of the guilt of the cargo.
The sending, or attempting to send to sea, of a vessel so unseaworthy as
to be likely to endanger life, is a misdemeanor for which the person
guilty is to be punished by fine or imprisonment, or both (Act of
December 21, 1898, § 11), unless he is able to prove either that he used
all reasonable means to insure her being sent to sea in a seaworthy
state, or that her going to sea in an unseaworthy state was under
circumstances reasonable and justifiable.
=6. Federal Criminal Code.=--This was promulgated by the Act of March 4,
1909, and will be found in 10 Comp. St. 1916, commencing at page 12491.
Maritime offenses are grouped in Chapter 11, "Offenses within the
admiralty and maritime and the territorial jurisdiction of the United
States," and Chapter 12, "Piracy and other offenses upon the Seas."
Unlike the legislatures of the several States, which have an inherent
power to define and punish any act as a crime, subject to constitutional
limitations, Congress is confined to the powers enumerated in the
Federal Constitution. In regard to offenses at sea, its power is derived
from § 8 of Article 1, "To define and punish Piracies and Felonies
committed on the high seas, and Offenses against the Law of Nations,"
and from Article III which provides that the judicial power shall be
versed "in such inferior courts as the Congress may from time to time
ordain and establish" and shall extend "to all cases of admiralty and
maritime jurisdiction." Chapter 11 provides for the punishment of
murder, manslaughter, felonious and simple assaults, attempts to commit
murder or manslaughter, rape, seduction, loss of life by misconduct of
officers of vessels, maiming, robbery, maritime arson, larceny and
receiving stolen goods, when committed upon the high seas, or any other
waters within the admiralty and maritime jurisdiction of the United
States and out of the jurisdiction of any particular State, or within
such admiralty jurisdiction on board of any vessel belonging in whole or
in part to the United States, or any citizen thereof, or corporation
created under its laws or those of any of its States, Territories or
Districts; also, when committed upon any American vessel on a voyage on
the Great Lakes, or upon any island, rock or key, containing deposits of
guano and appertaining to the United States.
Chapter 12 provides for the punishment of piracy; maltreatment of crews;
incitement of revolt or mutiny; seamen laying violent hands on
commanders; abandonment of mariners in foreign ports; conspiracy to cast
away vessels; plundering vessels in distress; holding false lights;
attacking vessels with intent to plunder; breaking and entering vessels;
destruction of vessels at sea; robbery on shore by pirates; arming
vessel to cruise against citizens; piracy under color of foreign
commission; piracy by aliens; voluntary surrender to pirates; plotting
or corresponding with pirates and selling arms or intoxicants to any
aborigines in Pacific Islands. The punishments provided for the offenses
in these two chapters are generally severe but in harmony with what
experience has shown to be appropriate for the crimes dealt with.
Besides these provisions, the Code, in Chapter 10, deals with the slave
trade and peonage; in Chapter 2, with offenses against neutrality; and
in Chapter 9, with offenses against foreign and interstate commerce,
such as carrying explosives on passenger vessels.
Title LIII Merchant Seaman (7 Comp St. §§ 8380-8391) contains various
provisions in respect of offenses and punishments of seamen; desertion;
willful disobedience; assaults on officers; damaging the vessel;
embezzlement of stores or cargo; smuggling; drunkenness; carrying
sheath-knives; unlawful boarding; soliciting seamen as lodgers; and
corporal punishment are there dealt with.
=7. Concurrent Jurisdictions.=--There is no doubt that Congress has the
power to make all crimes committed within the admiralty jurisdiction
punishable in the federal courts but it has not done so and is not
likely ever to so enact. Neither is it likely ever to assert an
exclusive jurisdiction over all or any such crimes except as may be in
violation of a purely federal enactment. Where this exclusive
jurisdiction has not been asserted, either in terms or by necessary
implication, state laws are not superseded by federal, and the same act
may be punished as an offense against the United States and also as an
offense against the State; it may thus be within the jurisdiction of
both federal and state courts or the one may have jurisdiction of it
under one aspect and the other under a different phase. The rule of
comity is the same as in civil cases; where there is concurrent
jurisdiction, the court which first obtains it, will continue to act to
the exclusion of the other. Where the defendant obtains an acquittal in
one court of concurrent jurisdiction, the judgment is a bar to a
subsequent trial in the other, since he is not subject, for the same
offense, to be twice put in jeopardy of life or limb.
=8. Limitations of Prosecutions.=--The right of the government to
prosecute for a crime is not barred by any lapse of time unless its
statutes so expressly provide. In the federal courts, there must be an
indictment within three years after the offense was committed, in most
instances; for the slave trade, the term is five years; but these terms
do not run while the offender is a fugitive from justice.
=9. Piracy.=--While the majority of offenses under maritime law only
differ from like offenses on land in respect of locality, piracy is
confined to the water. Pirates are enemies of all mankind and the
offense is against the universal laws of society. There is a piracy,
therefore, by the law of nations and those guilty of it are subject to
pursuit, seizure and punishment by the vessels of every nation. There is
also a statutory piracy which is punishable only within the limits of
the jurisdiction which defines it. The pirate by the law of nations is
an outlaw whom any nation may capture and punish. He is one who, without
legal authority from any state, attacks a ship with the intention to
appropriate what belongs to it; in other words, his offense is that of
depredation on the high seas without authority from any sovereign state.
All private, unauthorized maritime warfare is piratical because it is
incompatible with the peace and order of the high seas. It is not
necessary that the motive be plunder or that the depredations be
directed against the vessels of all nations indiscriminately; it is only
essential that the spoliation, or intended spoliation be felonious, that
is, done willfully and without legal authority or lawful excuse. In
cases of this piracy by international law, it is of no importance, for
purposes of jurisdiction, where or against whom, the offense is
committed; such pirates may be tried and punished and the ship captured
and condemned wherever found. Apart from international law, any
government may declare offenses on its own vessels to be piracy and such
offenses will be exclusively punishable by it like other crimes. St.
Clair _v._ U. S., 154 U. S. 134, may be examined in regard to an
instance of statutory piracy; while the Ambrose Light, 25 Fed. 408, is a
very learned and authoritative opinion on the modern views of piracy
under international law.
=10. Barratry.=--This expression frequently appears in maritime law and
includes any act done by the master or crew, with criminal intent, in
violation of their duty to the shipowner and without his connivance. It
is a general term applicable to many criminal acts and therefore not
properly classifiable as a crime by itself. The most flagrant form is
where the ship is burned, scuttled or stranded by the master or crew. In
Marine Insurance it includes every wrongful act willfully committed by
the master or crew to the prejudice of the owner, or, as the case may
be, the charterer.
Inasmuch as barratry must be directed against or in fraud of the owner,
it cannot be committed by a master who is a part owner of the ship,
either generally or for the voyage. Thus in the old case of Marcadier
_v._ Ins. Co., 8 Cranch 39, the master abandoned the voyage at an
intermediate port for his own emolument and advantage, and, as a result,
a quantity of cargo was spoiled. It was contended that he had been
guilty of barratry. The Court found, however, that he was the owner of
the ship and therefore incapable of committing the offense. In Ins. Co.
_v._ Coulter, 3 Peters 222, it was held that gross negligence might be
evidence of barratry:
And when it is considered how difficult it is to decide where gross
negligence ends and ordinary negligence begins, and to distinguish
between pure accident and accident from negligence, we cannot but think
that the British courts have adopted the safe and legal rule in
deciding, that where the policy covers the risk of barratry, and fire
be the proximate cause, they will not sustain the defense that
negligence was the remote cause.
This case contains a quaint quotation from the doctrine of Malynes
"whose book unites the recommendations of antiquity, good sense and
practical knowledge." The passage follows:
Barratrie of the master and mariners can hardly be avoided, but by a
provident care to know them, or at least the master of the ship upon
which the assurance is made. And if he be a careful man, the danger of
fire above mentioned will be the less for the ship; boys must be looked
unto every night and day. And in this case let us also consider the
assurers; for it has oftentimes happened, that by a candle unadvisedly
used by the boys, or otherwise, before the ships were unladen, they
have been set on fire and burnt to the very keel, with all the goods in
them, and the assurers have paid the sums of money by them assured.
Nevertheless, herein the assurers might have been wronged, although
they bear the adventure until the goods be landed; for it cometh to
pass sometimes, that whole ships' ladings are sold on shipboard, and
never discharged.
=11. Failure to Equip with Radio Telegraph.=--By Act of Congress
approved June 24, 1910, 36 St. at L. 629, it is provided that it shall
be unlawful for any oceangoing steamer, whether American or foreign,
carrying passengers and carrying fifty or more persons, including
passengers and crew, to leave any port of the United States unless
equipped with efficient apparatus for radio communication in good
working order, capable of communicating over a distance of at least one
hundred miles, night or day, and in charge of a competent operator. To
be efficient the apparatus must be capable of exchanging messages with
stations using other systems of radio communication. A fine of not more
than $5,000 is assessed against the master or other person in charge for
violation of the act and as has been said (§ 5 _supra_) the fine is a
lien upon the ship. Regulations for the enforcement of the act are made
by the Secretary of Commerce. The act does not apply to steamers plying
between ports less than 200 miles apart.
=12. Failure to Disclose Liens.=--By the Ship Mortgage Act, 1920 (see
Appendix, Merchant Marine Act, Sec. 30), a mortgagor of a preferred
mortgage is required, upon request of the mortgagee, to disclose the
existence of any maritime lien, prior mortgage or other liability upon
the vessel, known to the mortgagor, and to refrain, until the mortgagee
has had an opportunity to record the mortgage, from incurring liens upon
the vessel except for wages, general average and salvage. Disobedience
to this injunction with intent to defraud is made a misdemeanor
punishable by a fine of not more than $1,000 and imprisonment of not
more than two years, or both, and the mortgage debt is to become due
immediately.
=13. Mutiny.=--This term is most often used with reference to an offense
committed on shipboard, although technically it is not peculiar to
shipping, but may be committed by soldiers and servants. Mutiny on
shipboard is defined as follows: "A revolt or mutiny consists in
attempts to usurp the command from the master or to deprive him of it
for any purpose by violence or in resisting him in the free and lawful
exercise of his authority; the overthrowing of the legal authority of
the master, with an intent to remove him against his will and the like."
Mere refusal of duty or disobedience by a seaman while liable to
punishment by the master is not mutiny, and the conduct may be very
aggravating and contumacious without amounting to mutiny. The Stach
Clark, 54 Fed. 533.
CHAPTER XV
WRECKS AND DERELICTS
=1. Definitions.=--In a legal sense, the word wreck includes ships and
cargoes, or any parts thereof, which have been cast on shore by the sea,
and derelict applies to similar property abandoned on the sea. The terms
should be understood as limited to things of a maritime nature and as
including the old subdivisions of flotsam, jetsam and ligan,--flotsam
being the name for the goods which float when the ship is sunk, jetsam
meaning those which are jettisoned or thrown overboard, and ligan those
cast into the sea but tied to a buoy or marker so that they might be
found again. Derelict is the term applied to a thing which is abandoned
at sea by those who were in charge of it, without any hope of recovery
or intention of return.
=2. Wrecks under the Common Law.=--It is said in Murphy _v._ Dunham, 38
Fed. 503, that the disposition of wrecks and derelicts is usually a fair
index of the degree of civilization of the people within whose domains
such property is found. In primitive societies, wrecks are treated as
the plunder of the finder, or lord of the soil, since title depends on
possession and the owner's rights disappear when his goods are separated
from him. The common law of England long exhibited this imperfect notion
of property. Blackstone, writing about 1760, points out that by the
ancient common law, wrecked goods belonged to the King since by the loss
of the ship all property left the original owner. This harsh rule was
modified by statutes which declared, in substance, that if a man, dog,
or a cat escaped alive out of the disaster, it was no wreck but might be
reclaimed by the owner within a year and a day. In this country,
colonial laws and current statutes have alike repudiated these primitive
notions, and reënacting appropriate provisions of Roman and medieval
sea-law, provide for safely keeping the property for the space of a
year, or other reasonable time, for the owner, and delivering it to him
on the payment of reasonable salvage; only in the event of the total
failure of the owner to appear, do the goods or their proceeds pass to
the state. The Act of Congress (10 U. S. Comp. St. 1916, § 10470)
provides that whoever plunders, steals, or destroys any money, goods,
merchandise, or other effects, from or belonging to any vessel in
distress, or wrecked, lost, stranded, or cast away, upon the sea, or
upon any reef, shoal, bank, or rocks of the sea, or in any other place
within the admiralty and maritime jurisdiction of the United States,
shall be fined not more than five thousand dollars and imprisoned not
more than ten years; and whoever willfully obstructs the escape of any
person endeavoring to save his life from such vessel, or the wreck
thereof; or whoever holds out or shows any false light, or extinguishes
any true light, with intent to bring any vessel sailing upon the sea
into danger, or distress, or shipwreck, shall be imprisoned not less
than ten years and may be imprisoned for life.
It is interesting to note, in connection with this statute, two Articles
of the _Rooles of Oléron_,--
ARTICLE XXV
If a ship or other vessel arriving at any place, and making in towards
a port or harbour, set out her flag, or give any other sign to have a
pilot come aboard, or a boat to tow her into the harbour, the wind or
tide being contrary, and a contract be made for piloting the said
vessel into the said harbour accordingly; but by reason of an
unreasonable and accursed custom, in some places, that the third or
fourth part of the ships that are lost, shall accrue to the lord of the
place where such sad casualties happen, as also the like proportion to
the salvors, and only the remainder to the master, merchant and
mariners: the persons contracting for the pilotage of the said vessel,
to ingratiate themselves with their lords, and to gain to themselves a
part of the ship and lading, do like faithless and treacherous
villains, sometimes even willingly, and out of design to ruin ship and
goods, guide and bring her upon the rocks, and then feigning to aid,
help and assist, the now distressed mariners, are the first in
dismembering and pulling the ship to pieces; purloining and carrying
away the lading thereof contrary to all reason and good conscience: and
afterwards that they may be the more welcome to their lord, do with all
speed post to his house with the sad narrative of this unhappy
disaster; whereupon the said lord, with his retinue appearing at the
places, takes his share; the salvors theirs; and what remains the
merchant and mariners may have. But seeing this is contrary to the law
of God, our edict and determination is, that notwithstanding any law or
custom to the contrary, it is said and ordained, the said lord of that
place, salvors, and all others that take away any of the said goods,
shall be accursed and excommunicated, and punished as robbers and
thieves, as formerly hath been declared. But all false and treacherous
pilots shall be condemned to suffer a most rigorous and unmerciful
death; and high gibbets shall be erected for them in the same place, or
as nigh as conveniently may be, where they so guided and brought any
ship or vessel to ruin as aforesaid, and thereon these accursed pilots
are with ignominy and much shame to end their days; which said gibbets
are to abide and remain to succeeding ages on that place, as a visible
caution to other ships that shall afterwards sail thereby.
ARTICLE XXVI
If the lord of any place be so barbarous, as not only to permit such
inhuman people, but also to maintain and assist them in such villanies,
that he may have a share in such wrecks, the said lord shall be
apprehended, and all his goods confiscated and sold, in order to make
restitution to such as of right it appertaineth; and himself to be
fastened to a post or stake in the midst of his own mansion house,
which being fired at the four corners, all shall be burnt together, the
walls thereof shall be demolished, the stones pulled down, and the
place converted into a market place for the sale only of hogs and swine
to all posterity.
The Act of Congress and the ancient articles are both occasioned by the
persistent notion of loss of title by shipwreck and the right of people
on shore to appropriate what they can of the property at risk.
=3. Wrecks within Admiralty Jurisdiction.=--It is sometimes said that
the admiralty has no jurisdiction over wrecks, but the statement is
correct in only a limited sense. In cases where the property had become
quite removed from all connection with commerce or navigation, as where
a ship had been thrown far inland by a tidal wave and been converted
into a dwelling, or cargo was incorporated into the common mass of
property on shore, the admiralty would probably decline jurisdiction. On
the other hand, the admiralty law of salvage is based, in large part, on
the law of wrecks and derelicts; contracts for the lightering of
stranded cargoes or the release of wrecked vessels are obviously
maritime and the conversion of shipwrecked property may be a maritime
tort when consummated on navigable waters. A steamer which had been
wrecked and abandoned to the underwriters as a total loss, and incapable
of self-propulsion or of carrying a cargo, still remained within the
admiralty law of limited liability (Craig _v._ Insurance Company, 141
U. S. 638). The fact is that the two jurisdictions are largely
concurrent on most matters in regard to wrecks and the instances, in
which an adequate remedy can not be found in either, are rare.
=4. Liabilities of Owner of Wreck.=--It is a general doctrine of the law
that the owner of a vessel wrecked without his personal fault may
relieve himself from all further personal liability on its account by
abandoning it. If sunk through his fault, or if he still retains his
title, he may be liable for damage which it occasions, or for
maintaining a nuisance, or for obstructing navigable waters. If wrecked
by unavoidable accident or without the owner's negligence, he may
abandon all his rights and interest in what remains and be freed from
all further responsibility; he will be under no obligation to remove it
nor subject to indictment on its account, nor liable in damages for
injuries caused by it. This abandonment is not required to be in any
formal way but is shown by evidence of acts and intention. A notice to
any public authorities who may be concerned, like local United States
engineers, or harbor masters, or commissioners of wrecks, is often
sufficient. Where, however, the owner does not abandon, he remains
liable in many respects. The wreck may be a nuisance which the courts
will compel him to abate at the suit of property owners injuriously
affected. It may be an obstruction to navigable waters and the
government may remove it at his expense or proceed against him
criminally for such obstruction. Passing vessels may injure themselves
against it or the riparian owner assert damages for the trespass.
=5. Rights of Landowner.=--The owner of the shore on which a wreck is
cast is not under any legal obligation to save it for the owner but he
may take possession and protect it on the owner's account. If he does
so, he will have a lien on the property for his expense and labor, at
least, and may stand in the position of a salvor. If he does nothing
himself, he may not resist the reasonable efforts of others to save the
property for it is a very old rule of the common law, that an entry upon
land to save goods which are in jeopardy of being lost or destroyed by
water, fire or any like danger, is not a trespass, and this rule is
applied to the rescue of ships cast ashore by the sea. At the same time,
the owner of the shore will have a sufficient title to goods cast
thereon to maintain an action for their value against third parties and
salvors should be prompt in seeking the protection of the admiralty if
their efforts are successful.
=6. Owner's Rights.=--The owner's title to his wrecked ship or cargo
remains in him until divested by his own act or by operation of law and
he has the right to enter upon lands of another, upon which it may be
cast, for the purpose of removing it; if prevented from so doing he may
have his action of trover for its conversion or a replevin for
possession.[31] In case his property was insured and abandoned to his
underwriters, they become the full owners thereof and entitled to all
his rights on the premises. These rules apply alike to ship and to cargo
and to all the parts thereof. In Murphy _v._ Dunham, 38 Fed. 503, may be
found an interesting discussion in regard to a wrecked cargo of coal.
Dunham owned the schooner _Burt_ which was lost in Lake Michigan with
about 1,375 tons of coal on board. Murphy bought this cargo from the
underwriters who had paid a total loss thereon. About two years
afterwards, Dunham located the wreck and raised a quantity of the coal
which he sold for the best price obtainable. These proceedings were
without any license or authority from Murphy, who had purchased the
cargo, and he then sued Dunham for tortious conversion. The court held
that Murphy had a valid title and that Dunham was a trespasser in
interfering with it; nevertheless if Dunham had promptly libeled it for
salvage, his conduct not being marred by bad faith, the admiralty would
have awarded him a substantial reward; but as he had assumed to dispose
of it at private sale, he must answer in damages, although not as a
willful trespasser or one acting in bad faith; he was accordingly held
to respond for the value of the coal in the port where he sold it, less
the actual and necessary expenses of its recovery. The Albany, 44 Fed.
431, is another opinion in regard to the rights of the owners of ship
and cargo; as a result of that disaster, the cargo was plundered by
wreckers and sold to many persons in the vicinity; the underwriters
recovered it by actions in replevin wherever it could be found.
=7. Rights of Government.=--The Act of March 3, 1899, (10 U. S. Comp.
St. § 9920, etc.) contains provisions for the removal of wrecks in
navigable waters by the Government. The obstruction may be broken up,
removed, sold or otherwise disposed of by the Secretary of War at his
discretion, without liability for any damage to the owners of the same.
This authority may be delegated by the Secretary of War and permits the
prompt removal of wrecks when they interfere with navigation. The rights
and power of the Government to so dispose of wreckage can hardly be
doubted and similar power probably exists in all foreign jurisdictions
as well as in the several states.
=8. Derelicts.=--Vessels abandoned and deserted at sea, with or without
their cargoes, are termed derelicts and may be salved or destroyed by
whomsoever can do so. They constitute very dangerous obstructions to
navigation, especially when afloat on the ocean or the Great Lakes. The
question whether or not a vessel is to be adjudged a derelict is decided
by ascertaining, not what was actually the state of things when she was
deserted by her master and crew, but what were their intentions and
expectations when they quitted her. If they left in order to obtain
assistance with the distinct purpose to return, there is no derelict.
_Prima facie_, however, a deserted vessel at sea is a derelict and
subject to salvage services, or, if not salvable, then to destruction by
private parties or naval authorities. Salvage of derelicts is always
liberally rewarded, sometimes to the amount of the whole recovery. If
destroyed, the proceeding must be in entire good faith and, if so, there
will be no liability to the owner. In the case of the River Mersey, 48
Fed. 686, that steamer had burned a scow found adrift at sea and was
libeled for its destruction. It appears that the scow had broken adrift
near one of the West Indies and become a dangerous factor in the
navigation up and down the coast. The steamer took her in tow in order
to drop her inside of the Gulf Stream but, finding this impossible on
account of the weather, set her on fire in order to destroy her and so
remove a dangerous obstruction to navigation. The owners of the scow
alleged that they had not abandoned her and meant to send out a tug to
bring her into port. The court dismissed the libel, saying that the
destruction of such obstacles to the fairways of the sea, either when
abandoned, or when proved not to be worth saving, is not tortious or
actionable, but rather a praiseworthy and beneficent service, and,
whether done by private or public ships, needs no statutory authority
but is entirely justified under the law of necessity, for the protection
of life and property, and for the manifest public good.
=9. Finders.=--The person who finds property lost at sea, or cast upon
the shore, is protected against the interference of third parties
although he has no title against the real owner unless that owner had
abandoned completely. Eads _v._ Brazelton, 22 Ark. 499, is an excellent
opinion on this phase of the subject. The steamboat _America_, laden
with a cargo of lead, had sunk in the Mississippi River in 1827. In 1854
Brazelton had discovered the wreck over which an island had formed and a
forest grown, and commenced preparations for its recovery. He marked its
position and placed buoys around it but was prevented from commencing
operations until the next year. In the meantime Eads commenced
operations on his own account and Brazelton sought an injunction to
restrain him. The original owners did not appear or make any claim.
Brazelton was held to have a good title as against any others than the
owner on the ground that he was the first finder of an abandoned wreck.
[31] These are common-law forms of action for the recovery of property or
damage for its detention.
CHAPTER XVI
WHARFAGE AND MOORAGE
=1. Definition.=--Wharves are structures made to facilitate and aid
commerce and navigation and are essential to maritime affairs. They are
classed as public and private and frequently regulated by local laws and
ordinances. Wharfage means the use by the vessel of a wharf, pier or
other landing place and also the compensation for such use; moorage is a
practically similar term but may include the use of unimproved property
by the ship while anchored or otherwise attached to the shore or lying
in a slip. Private wharves are those which the owner has constructed and
reserved for his own use but when they are legally thrown open to the
use of the public, they become affected with a public interest; the
keeping of such a wharf has been likened to inn-keeping or other
quasi-public places and all seeking its use are entitled to
accommodation at reasonable rates.
=2. Right to Erect.=--The construction of wharves or piers upon
navigable waters is usually governed by federal, state or municipal
regulations and, unless appropriate authority is obtained, the erection
of such a structure, projecting into the stream, will be unlawful and
the person responsible for the obstruction may be liable for any damage
resulting from its existence, and may be criminally liable to the
federal government and subject to injunctive process for the removal of
the structure. This remark does not apply to structures confined wholly
to the shores and not projecting. The paramount authority to legislate
with regard to wharves in navigable streams resides in Congress, which
has enacted that no such structures shall be erected outside of
established harbor lines, or where no harbor lines have been
established, except by specific authority of the Secretary of War. The
Secretary of War is empowered to establish harbor lines where he
considers it essential (30 St. at L. 425). It has been held, however,
that the power of Congress to regulate the use of navigable waters
entirely within the limits of a State is not complete without the
concurrence of the state legislature. In most communities located on
navigable waters, there exists a corporate power, conferred by the
legislature, to regulate wharves, piers and landings, and in pursuance
of such power wharves and harbor lines are frequently established, in
the absence of federal action establishing the same.
=3. Duties of Proprietor.=--The owner of a wharf is bound to keep it
safe and free from all defects which might injure persons or property
using the same. While not an insurer he must use due diligence to make
and keep it safe for the uses for which it was constructed or is
employed. The analogy is that of the keeper of any structure commonly
used by others for compensation and the obligation extends to all who
rightfully come upon the premises for business purposes. Thus friends
attending upon the arrival or embarkation of passengers, consignees of
cargo, hackmen, and customs officers have recovered damages against the
owner of a wharf for injuries sustained through its defective condition.
So he will also be liable for injuries to vessels caused by rocks or
other obstacles beneath the surface of the water or pikes projecting
from the wharf. There is an implied warranty that the premises are safe
and free from hidden obstructions. Frequent inspections are required in
order to ascertain and repair such defects as may be engendered by its
use, and if dangers are found to exist, he should close the wharf or
give ample notice of its condition.
These principles were invoked in the case of Onderdonk _v._ Smith, _et
al._, 27 Fed. 874; where a scow and her cargo were sunk in consequence
of being punctured by a spile which projected from the bottom of the
slip directly under the place where the scow had taken her cargo. The
respondent enjoyed the exclusive privilege from the owners of using the
pier and the adjoining slip for shipping their coal and to that extent,
although they were neither owners or lessees, had control and occupation
of the premises. "They assumed the duty toward those whom they invited
there for the transaction of business not to expose them to hazard from
any defects in the condition of the premises known to themselves or
which, by the use of reasonable diligence, should have been known."
Their superintendent knew of the existence of the spile and they were,
therefore, chargeable with notice, because about three weeks before the
accident in suit another boat had been struck by the same spile. The
Court said:
If the scow had been injured by this obstruction while being loaded at
the pier, or while going to it or away from it in the prosecution of
the business which called her there, the case of the libellant would be
clear. But the evidence is that her loading was completed at half past
4 o'clock in the afternoon, when the water was a little below high
tide, and the accident happened about half past 9 in the evening, when
the tide was low ebb; and if the scow had been removed from the place
where she was loaded within a reasonable time after the loading was
completed, she would not have been injured. When the tide went out, the
scow settled down upon the spile, which projected about a foot from the
bottom of the slip, and sufficiently far to puncture the boat at that
condition of the water.
* * * * *
The only liability of the defendants grows out of their duty arising
from their implied invitation to others to use the pier for the
transaction of the business to which the pier was appropriated. Their
invitation was spent when the boat's business at the pier was finished,
and a reasonable time had elapsed to enable her to move away. After
that she remained there at her own risk. It is not necessary to hold
that she was there against the permission of the defendants, and
therefore a willful trespasser; but, assuming that she was there
without having obtained the permission of the defendant's
superintendent, the defendants were not under any obligation to concern
themselves for her protection. Under such circumstances, the law
imposed no duty upon the defendants except the general duty which every
man owes to others to do them no intentional wrong or injury.
* * * * *
Owners of private property are not responsible for injuries caused by
leaving a dangerous place unguarded, when the person injured was not on
the premises by permission, or on business, or other lawful occasion,
and had no right to be there. One who thus uses another's premises
cannot complain if he encounters unexpected perils.
In Smith _v._ Burnett, 173 U. S. 430, a schooner while moored in berth
at a wharf on the Potomac River for loading, was sunk by a submerged
rock within the limits of the berth at the wharf, which the master was
invited to take, the obstruction being unknown to the master and having
been assured by the owners of the wharf, through their agent, that the
depth of water in the berth in front of the wharf was sufficient and
that the berth was safe for the loading of vessels. Chief Justice
Fuller, discussing the English and American authorities said:
Although a wharfinger does not guarantee the safety of vessels coming
to his wharves, he is bound to exercise reasonable diligence in
ascertaining the condition of the berths thereat, and if there is any
dangerous obstruction, to remove it, or to give due notice of its
existence to vessels about to use the berths. At the same time the
master is bound to use ordinary care, and cannot carelessly run into
danger.
=4. Rights of Proprietor.=--The owner of a private wharf is entitled to
compensation for its use by others or to reserve it entirely for his own
accommodation. Riparian owners may construct and maintain, for their own
exclusive use and benefit, private wharves on their own property, and,
so long as they do use them, and refrain from giving them a public
character, may deal with them as other private property. If a vessel is
wrongfully moored to such a private wharf, the owner may cast it adrift
and will not incur any liability if, in consequence of his act, the
vessel becomes stranded and lost. In the interesting case of Dutton _v._
Strong, 1 Black 23, a vessel in peril running into a harbor in the night
made fast to a pier, which was the private property of the riparian
proprietor, without securing his permission. The force of the sea
causing the vessel to pound and parts of the pier beginning to give way,
the proprietor of the pier warned the master to leave. The master,
believing that such a course would imperil his vessel, did not do so and
the pier owner cast her loose, as a result of which she was so seriously
injured that her master was obliged to scuttle her. The owner of the
vessel brought action for damages. The court (Clifford, J.) said:
Piers or landing places and even wharves, may be private, or they may
be in their nature public, although the property may be in an
individual owner; or, in other words, the owner may have the right to
the exclusive enjoyment of the structure, and to exclude all other
persons from its use; or he may be under obligation to concede to
others the privilege of landing their goods, or of mooring their
vessels there, upon the payment of a reasonable compensation as
wharfage; and whether they are the one or the other may depend, in case
of dispute, upon several considerations, involving the purpose for
which they were built, the uses to which they have been applied, the
place where located, and the nature and character of the structure.
Undoubtedly, a riparian proprietor may construct any one of these
improvements for his own exclusive use and benefit, and, if not located
in a harbor, or other usual resting place for vessels, and if confined
with the shore of the sea or the unnavigable waters of a lake, and it
had not been used by others, or held out as intended for such use, no
implication would arise, in a case like the present thus the owner had
consented to the mooring of the vessel to the bridge pier.
Accordingly it was held that:
When it became obvious that the necessary effect of the trespass, if
suffered to be continued, would be to endanger and injure or perhaps
destroy the pier, the peril of the vessel imposed no obligation upon
the defendants to allow her to remain and take the hazard that their
own property would be sacrificed in the effort to save the property of
the wrongdoers. On the contrary, they had a clear right to interpose
and disengage the vessel from the pier to which she had been wrongfully
attached, as the only means in their power to relieve their property
from the impending danger. They had never consented to incur that
danger, and were not in fault on account of the insufficiency of the
pier to hold the vessel, because it had not been erected or designed as
a mooring place for vessels in rough weather, and it was the fault of
the plaintiffs or their agent that the vessel was placed in that
situation.
The proprietor of a private wharf may fix any rate he pleases for the
use of such a wharf and those employing it, after due notice of the
charge, will make themselves liable to pay it. This rule of private
property, however, applies only to the purely private wharf and slight
circumstances may be sufficient to give it a public character. It has,
indeed, been held that where the wharf constitutes the only means by
which the people of a community can reach the water and have the benefit
of the means of commerce and navigation thereon, the structure is
necessarily impressed with a public interest and may not be monopolized
to the exclusion of others.
=5. Wharfage Compensation.=--The compensation for the use of a private
wharf depends on the bargain of the parties concerned. When there is an
express contract, that will control; if the rate is published, the
vessel impliedly promises to pay it when she uses the wharf; such
publication may be by a sign or placard on the wharf or by any other
method of conveying actual notice of the rate. Where there is no express
agreement, or published rate, there is an implied promise to pay a
reasonable compensation or customary charge for the use of the property.
The same rule applies to cases of overlapping, where a vessel moored at
one wharf projects over another to a greater or less extent. In the case
of the Hercules, 28 Fed. 475, a tug 80 feet long habitually used a wharf
of only 59 feet and so overlapped the adjoining wharf although she did
not actually use it for loading or unloading. The proprietor gave a
general notice that he would claim compensation and later filed his
libel therefor. The court sustained his position, but, as no rate had
been named, referred the matter to a commissioner to report on what a
reasonable amount would be. In other than matters of private wharfage,
the compensation is frequently regulated by local law.
=6. Lien.=--There is a maritime lien upon a vessel for wharfage in all
cases where the ship is foreign, and, by the weight of authority, this
lien also arises in the case of domestic vessels. In all cases of
domestic vessels, however, the States may provide liens for wharfage, by
local statutes, and these will be enforced in the admiralty if the
conditions of such statutes have been observed. It has, however, been
rather generally held that this lien only attaches when the ship is
actively engaged in commerce and navigation and can not be created when
she is out of commission and laid up for storage purposes. So, in
localities where navigation is closed during the winter months, it is
said that there is no lien for winter wharfage and intimated that the
proprietor should secure himself under his common-law lien by declining
to surrender possession of the vessel until his charges are paid. The
lien has also been given a high rank, under some decisions, and placed
next after sailors' wages, although the propriety of this may seem open
to question. It is inferior to a "preferred mortgage" given on an
American ship pursuant to the Merchant Marine Act of 1920 (see
Appendix). It is essential, of course, since the lien depends on
contract, express or implied, that it should be treated by some one
having due authority to pledge the credit of the ship.
=7. Injuries to Wharves.=--Cases of collision between ships and wharves
are very frequent and the damages caused thereby are a well recognized
subject of marine insurance for which the underwriters agree to
indemnify the vessel when it has been compelled to pay them. Damage to
the wharf can not be recovered in the admiralty because the tort is not
maritime; it is not consummated upon the water but on the land of which
the wharf is a part. The wharf owner must, therefore, sue at common law
or under local statutes; he has no maritime lien for the injury. On the
other hand, the injuries received by the ship are consummated on the
water and fall within the jurisdiction of the admiralty; the ship,
however, can not libel the wharf because that is a fixed structure and
not subject to maritime liens; its remedy is by a libel _in personam_
against the wharf owner. If the wharf is a lawful structure and the ship
negligently runs into it, full damages may be recovered at law. Where
the structure is unlawful, the ship may recover its damages, in whole or
in part, as the fault may lie, in an admiralty proceeding. Atlee _v._
Union Packet Co., 21 Wall. 389, was a case where a barge was sunk by a
collision with a stone pier in the Mississippi river which had been
placed there without authority of law. The pilot of the barge was also
at fault in assuming to take her through the channel without posting
himself about the location of the pier. The proceeding was a suit in
admiralty by the owner of the barge against the owner of the pier, and,
both being considered in fault, the damages were divided. In connection
with the subject of admiralty jurisdiction it should be noted that while
it declines to take cognizance of the damages sustained by the owners of
fixed structures from collisions with vessels, the shipowners, by filing
a petition under the Limited Liability Act, may draw their claims into
the admiralty and enjoin their actions at common law (Richardson _v._
Harmon, 222, U. S. 96.).
Injuries are often sustained by docks and wharves when vessels make fast
thereto in stress of weather and can not leave without exposing
themselves to destruction. The rule is that the shipowner may not save
his own property at the expense of the wharf-owner but must compensate
him for the damage done by his ship, although the master had no
alternative but to remain as he did. Vincent _v._ Company, 109 Minn.
456, is a decision in point, and Dutton _v._ Strong, 1 Black 23, should
be read in the same connection.
=8. Anchorage.=--The rights of navigation are usually paramount in all
navigable waters and the right of anchorage is essential for a full
enjoyment of such rights. These waters are, in many respects, like
highways on the land, and there is a like privilege of stopping upon
them, from time to time, as an incident to the right of travel thereon,
subject to the reasonable requirements of traffic and the rights of
abutting property. The right of passage extends to every part of the
water, but the right of anchorage is confined to such places as are
usual or reasonable, in view of local conditions. It does not imply the
power to remain for long periods of time or to create a nuisance.
Charges for anchorage may be made by the owner of the property used if
it is an artificial one so that his work in improving or rendering it
accessible forms a consideration for the amounts required. Generally,
where only a natural roadstead is utilized in the course of navigation,
it is no more subject to expense to the vessel than the temporary
stopping of a vehicle upon a street.
The vessel, being at anchor in a proper place and otherwise complying
with law, is not liable for damages sustained by collision with it, but,
obviously, will have a strong case against the ship which runs her down.
She ought not to anchor in an exposed situation, except in cases of
necessity, and then only as long as the necessity prevails.
=9. Obstructions to Navigation.=--Anchored vessels, like wharves, piers
and the like, may constitute serious obstructions to navigation but this
does not give others the right to run them down. Approaching vessels are
still bound to use ordinary care and skill to avoid them. It is the duty
of a ship under way, whether the vessel at anchor be properly or
improperly anchored, to avoid, if it be possible with safety to herself,
any collision whatever, and the courts have frequently held that even if
a ship is brought up in the fairway of a river, if the other could with
ordinary care have avoided her, the latter will be held solely to blame.
In the case of the Future City, 184 U. S. 247, a tug and tow descending
the Mississippi River at New Orleans, upon rounding a point came in
collision with several battleships of the United States Navy, anchored
in line on swinging chains. It appeared that they had taken up these
berths in the fairway for descending vessels contrary to the usage of
the port and against the advice of the Board of Harbor Masters, who,
however, had no authority over naval vessels. There was abundance of
good anchorage elsewhere in the harbor. The Supreme Court held the
Government liable for the negligent anchoring of the naval vessels and
that the tug was not guilty of contributory negligence in being unable,
after rounding the point, to check the headway which the current of the
river imparted to the tow.
The Court quoted with approval the language of Spencer on Marine
Collisions:
It is negligence for a vessel to moor so near the entrance to a harbor
that shipping, entering in stress of weather, is liable to become
embarrassed by its presence; and where the usual difficulties of
navigation make the entrance to a harbor a dangerous undertaking, it is
especially reprehensible for a vessel to moor in a situation tending to
increase these difficulties.
Where a vessel is at anchor in a proper place, and is observant of the
precaution required by law, it is not liable for damages sustained by a
vessel in motion colliding with it, but where it anchors in an unlawful
position, or fails to observe the statutory requirements and such other
precautions as good seamanship would suggest, it must suffer the
consequences attending a violation of the law.
In cases like these, the admiralty is inclined to follow the rule of the
famous donkey case (Davies _v._ Mann., 10 M. & W. 546), where the owner
of the animal had fettered its forefeet and, in that helpless condition
turned it into a narrow highway; then the defendant's wagon came along
very fast and carelessly and the donkey was crushed; the defendant had
to pay for it because, if the driver of the wagon had been decently
careful, the consequences of the negligence of the owner of the donkey
would have been averted. Any vessel not "under way," as when aground,
moored, or at a wharf, is in the position of anchored vessel and subject
to similar rights and liabilities.
CHAPTER XVII
ADMIRALTY REMEDIES
One of the reasons for the continued vitality of the admiralty lies in
the efficiency of the remedies which it affords. If it were not for
these it is quite possible that it would long since have been absorbed
by the common law as was the law merchant many years ago. Parties having
rights to enforce will usually resort to the admiralty in preference to
any other court if the selection is open to them. This is not so much by
reason of any difference in the law as in the methods of its
application. Admiralty remedies may be divided into proceedings, _in
rem_, _in personam_, and under the Limited Liability Act.
=1. Proceedings in Rem.=--This procedure is peculiar to the American
admiralty and does not exist in the common law. As the name indicates,
it is directed against the thing itself to enforce property rights which
inhere in it, mainly maritime liens. It belongs to the courts of
admiralty exclusively and similar remedies attempted to be given by
state statutes are unconstitutional and void. The characteristic feature
of this proceeding is that the vessel or thing proceeded against is
itself seized and impleaded as the defendant and is judged and sentenced
accordingly. Sales made under it are good against all the world while at
common law it is only the title of the defendant which is affected and
the title conveyed can never be better than his own. The nature of the
proceeding is more apparent when it is noted that the admiralty
personifies the ship and considers her capable of incurring legal
obligations entirely irrespective of her owner's personal responsibility
therefor. There is no such doctrine in the common law.
American courts of admiralty--that is to say, the United States district
courts--take jurisdiction _in rem_ not only of domestic vessels but of
ships flying foreign flags, and of controversies originating on the high
seas and in foreign waters. The test is, whether the subject matter is
within admiralty jurisdiction. The admiralty courts are not bound to
take jurisdiction of controversies between foreigners, but they may
exercise it in their discretion and frequently do so, applying the
principles of international law or the _lex loci contractus_. In the
exercise of their discretion to take jurisdiction of suits between
foreigners, the courts give consideration to the wishes of consuls of
the nations involved, though they are not bound to do so. The United
States courts have jurisdiction _in rem_ for supplies furnished American
ships in foreign ports and foreign ships in American ports. They may in
their discretion take jurisdiction of claims for wages by foreign seamen
against foreign ships in American ports, and, of course, of claims of
American seamen against foreign ships. The principle upon which the
court is to determine whether to exercise jurisdiction is whether the
rights of the parties would best be served by retaining the cause or
remitting it to the foreign court.
Foreign governments sometimes own or operate merchant vessels, and a
serious question arises, as yet undetermined by the Supreme Court,
whether such vessels are, like naval vessels, exempt from maritime
liens, or whether they are subject to the process _in rem_ of the
admiralty courts. By the act of March 9, 1920, Shipping Board vessels
are immune from arrest, but provision is made for suit _in personam_
against the government. Vessels of the Panama Railroad, although it is a
government agency, are subject to suits _in rem_.
=2. When Proceedings in Rem Will Lie.=--Generally speaking, every
maritime lien includes the right to enforce it by a proceeding _in rem_.
The person who has a maritime lien upon a vessel is entitled to proceed
directly against her in a court of admiralty for the locality in which
she happens to be. Thus in all suits by materialmen for supplies,
repairs, or other necessaries; in all suits for mariners' wages,
pilotage, collision, towage, hypothecation, bottomry, salvage, and the
like, the process may be _in rem_.
=3. The Libel.=--No process or writ can be issued by a court of
admiralty before a libel is filed in the clerk's office. A libel is the
statement of the party's claim and the relief or remedy which he
desires. It states the nature of the cause, for example, that it is of
contract, or of tort or damage, or salvage, as the case may be; the
ship, or property, against which the claim is made and that it is, or
soon will be, within the district; the facts upon which the claim is
based; and the relief sought. For convenience, it should be expressed in
concise paragraphs or articles, and, of course, must state a case within
the jurisdiction of the court.
=4. The Writ or Process.=--Upon a libel being properly filed in the
office of a clerk of a district court of the United States, a writ of
attachment is prepared and delivered to the marshal which commands him
to arrest and take the ship, goods or other things into his possession
for safe custody; and to cause public notice thereof, and of the time
fixed for the return of the writ and the hearing of the cause, to be
given in such newspaper within the district as the court shall order. It
is then the duty of the marshal to obey the writ, arrest the property
and give due notice according to law.
=5. Owner's Rights.=--The owner whose vessel is seized in admiralty is
entitled to release her immediately by giving a bond to secure payment
of the libellant's claim. This bond may be in double the amount of the
claim, or for such smaller amount as may be agreed upon between the
parties, or for the appraised value of the ship. In practice, such bonds
are usually arranged between the parties and their proctors[32] without
the expense and delay incident to an actual seizure. It is not unusual
to notify the owner of the commencement of the suit before process is
issued and he will generally agree to appear and bond accordingly. This,
however, is only courtesy and not a matter of right. At the same time
the amount of the bond can be arranged and, when filed, the suit
proceeds as if there had been an actual arrest and bonding. The bond
takes the place of the ship for all legal purposes and she proceeds
about her business entirely freed from the lien in suit.
The owner must establish his status with the court by filing a claim.
This is a formal statement on oath of his title to the property. If he
desires to contest the libellant's demand, he must file an answer to the
libel. The cause is then at issue and will be disposed of by the judge
in due course. The time will depend largely on the parties.
=6. Default.=--If the owner does not claim and bond his ship on the
return-day named in the writ, the libellant may take his default. The
court then investigates the demand _ex parte_ and makes an appropriate
decree for the sale of the ship to satisfy the amount due.
=7. Interlocutory Sales.=--When the property remains in the custody of
the marshal and is subject to undue expense or risk of loss, the court
may order its immediate sale for the benefit of all concerned. The
proceeds are paid into the registry of the court and represent the ship
for all purposes up to the time of the sale. The purchaser at such a
sale, as well as at a sale under a final decree, obtains a clear and
perfect title, if the proceedings have been in accordance with law. All
claims and liens are relegated to the proceeds.
=8. Intervenors.=--All persons legally interested in a ship are entitled
to appear and be heard by the court when she is in the custody of a
court of admiralty. Such are parties having other maritime liens upon
her and mortgagees. Their claims are presented, pursuant to the public
notice given by the marshal, by intervening libels or petitions and they
are called intervenors. The form of such petitions is substantially like
that of an original libel. Generally when an owner will not bond his
ship, she has become heavily in debt and all her creditors will be
obliged to intervene in the proceeding in order to protect their
accounts. A sale is accomplished and the proceeds brought into court as
soon as possible. Distribution is then made between the various lienors
according to their rank and priority. Any surplus will belong to the
owner and he may obtain it at any time before it is covered into the
Treasury of the United States as unclaimed funds.
=9. Costs and Expenses.=--These are largely within the control of the
parties and become heavy only to the extent that the court is burdened
with the care of the property or its proceeds. If promptly bonded, the
necessary costs are very small. If the marshal remains in possession,
his costs will include ship-keeper's charges and all other expenses
which the situation occasions. If he sells, there will be his commission
on the amount realized, 2-1/2 per cent. on sums under five hundred
dollars and 1-1/2 per cent. on sums in excess; the clerk will be
entitled to a commission of 1 per cent. for handling the proceeds. His
other necessary costs are small. Where, however, there is prolonged
litigation, the expenses may become very heavy, especially in respect of
stenographer's accounts and the fees of commissioners to whom matters of
detail may be referred.
=10. Proceedings in Personam.=--Suits may also be brought against a
defendant personally in the admiralty, where the subject matter is
maritime and a personal liability exists. Such a liability always
attaches to the person who made the contract or did the wrong for which
the action is brought. In a few instances of maritime torts, like
assaults and beatings on the high seas, the remedy is _in personam_ only.
=11. Process in Personam.=--The writ here is usually a simple monition
or summons to appear and answer the libel, like the ordinary writ in an
action at law, but where the defendant cannot be found within the
district, it may contain a clause for the attachment of his goods and
chattels, or garnishment of his credits and effects. This proceeding is
often very effective in obtaining security for the judgment when the
proceeding _in rem_ cannot be employed.
=12. Proceedings in Limitation of Liability.=--The shipowner is entitled
to limit his liability on account of the ship to its value in many cases
and the General Admiralty Rules promulgated by the Supreme Court provide
a very valuable proceeding for this purpose. In substance, whenever an
owner is threatened with a multiplicity of suits on account of damage
done by his ship, or by a claim or claims in excess of her value, and he
is not personally liable on such account, he may file a petition in the
proper court and surrender the ship to a trustee or give a bond for her
appraised value. All other suits are thereupon stayed and all creditors
must present their claims in the proceeding which he has so instituted.
In effect, it is a maritime bankruptcy by which the ship, or her value,
is surrendered to creditors for _pro rata_ division and the owner goes
free from further claims. It is the application of one of the underlying
doctrines of the maritime law by which a shipowner, on abandoning the
ship, can protect himself from further responsibility on her account.
[32] In admiralty an attorney is called a proctor. The term is being
generally abandoned.
APPENDICES
APPENDIX I
SUMMARY OF NAVIGATION LAWS OF THE UNITED STATES
JASPER YEATES BRINTON[33]
I. SHIP REGISTRY 228
General 228
Registry and Nationality 228
Registry and the Flag 229
Registry and Ownership 229
Vessels Entitled to American Registry 229
Forms of Register, Enrollment and License 231
Restrictions as to Coastwise Trade 231
Procedure for Documenting Vessels 232
1. Presentation of Carpenter's Certificate 232
2. Surveyor's Certificate of Measurement 232
3. Securing and Marking of Official Number 233
4. Marking of Official Tonnage 233
5. Marking of Name and Home Port 233
6. Evidence that Number, Tonnage, Name and Home
Port are Properly Marked 234
7. Owner's Oath 234
8. Master's Oath 235
9. Special Oath by a Corporation 235
10. Evidence of Outstanding Certificate of Inspection 235
Bill of Sale Not Required on Original Documentation 236
Surrender and Reissue of Documents 236
II. RECORDING OF BILLS OF SALE 237
III. PREFERRED MORTGAGES UNDER MERCHANT MARINE ACT 238
IV. CHANGE OF NAME 240
V. ENTRY AND CLEARANCE 241
VI. SHIPPING ARTICLES 242
VII. LICENSING AND QUALIFICATIONS OF OFFICERS 244
VIII. QUALIFICATIONS OF SEAMEN 245
Age 246
Service and Physical Qualification 246
Lifeboat Men 246
Language 246
IX. NATIONALITY OF OFFICERS AND CREW 246
Officers 246
Crew 247
X. WAGES 247
Advances 247
XI. WATCH AND WATCH AND WORK-DAY 248
XII. PROVISIONS FOR CREW 249
Sleeping Quarters 249
Washing Places 249
Provisions Scale 249
Hospital Accommodations 250
Warm Room and Woolen Clothing 250
XIII. PERSONAL INJURIES TO SEAMEN AND RECOVERIES FOR DEATH 250
XIV. OFFENSES BY SEAMEN 251
Mutiny, Desertion and Disobedience 251
Miscellaneous Offenses 252
Assistance in Case of Collision 252
XV. RULES OF THE ROAD 253
XVI. PILOTAGE 253
XVII. LENGTH OF HAWSERS 254
XVIII. INSPECTION OF STEAM VESSELS 255
Barges 255
The Certificate of Inspection 255
Manning of Inspected Vessels 256
XIX. REGISTER TONNAGE 256
XX. TONNAGE TAXES 257
XXI. NAVIGATION FEES 258
XXII. ANNUAL LIST OF MERCHANT VESSELS 258
XXIII. NUMBERING OF UNDOCUMENTED MOTOR BOATS 258
XXIV. ADMINISTRATION OF NAVIGATION LAWS 259
Commissioner of Navigation 259
Steamboat Inspection Service 259
Shipping Commissioners 260
XXV. THE SHIPPING BOARD 260
SUMMARY OF THE NAVIGATION LAWS OF THE UNITED STATES
While the navigation laws of the United States are in many respects the
most advanced and progressive of any in the world, the form in which
they exist is far from satisfactory and is a serious handicap on their
usefulness. They are voluminous and complicated and in much confusion.
Even on comparatively simple topics it is often impossible to
distinguish the law of to-day from the law of yesterday.
The reason is not hard to find. It lies in the fact that these laws
represent one of the oldest bodies of statute law in the books, and for
well over a century have been subject to a steady piecemeal amendment,
but with little or no attempt at revision or codification. The result is
that on almost every subject there is a bewildering overgrowth of
laws--law after law covering and partly modifying, but seldom explicitly
repealing, the older law, which thus remains as a stumbling block to
even the expert reader.
A complete revision is urgently needed and has been undertaken by the
Shipping Board. In the meantime, it is of course desirable that
knowledge of the laws as they exist shall be made as conveniently
accessible as possible and the summary herewith is presented as a
contribution towards that end. It does not pretend to be either complete
or exhaustive, but merely undertakes to cover very generally the
principal topics, with a somewhat more extended reference to the
practical aspects of ship registry as embodied not only in the laws but
in the regulations and practices which have grown up around them.
Most of the statutes which have been summarized herein except the recent
Merchant Marine Act (Jones Bill) and other laws of this year will be
found in the 600 page compilation of the Navigation Laws (1919) prepared
with the thoroughness and accuracy to be looked for from any work issued
under the direction of the present Commissioner of Navigation. It may be
procured from the Superintendent of Documents, Washington, at the cost
of one dollar. Subject to the obvious limitations on any compilation
which must necessarily include a large body of conflicting and
practically obsolete statutes, the work is in every respect admirable.
The volume, however, is confined to statute law, and for much of the
practical information covering those branches of operation of ships
involving the agency of the customs service, including the documentation
of vessels, reference must be had to the Customs Regulations, the last
edition of which was published under date of 1915, and which may also be
secured from the Superintendent of Documents.
In addition to these two principal compilations reference should also be
made to the series of Rules and Regulations of the Board of Supervising
Inspectors, issued by the Steamboat Inspection Service, Department of
Commerce, to the various publications of the Department covering the
Rules of the Road, the International Rules, the Inland Rules, and the
Pilot Rules, respectively, together with the notable series of pamphlets
issued by the Department from time to time, covering such special
subjects as the Measurement of Vessels, the Comparative Study of
Navigation Laws of the Maritime Nations, and other similar topics. So
far as the writer is aware, however, there is no volume which contains
any general summary of the whole body of our navigation laws.
I. SHIP REGISTRY
=General.=--Under the power to regulate commerce Congress, among its
earliest enactments, adopted a system of ship registry for
American-owned bottoms and created the class of vessels to be known as
"vessels of the United States." The purpose of establishing this system
was the double one of encouraging domestic commerce and of building up
our national defense. It did not require and (with certain war-time
exceptions) has never required that American-owned ships should be
registered, but by imposing prohibitory penalties on foreign trade in
American-owned vessels which are _not_ registered, and by closing the
coasting trade entirely to all except American-owned vessels (or vessels
operating during war time under special permission of the Shipping
Board) it made the securing of appropriate documents--a register--an
enrollment and license--or a simple license, as the case may be,--a
practical necessity for American-owned vessels engaged in American
trade. In passing it is to be noted that while a ship's registry is a
special document, distinguished from the enrollments and licenses of
smaller vessels, the word _registry_ is commonly used as covering
generally all three classes of documentation.
=Registry and Nationality.=--While vessels, like citizens, are commonly
said to have a nationality, their _nationality_ is not necessarily a
matter of _registry_. Nationality means rather--To what country does the
ship in fact belong and to whose protection is she entitled? As far as
the United States is concerned this nationality--this right to
protection--depends upon _ownership_.
Therefore, if a ship is actually owned by American citizens, her
nationality is American, and she is entitled to the protection accorded
to American property all the world over, regardless of the fact that for
any reason she may not be entitled to, or may not desire to take,
American registry.
=Registry and the Flag.=--In the same way, the right to fly the American
flag is not dependent upon American registry, but upon American
ownership. The flag is only the symbol of nationality and of a right to
protection. It is the signal to other vessels at sea--conveying
information as to nationality, just as her other signals are used to
convey the name of the private owner or of the line to which she
belongs. It follows that the American flag may be flown upon any vessel
owned by American citizens. For many years vessels of this character
flying the American flag have been familiar in the trade in the Far and
Near East.
The rule as to the use of a flag is somewhat different and more strict
in England. Under the Merchant Shipping Acts the use of a British flag
on board a ship owned either in whole or in part by persons not lawfully
qualified to own a British ship, subjects the vessel to forfeiture. But
there are no such provisions in the law of the United States and
questions as to the improper use of the flag of this country upon
vessels have not arisen, although occasional diplomatic negotiations
have been undertaken to prevent the use of the American flag in foreign
countries. Generally speaking it may be said that the United States has
been extremely lax in regulating the use of her flag.
=Registry and Ownership.=--Just as registry is not necessary to give
nationality, with its corresponding right to protection, so it is true
that the transfer of title to ships is not dependent upon its registry
laws. While title to a ship must be passed by bill of sale, this does
not depend upon any requirement of the United States law, but arises out
of the general maritime law. It is only in the case of ships that are to
be registered or enrolled that it is necessary that the transfer be made
according to the particular and very specific form prescribed by the
registry acts.
=Vessels Entitled to American Registry.=--Under the early ship registry
acts, and for a period of over 120 years, American registry was confined
to American-built ships. Such alone were "deemed vessels of the United
States, and entitled to the benefits and privileges appertaining to such
vessels." As already noted, these privileges were, in effect, the right
to engage in American trade.
In 1892, a special act was passed granting American registry to certain
foreign-built vessels of the American Line under conditions as to the
building of other vessels, but this was a special and very limited
proviso.
The Panama Canal Act of 1912, however, made a radical change in our
policy and opened American registry to foreign-built vessels not over
five years old, owned by American citizens, although denying to these
vessels the privilege of entering the coasting trade.
The Ship Registry Act of 1914 went a step farther and removed the
limitation as to age, and also authorized the President to suspend, as
to these vessels, the rigorous provision that the watch officers of all
vessels engaged in foreign trade should be citizens of the United
States. This authority was exercised by the President and many such
vessels have been registered.
In 1915 a law was passed to facilitate the transfer of American-owned
vessels from foreign to domestic registry by a repeal of the prohibitory
duties on such vessels on condition that before leaving an American port
they should secure the necessary documentation.
The Shipping Act of 1916, as amended in 1918, and again by the Merchant
Marine Act of 1920, further enlarged the scope of the registry laws by
providing that vessels (whatever their previous history) purchased,
chartered or leased from the Board by citizens of the United States may
be registered, or enrolled and licensed, or both enrolled and licensed,
as vessels of the United States and entitled to the benefits and
privileges of such documentation.
The various classes of vessels now entitled to registry under these laws
may be thus divided:
(1) American-built vessels which have always been American-owned;
(2) American-built vessels formerly owned by foreign owners, but
subsequently purchased by American citizens;
(3) Vessels captured in war lawfully condemned and owned by citizens;
(4) Vessels forfeited for breach of the laws;
(5) American-built vessels sold by the government to citizens, and
foreign-built vessels bought or chartered by the government and sold to
citizens;
(6) Vessels whose documentation is authorized by special act;
(7) Wrecked vessels purchased by citizens and repaired in American
shipyards on proof that the repairs are equal to three times the
appraised salved value; this is a special permission which is a dead
letter except as to the coastwise trade, as wrecks can now be admitted
to registry for foreign trade regardless of the amount of repairs;
(8) Vessels for foreign trade wherever built, wholly owned by citizens
of the United States;
(9) Vessels purchased, chartered or leased from the Shipping Board by
citizens of the United States.
Barges, lighters and other boats provided with sails or internal motive
power, if falling within these classifications, are entitled to
documents, as also barges and boats without sails or internal motive
power engaged in the Canadian trade or employed upon the marine waters
of the United States or engaged in the carriage of passengers.
The following classes of vessels are not within the provisions of the
registry laws and therefore require no documents:
(1) Boats or lighters not masted, or if masted and not decked, employed
in the harbor of any town or city and not carrying passengers.
(2) Barges or canal boats or boats without sails or internal motive
power employed wholly upon canals or on the internal waters of the state
and not engaged in trade with contiguous foreign territory and in
carrying passengers;
(3) Barges or boats without sail or motive power, plying on inland
rivers or lakes of the United States, also not engaged in trade with
contiguous foreign territory and in carrying passengers;
(4) Vessels plying waters wholly within the limits of the state having
no outlet into a river or lake on which commerce with foreign nations or
among the states can be carried on.
=Forms of Register, Enrollment and License.=--The Law provides for three
classes of documents; (1) A Register; (2) An Enrollment and License; (3)
A License.
Originally the license, which is applicable only in the coasting trade,
was an altogether separate document from the enrollment, the form of
each document being provided by statute. In 1906, however, the two
documents were consolidated into one, so far as enrolled vessels were
concerned, leaving the license only to be required in the case of
smaller vessels. As the law now stands these documents are distinguished
as follows:--
_Registry_ is _required_, for vessels engaged in the foreign trade and
in the trade with our insular possessions, except Hawaii and Porto Rico,
and is _permitted_ to vessels engaged in the domestic trade under
certain requirements as to entry at the Custom House when laden with
certain commodities, etc. There is but a single form of register.
_Enrollment of License_ is _required_ for vessels of twenty tons or over
when engaging in the coasting trade. Separate forms are issued for the
coasting trade or fisheries, and for yachts.
_License_ alone is _required_ for vessels between five and twenty tons
when likewise engaged in the coasting and fishing trade.
Vessels of less than five tons may not be licensed, nor may pleasure
vessels of less than sixteen tons be documented except under special
instructions from the Department of Commerce.
In general form and purpose these documents closely resemble each other
and further consolidation and simplification is badly needed.
=Restrictions as to Coastwise Trade.=--From 1817 until the recent war
the coastwise trade of the United States was limited to vessels of the
United States. This restriction, however, was removed by the shipping
Act of 1916. Under this act (§ 9) the Shipping Board was authorized
generally (with certain very limited exceptions) to purchase, lease and
charter vessels suitable for its purposes, regardless of whether
foreign-built or not, and also to sell and charter the same to citizens
of the United States, such vessels being entitled to American registry.
As to all such vessels the Act specifically provided that they should be
permitted to engage in the _coastwise_ trade. This privilege was also
extended to vessels owned, chartered or leased by the Emergency Fleet
Corporation (see § XXV, below).
In addition, under an act passed in 1917, the Shipping Board was given
authority in its discretion to permit vessels of _foreign registry_, and
foreign-built vessels which had been admitted to American registry under
the Act of 1914, already referred to, to engage in coastwise trade
during the war, and for three months thereafter.
This latter act has been in terms repealed by the Merchant Marine Act of
1920, but with the proviso (§ 22) that all foreign-built vessels
admitted to American registry, which were owned on February 1, 1920, by
citizens of the United States, and all foreign-built vessels owned by
the United States on the date of the signing of the Act (June 5, 1920),
when sold and owned by citizens of the United States, may engage in the
coastwise trade so long as they continue in such ownership.
The general policy above outlined is supplemented by a further proviso
of the Merchant Marine Act (§ 27) forbidding the transportation of
merchandise between points in the United States, or such of its
possessions as are subject to the operation of the coastwise laws, in
any other than documented vessels of the United States, owned by
citizens of the United States, except in the case of the vessels to whom
the privilege has been extended by the provisions above referred to.
=Procedure for Documenting Vessels.=--Marine documents are issued by the
Collectors of Customs for the various collection districts, one district
frequently including several ports. The District of Philadelphia, for
instance, includes Camden, Gloucester City, Chester, Somers Point,
Tuckerton, Thompson's Point, Wilmington and Lewes.
Practically each step in the process of securing the ship's papers is
marked by the production or issuance of one or other of a number of
important documents. These steps are as follows:
_1. Presentation of Carpenter's Certificate._--The Carpenter's
Certificate, sometimes referred to as the Master Carpenter's Certificate
or Builder's Certificate, is the starting point of the vessel's official
status in the eyes of the government, and is the first document to be
produced before the Collector. It is the vessel's birth certificate, and
is required in order to fix the origin of the vessel, to secure and
place on record the best evidence as to the date and place of its
building, the name of its builder, and its general description, given
under the oath of the builder. For the purpose of this certificate the
time of building is the time of completion; the place of building is
that where the hull was built. Both of these facts must appear on all
marine documents. The Carpenter's Certificate is not a document of title
and does not of itself vest any interest in the person holding it. It is
sufficient to authorize the vessel to be removed from the district where
she has been built to another district in the same or an adjoining State
where its owner resides, provided it be in ballast only. This document
is filed of permanent record in the Custom House where the vessel
receives her papers. The difficulties frequently encountered in the way
of securing the certificate of the builder himself have led to the
adoption of a regulation permitting other competent evidence
establishing the same facts, subject to the approval of the Commissioner
of Navigation.
_2. Surveyor's Certificate of Measurement._--The measurement of the boat
contained in the Carpenter's Certificate not having been made by a
government officer, is not an official measurement. It is therefore
specifically required that there shall be produced a certificate of such
an official measurement made, prior to every registry, by the Surveyor
of Customs or by some person appointed by him, at the port where the
vessel is, or if there be no such officer, by some one appointed by the
Collector. The Surveyor is the "outside man" in the Custom House
administration, the official who superintends and directs the inspectors
and weighers, who visits all vessels as they arrive in port each day,
and who incidentally is charged with this particular duty of measuring
vessels for register. His certificate of measurement is required to show
not only the measurement of the vessel, i.e., length, breadth, depth,
etc., but her build, her tonnage, number of decks and masts. It is also
required to state that the vessel's name and the place to which she
belongs are painted on her stern. Once measured, it is not necessary
that the vessel shall be measured again upon each successive register.
Like all the other documents incident to the registration of the vessel,
the form of this document is provided by the government and must be
countersigned by an owner, or by the master, or by the owner's agent.
_3. Securing and Marking of Official Number._--The Secretary of Commerce
has been authorized to provide a system of numbering all documented
vessels. An application for such number must be made through the
Collector of Customs by the master or owner. Each vessel so numbered
must have her number "deeply carved or otherwise permanently marked on
her mainbeam," preceded by the abbreviation "No."
Prior to 1866 the penalty for the violation of this requirement was the
severe one of forfeiting her status as a vessel of the United States.
To-day the penalty is a fine of $30 upon every arrival of the vessel in
a port.
_4. Marking of Official Tonnage._--The law also requires that the net
tonnage of a vessel shall be deeply carved or otherwise permanently
marked on her mainbeam. This tonnage--representing the entire cubic
contents of the interior of the vessel, excluding the spaces occupied by
the crew and the propelling machinery, and known as the "registry
tonnage" or "register tonnage"--is defined by elaborate provisions of a
law passed in 1864, which has been several times amended. It is fixed in
the first instance by the surveyor or other officer measuring the boat.
_5. Marking of Name and Home Port._--The law requires that the name of
the vessel shall be marked upon each bow and upon the stern, and that
the home port shall also be marked upon the stern. These names may be
painted or gilded, or they may consist of cast or carved Roman letters
in a dark color on a light ground, or in a light color on a dark ground,
secure in place, distinctly visible, and not less in size than four
inches. Originally the names of vessels were required to be in white on
a black ground. In 1875 yellow and gilt letters were permitted. The rule
as we now have it dates from 1891. The penalty for violation of this law
is $10 for each name which is omitted.
In addition to this, every steam vessel of the United States is required
to have her name conspicuously placed in distinct, plain letters not
less than six inches high, on each outer side of the pilot house, and in
case the vessel is a side-wheeler, then also upon the outer side of each
wheel-house. "Double-enders" may place the names on the parts
corresponding to the bow and stern; and on vessels whose sterns do not
allow sufficient space for lettering, the letters may be placed on
adjacent parts so as to conform as closely as possible to the
requirements, and provided always that the home port shall be marked at
_one_ end of the vessel.
Scows, barges and other vessels with square bows may be marked on the
bow instead of the side, where such marking would be speedily worn out
by chafing against other vessels.
The "home port" as required to be marked on the stern of the vessel, may
mean either the _port_ where the vessel is documented, _or_ the place in
the _same_ district where the vessel was _built_, _or_ where one or more
of the _owners reside_. From this it follows that the home port need not
be the port of documentation, for, as already noted, the law is that the
vessel must be _registered_ in the district which includes the port to
which the vessel at that time _belongs_, such port being defined by law
as that at or nearest to which the owner, or if there be more than one,
the managing owner of the vessel, usually resides.
Questions as to what is a vessel's "home port" frequently arise in
connection with contracts for repairs and supplies and liens arising
from the same. As will be seen the port of registry and the home port
may often be quite different places.
_6. Evidence that Number, Tonnage, Name and Home Port are Properly
Marked._--The Surveyor's Certificate under the form now in use should
have covered all of these various points. However, if for any reason
they have not been so covered, as for instance, if the vessel is out of
the district in which she is being documented, the law requires that
evidence be produced by the owner that all these requirements have been
complied with. Thus, if the vessel is elsewhere, the owner may make an
affidavit that the necessary has been done, but as soon as the vessel
arrives within the vessel's home district, where the inspection
certificate of a customs officer can be secured, such a certificate must
be produced.
_7. Owner's Oath._--Before a vessel can be documented, the owner, or an
officer or agent of the owner, whether individual or corporate, must
make an affidavit disclosing the general facts as to the ownership of
the boat, giving the names of its various owners, their proportions of
ownership, and the citizenship of each of them, etc. It must also
include a statement as to the name and tonnage of the vessel, and the
place and nature of her construction. This oath is an absolute
requirement, and if the vessel is documented without it, the document is
void, and the vessel is not entitled to be considered a vessel of the
United States.
It is also required that the owner's affidavit shall name the master of
the vessel together with a statement that the master is a citizen, with
a note of the means whereby he acquired his citizenship. The person thus
named by the owner is thereby deemed her master for all legal purposes,
regardless of the question of his competency, or as to who actually
commands the vessel, but no name of a master who has not the necessary
license to command a vessel of the class in question will be accepted by
the Collector. Thus, while in the case of a _barge_ any citizen may be
_named_ as the master, or one citizen may be named as master for any
number of barges, in case of a tug or larger vessel requiring a licensed
master, the person named as master must be licensed and qualified to
perform this duty. This, however, is entirely irrespective of whether he
has in fact assumed or does in fact assume actual command over the
vessel. For such purposes the command may be a nominal one.
The importance of this document is illustrated by the fact that the
penalty for a statement knowingly false is a forfeiture of the vessel,
or of its value, to be recovered from the person by whom the oath was
made.
_8. Master's Oath._--In addition to the oath of the owner as to the name
and qualification of the master, it is specifically required that if the
master is within the district where the registry is made at the time of
application for it, an oath must be taken by _him_, instead of by the
owner, covering his citizenship. In the case of a false oath by the
master the vessel is not forfeited, but the master is liable to a
penalty of $1,000. Every change of master must be reported at the first
port and indorsed on the document.
_9. Special Oath by a Corporation._--Under recent legislation a special
oath is required in the case of corporations, covering any question of a
possible foreign interest in the corporation. This oath must set forth
"that the controlling interest in the said company free from any alien
trust or fiduciary obligation, or any understanding that it may be
exercised directly or indirectly on behalf of any alien, is owned by
citizens of the United States, and that the President and Managing
Directors are citizens of the United States and that the corporation is
organized under the laws of some particular State".
_10. Evidence of Outstanding Certificate of Inspection._--It is
specifically forbidden to issue a ship's document on any vessel subject
to the inspection laws until a copy of the certificate of inspection as
issued by the Local Inspectors, has been filed with the Collector of
Customs. If the original certificate is not available, a certified copy
can always be secured from the office of the proper Collector of Customs.
=Bill of Sale Not Required on Original Documentation.=--The foregoing
completes the steps or documents necessary for the original registration
of a vessel.
It will be observed that no reference has been made to a bill of sale.
This is because no such bill is required by law to be produced at the
first registration. In fact the only bill of sale recognized by statute
is a bill which _itself_ contains a copy of the ship's document, and
therefore such a bill could not be produced before the registration had
actually taken place. All that is required in the first instance,
therefore, is the Carpenter's Certificate with the affidavits as to
ownership, etc. These documents are taken as establishing the ownership,
and laying the foundation for registry in a particular name. However,
the bill of sale may be actually in existence, having been given either
by the builder himself or by some one who had subsequently acquired
title to the vessel before her documentation. In such case the bill of
sale should be produced to complete the chain of title, and will be
retained at the Custom House with the Carpenter's Certificate as a link
in the chain. But it will not be recorded, for the law makes no
provision for the recording of bills of sale except in the sense of
transfers of documented vessels, as hereafter referred to.
=Surrender and Reissue of Documents.=--The foregoing summarizes the
steps to be followed in the case of an _original_ registration. But on
every change in the status of the vessel a new registry must be secured,
and the vessel must be documented anew. This is the case where a vessel
is _sold_ in whole or in part to a citizen of the United States, or
where it is _altered_ in whole or in part, by being rebuilt or
lengthened or built upon, or is changed from one classification or
denomination to another, by alteration in its mode or method of rigging
or fitting. It also applies to the case of a change of name as hereafter
referred to, and, in case of corporations, to the death of the officer
in whose name vessel is documented.
It should be borne in mind that the penalty for failure to effect such a
new registration is the severe one that the vessel shall cease to be
considered a vessel of the United States. No time limit for the accruing
of this penalty, however, has been fixed by law.
In case of such new registration the process is the same as above
outlined, but omitting the earlier steps relative to the measurement and
marking of vessel, official number, etc., all of which are certified to
by the previous document.
In the case of the _sale_ of the vessel, it is of course the bill of
sale that furnishes the foundation for the transaction, which must be
accompanied by the owner's and master's oaths as already outlined.
The bill of sale, as the all-important and indispensable document, must
be made to comply strictly with the requirements covering registry, the
most important of which is that it will recite at length the last
previous certificate issued to the vessel. This proviso is of great
importance in England. The inaccurate recital of such a certificate
voids the sale entirely. In the United States the penalty is not so
severe, but still severe enough, as the ship is deprived of her American
character.
The bill of sale when produced is recorded in the office of the
Collector of Customs in accordance with the law hereinafter referred to,
and is returned to the owner producing it, as in the case of any other
bill of sale which the owner may desire to have recorded.
It frequently happens that it becomes necessary to secure new documents
for a vessel which is distant from the port where her new owners reside,
and where it is desired that she shall be documented. In such case it is
often impractical at the time to secure the outstanding papers for
surrender. The practice is to secure certified copies of the same either
from the office of the Collector where they were issued or from the
office of the Commissioner of Navigation at Washington, giving the
necessary oath for the production of the original documents when they
come to hand.
It also frequently happens that the certified copies, or indeed
sometimes the original documents themselves, do not bear upon their
face, as they should, a notation as to the date of expiration of the
certificate of inspection of the vessel. In this case some evidence of
an outstanding inspection must be produced to the Collector. The
simplest plan is to secure, by wire if necessary, a statement from the
appropriate Collector of Customs that such an inspection is outstanding.
The law is very strict on the surrender of the old documents upon the
issuing of new ones, as also in those cases where a ship loses her right
to continue as a vessel of the United States. The old law, passed in
1792, provided for the giving of a bond by the ship's husband or the
acting or managing owner, varying in amount according to the tonnage of
the boat from $400 to $2,000, guaranteeing that the registry should be
used only for the vessel for which it was granted, and should not be
sold, lent or otherwise disposed of, and that in case the vessel were
lost or taken by an enemy or otherwise prevented from returning to the
port, the certificate, if preserved, should be delivered up within eight
days of her return to port, etc. The present law substitutes for this
bond a penalty of $500 and declares the Certificate of Registry to be
void after a violation of any of the requirements as to its surrender.
It frequently happens that a document is lost or wrongfully withheld
from the possession of the owner. In this case, upon the oath of the
master or other person having charge of the vessel, a new document may
be issued either temporary in form, if the vessel is out of her own
port, or permanent, if she is in her own port.
II. RECORDING OF BILLS OF SALE
The present law on the subject of recording bills of sale is included in
the general mortgage provisions of the new Merchant Marine Act, under
which it is provided that no sale of a vessel shall be valid against a
ship unless the bill of sale is recorded by the Collector of Customs in
an official register, which is required to show
(1) The name of the vessel;
(2) The names of the parties to the sale;
(3) The time and date of receiving the bill of sale; and
(4) The interest in the vessel so sold.
It is also provided that no bill of sale can be recorded unless the
interest of the grantor in the vessel is stated, also the interest sold,
nor unless the bill has been acknowledged before a notary public or
other officer authorized to take acknowledgements. In the case of a
change in the port of documentation, no bill of sale may be recorded at
the new port unless a certified copy of the record of the vessel at the
former port is furnished by the collector of that port.
III. PREFERRED MORTGAGES UNDER MERCHANT MARINE ACT
The law in regard to ship mortgages is highly technical and reference
only will be made here to the general provisions of the Merchant Marine
Act which makes far-reaching changes in the existing system in an effort
to give added value to mortgage security on a ship, a form of security
which heretofore has been of very limited value on account of the
subordination of the mortgage, which is not a maritime contract, to all
maritime liens, whether arising out of contract or tort.
The present law gives to a duly recorded preferred mortgage priority
except as to (1) liens arising prior to the recording of a mortgage in
strict conformity to the provisions of the act; (2) liens for damages
arising out of tort; (3) liens for wages of stevedores when employed
directly by the owner, operator, master, ship's husband or agent of the
vessel; (4) liens for wages of the crew of the vessel; (5) liens for
general average; (6) liens for salvage, including contract salvage; and
(7) court costs and expenses.
If a mortgage covers a ship of over 200 gross tons the material facts
regarding it must be endorsed on the ship's papers. There must also be
filed an affidavit that the mortgage was made in good faith, without the
intent to delay or defraud. It must appear that the mortgagee is a
citizen of the United States and that the mortgage does not stipulate
that the mortgagee waives its preferred status. If the mortgage includes
property other than a vessel it must provide for the separate discharge
of such property by the payment of a specified amount, and if it
includes more than one vessel it must similarly provide for the separate
discharge of each vessel on the payment of a specified amount, in
default of which, the court, in a suit on the mortgage, is to determine
the proportionate charge.
Two certified copies of every preferred mortgage are to be delivered by
the collector to the mortgagor, who is required to use due diligence to
retain one copy on board the vessel, and to cause it and the ship's
documents to be exhibited by the master to any person having business
with the vessel which may give rise to a maritime lien or to the sale of
the vessel. Upon request, the master is required to exhibit to such
person the ship's documents and this copy of the mortgage. Upon request
of the mortgagee, the mortgagor is required to disclose in writing,
before the execution of any preferred mortgage, the existence of any
maritime lien prior to the mortgage, that is known to the mortgagor,
and, without the consent of the mortgagee, the mortgagor is forbidden,
after the execution of the mortgage and before the mortgagee has had
reasonable time to record the mortgage and have the necessary
endorsements made, to incur any obligations creating liens on the vessel
other than those for wages, for general average or for salvage.
The law permits the preferred mortgage to bear any rate of interest
agreed to by the parties. It provides severe penalties upon the master
for failing to exhibit the ship's documents or the copy of the mortgage,
when demanded, and permits local inspectors to suspend or cancel the
master's license for any such violation. As to the mortgagor who fails
to make disclosure of liens already referred to, or who incurs new liens
with attempt to defraud, the law provides a maximum fine of $1,000 and
imprisonment for two years, and makes the mortgage then immediately
payable. It also subjects the collectors of customs and the mortgagor to
personal liability for loss occasioned by their failure to perform their
duties under the act and opens the federal courts to such suits.
Under the same act jurisdiction of all suits to foreclose a preferred
mortgage is vested exclusively in the District Courts of the United
States. Authority is also given to bring suit _in personam_ in the
admiralty, in the United States District Courts, against the mortgagor.
The surrender of the documents of mortgaged vessels without the approval
of the Shipping Board is prohibited, and the Board is directed to
withhold such approval unless the mortgagee consents to the surrender.
By resolution of the Board this law is interpreted as not applying to
cases in which owners merely renew licenses or change documents incident
to change of trade and where the ownership remains the same.
Elaborate provisions are also to be found covering the formal procedure
in case of sales of mortgaged vessels, together with a provision that no
rights under a mortgage shall be assigned to any person not a citizen of
the United States without the approval of the Board, and that no vessel
shall be sold in a suit in the admiralty to any person who is not a
citizen.
The legality of the provisions conferring upon the federal courts the
right to enforce mortgage liens which are of a nonmaritime character, is
much debated and must await final decision by the Supreme Court. If the
court should decide against the legality of these provisions serious and
difficult questions will be presented as to whether the act as it now
stands will be effective to give preferred status to such a mortgage,
under the radically different procedure which must then be resorted to.
The act also revises the law on the subject of the creation of maritime
liens for necessaries. It provides that persons furnishing repairs,
supplies, towage, etc., on order of the owner or an authorized agent
shall have a maritime lien on the vessel without being required to prove
the credit was given to the vessel; defines the persons who are to be
presumed to have authority from the owner to procure repairs, etc.,
including the agents of a charterer; and permits the waiving of such
liens by those furnishing the supplies or services, subject to certain
existing specified rules of law.
IV. CHANGE OF NAME
The American law has always been very strict in regard to changing the
names of vessels. Such change can only be made by the Commissioner of
Navigation, and if made _by_ the master or owner or agent of the vessel
subjects the vessel to forfeiture. Since 1881 the Secretary of the
Treasury, and later, the Commissioner of Navigation, has been authorized
to permit the change of names of vessels "duly enrolled and found
seaworthy and free from debt." Under this law it became necessary to
secure a special act of Congress, which was frequently done, to change
the name of a mortgaged vessel. To cure this defect the law of February
19, 1920, which took effect thirty days after its passage, provides for
a change of name _by_ the Commissioner of Navigation upon compliance
with regulations issued by him.
All that is required in the first instance is a duplicate application by
the owner, addressed to the Commissioner of Navigation and forwarded to
him through the Collector of Customs at the home port of the vessel,
which is required to state the change desired, the reasons in support of
it, place of build, official number, rig, gross tonnage, and the owner's
name. It must also include a detailed list of liens of record from all
custom houses where the vessel has been previously documented, together
with the consent in writing of the mortgagee or other beneficiary under
each lien to the change desired. To this the Collector of Customs,
forwarding the application, must add his certificate as to liens on
record in his office, and must also state the date and place of last
inspection, a requirement which presupposes the presentation to him of
satisfactory evidence of the vessel's inspection, that is, either the
original certificate, or a certified copy of it, or a statement from the
office of the Commissioner of Navigation at Washington that such a
certificate is outstanding. In the case of vessels not usually
inspected, as, for instance, barges, inspectors are authorized to make
special examinations at the owner's expense and to furnish a certificate
of the seaworthiness of the vessel, the object of course being to
prevent old and unseaworthy vessels from concealing their condition and
antiquity by a change of name.
After the application has been passed by the Commissioner and permission
has been granted, it is required that the change shall be published in a
daily or weekly paper nearest to the port of documentation in at least
four consecutive issues, the cost of procuring the evidence and of
publication to be paid by the applicant. The permission for change is
not effective until this fee is paid. Upon its payment the issuance of a
new document is then required, which presupposes the production, as in
other cases, of the owner's affidavit, and of the master's affidavit, as
already explained.
The Collector thereupon records the change of name in his prescribed
reports and the transaction is completed.
Vessels formerly documented and which have been sold to the United
States and resold to citizens, must be documented under the old name and
official number, but vessels never before documented and sold by the
United States to citizens, may be redocumented under any name selected
that is approved by the commissioner.
In forwarding the application for change of name the Collector of
Customs is required to submit his recommendations giving any reasons for
or against the change. The usual reasons in support of a change are a
desire on the part of the company to carry out some established policy
in the naming of its vessels, or a desire to shorten or lengthen a name,
as the case may be.
The fee required is prescribed by law upon a sliding scale from $10 to
$100, according to gross tonnage, the former figure being for vessels of
99 gross tons and under, and the latter for vessels of 5,000 gross tons
and over.
V. ENTRY AND CLEARANCE
Whether or not a vessel is required to enter and clear depends, first,
upon whether she is registered, and second, upon her tonnage and the
service in which she is engaged.
_All_ vessels under _registry_ (as distinguished from vessels enrolled
or licensed) are required to enter and clear at every port, except when
bound from a point in one state to that of an _adjoining_ state.
If _not_ registered the question depends in the first instance upon the
size of the vessel. The law, as inherited from the early days, when
smuggling was frequent in small vessels, and it was considered important
to keep them under close supervision, makes a distinction between
vessels under twenty tons and those above that tonnage.
If _under_ 20 tons (and properly documented, that is licensed) and laden
wholly with American goods, or with foreign goods in packages as
imported not exceeding $400 in value, or of aggregate value not over
$800, they may trade from a customs district in one state to a customs
district in the same or an adjoining state, without entering or
clearing. But if _over_ twenty tons, such vessels are permitted to
trade, without entering or clearing, from one customs district in the
same Great District to another in the same Great District, or from a
State in one Great District to an adjoining State in another Great
District: Except as thus provided _all_ vessels engaged in the coasting
trade must enter and clear on their arrival at, or departure from, each
port.
The five Great Districts referred to have been defined as follows and
should not be confused with the customs collection districts:--
1. Atlantic coast from Canada to Mexico.
2. Porto Rico.
3. Pacific Coast.
4. Alaska.
5. Hawaii.
It is worth noting, however, that enrolled vessels which are not
_required_ to enter and clear _may_ do so, if they desire for any
purpose to have a record of their entrance and their clearance. This
might occur in the case of a vessel intending to undergo extensive
repairs and which might desire such a record to secure a rebate of
insurance premium.
In the case of vessels in the foreign trade or coming from one Great
District into another, and which are required to be registered, the law
requires the surrender and filing of manifests, bill of health and crew
list. When these formalities have been complied with, the vessel is
posted in the Custom House as entered. The manifest is produced to the
boarding officer and includes the original manifest issued at the
foreign port as well as a certified copy. The crew list is the list
issued by the Collector of the last port of clearance from the United
States, the Collector having retained the original sworn to by the
master, and having furnished the master with a certified copy. Bills of
health should have been secured from the American consular office at the
last port of touch, but bills are not required from ports where there is
no such officer. The ship's register is deposited in the Custom House
and obtained before clearance.
In the case of the clearance of a vessel in the coastwise trade, and
which is under registry, or which for any other reason desires a
clearance, the master is required to produce a coasting manifest to the
Collector. Upon making affidavit to this document the necessary
coastwise clearance and permit is issued. If, however, as in the case of
tugs, there is no cargo to be manifested, a coastwise permit is issued
upon affidavit by the master that the vessel contains no cargo whatever
other than sea stores.
In the case of vessels bound to foreign ports the documents take the
form of the customary foreign manifest, which is followed by the
official clearance in the form familiar to the export trade for a
hundred years.
VI. SHIPPING ARTICLES
Shipping articles are required in both the foreign and in the coastwise
trade, but with certain important differences.
In the _foreign_ trade the articles, which must be in government form,
are required to be signed before a Shipping Commissioner. This, however,
does not apply to trade between the United States and the British North
American possessions and the West Indies, and Mexico. The nature of
these articles is sufficiently familiar to require no comment. Generally
speaking the articles must contain the following particulars:--
1. The nature and, as far as practicable, the duration of the intended
voyage or engagement, and the port or country at which the voyage is to
be terminated.
2. The number and description of the crew, specifying their respective
employments.
3. The time at which each seaman is to be on board to begin work.
4. The capacity in which each seaman is to serve.
5. The amount of wages which each seaman is to receive.
6. A scale of the provisions which are to be furnished each seaman.
7. Any regulations as to conduct on board and as to fines, short
allowances of provisions, or other lawful punishments for misconduct,
which may be sanctioned by Congress or authorized by the Secretary of
Commerce, not contrary to or not otherwise provided for by law, which
the parties agree to adopt.
8. Any stipulations in reference to allotment of wages or other matters
not contrary to law. In 1898 this provision was repealed so far as it
relates to allotments in trade between the United States, Dominion of
Canada, Newfoundland, the West Indies and Mexico, and the coasting
trade of the United States, except between Atlantic and Pacific ports.
In the _coasting_ trade the law merely requires that every _master_ of a
vessel of fifty tons or over, bound from a port in one State to a port
in any other than a port in an adjoining State (with the exception of
voyages from the Atlantic to Pacific ports, which are included under
foreign trade) shall make an _agreement in writing_ with his seamen
declaring the voyage or term of time for which the seaman is shipped.
This agreement _may_ be signed before a Shipping Commissioner, but this
is not compulsory. The agreement required in the coasting trade requires
only the voyage, or term of time for which the seaman is shipped.
Question has been raised as to whether the requirement as to written
articles applies to cases where the "adjoining State" is reached by a
waterway running through other States, as, for instance, a voyage from
New York to Philadelphia. It seems clear, however, that the law should
be strictly interpreted, according to its terms, and that articles would
not be required on such a voyage.
In neither case does the law provide a limit in the matter of length of
voyage. In England shipping articles are frequently for long periods of
a year or more. Our practice is more limited. Clauses for one or more
continuous voyages are commonly found with a provision for the
termination of the contract by authority of the master, or any member of
the crew, upon twenty-four hours' notice.
A provision of law which sometimes occasions difficulty is that which
permits a seaman discharged "without fault on his part justifying such
discharge" and without his consent, before the commencement of the
voyage or before one month's wages are earned, to receive a compensation
of one month's wages. This question, like all other questions relating
to wages, comes up in the first instance before a Shipping Commissioner,
and in the hands of a competent commissioner there should seldom be any
difficulty in determining whether the discharge was or was not due to
the fault of the seaman or to his inability properly to perform his
duties.
The right to overtime is not provided for by statute, and before the war
was not generally recognized. In July, 1919, however, an informal
agreement was made between the Shipping Board and the steamship
association and the unions, under which this right to claim overtime is
recognized, provided it is covered by special contract.
VII. LICENSING AND QUALIFICATIONS OF OFFICERS
The law requires that masters, chief mates, second and third mates, if
in charge of a watch, engineers, and pilots of all steam vessels, and
the masters of sailing vessels of over 700 gross tons, and of other
vessels over 100 gross tons carrying passengers for hire, shall be
licensed and classified by the boards of local inspectors, and imposes a
penalty of $100 for employing an unlicensed officer or for an unlicensed
person to serve as an officer. These several boards of inspectors are
under the direction of a Supervising Inspector General appointed by the
President, and who is at the head of a Steamboat Inspection Service, and
are further under the supervision of ten supervising inspectors, to each
of whom is assigned general supervision of the work of inspection in a
particular district. The law imposes large discretion upon the local
inspectors in the examination and licensing of officers, limiting the
licenses to a period of five years, and giving the inspectors authority
to suspend licenses on proof of bad conduct, intemperate habits,
incapacity, inattention to duties or a willful violation of inspection
laws.
It is specially forbidden for any state or municipal government to
impose on pilots any obligation to secure a license in addition to that
issued by the Federal government.
One of the most important functions of the local inspectors is that
which concerns the investigation of collisions and complaints of
incompetency or misconduct committed by licensed officers. For this
purpose the inspectors have power to summon the witnesses, to administer
oaths and, upon hearing had after reasonable notice in writing to the
alleged delinquent, to suspend or to revoke his license, if satisfied
that he has been guilty of misbehavior, negligence or unskillfulness, or
has endangered life. Appeals from the decision of the local inspectors
may be made to the supervising inspector.
Where, however, the supervising or local inspector finds a licensed
officer on board a vessel under the influence of liquor to such an
extent as to unfit him for duty, or when a licensed officer uses abusive
language to an officer or insults him while on duty, the local inspector
is required to revoke the license of the offending officer without
further trial or investigation.
The rules of the board classify vessels according to the general
character of their trade, as
1. Ocean and coastwise.
2. Lakes, bays and sounds.
3. Rivers.
Qualifications for the officers properly vary according to these three
classes of service, to which is added a number of other special
classifications, as, for instance, ferry steamers on rivers, passenger
barges on rivers, etc.; or in the case of engineers, as, for instance,
condensing river steamer and noncondensing river steamer. These
requirements are set forth in full detail in the Regulations of the
Steamboat Inspection Service, with which all officers should be familiar.
Certain minimum requirements in the case of deck officers have been
prescribed by statute, the latest law being that of March 11, 1918,
which with certain minor exceptions, provides for one licensed master
for every vessel; for vessels 1,000 gross tons or over, three licensed
mates, and for vessels between 200 and 1,000 tons, two licensed mates;
for vessels between 100 and 200 tons, one licensed mate. The inspectors,
however, are permitted to increase these requirements if they consider
the vessel not sufficiently manned for safe navigation.
The same law of 1918 prohibits officers from assuming deck watches on
leaving port unless they have had at least six hours off duty within the
twelve hours preceding sailing; and also prohibits licensed officers on
both ocean and coastwise vessels from doing duty exceeding nine hours of
any twenty-four while in port, or more than twelve hours of any
twenty-four while at sea, except in case of emergency endangering life
or property.
VIII. QUALIFICATIONS OF SEAMEN
Before the passage of the Seamen's Act in 1915, there were no statutory
requirements as to the ability or experience of the crew, other than the
general requirement that the vessel should be properly manned. This act,
however, presents a body of highly stringent requirements. Its principal
requirements may be summarized as follows:
=Age.=--In the matter of age the act provides that in the deck
department of all vessels of more than 100 tons gross, except those
navigating rivers exclusively and the smaller inland lakes, there shall
be a certain proportion of seamen with the rating of able seamen, a
classification which is limited to those of nineteen years of age. The
lack of supply of able seamen has made it practically impossible to
enforce this requirement.
=Service and Physical Qualification.=--The act requires the physical
examination of able seamen in the deck department. It also divides able
seamen into two classes, those engaged in vessels operating on the high
seas and those engaged on the Great Lakes, smaller lakes, bays and
sounds. For the former three years' service at sea or on the Great
Lakes, etc., and an examination as to general physical condition, is
required, or one year's experience on deck at sea or on the Great Lakes,
etc., together with an oral examination on seamanship and for the latter
eighteen months' experience at sea or on the Lakes.
=Lifeboat Men.=--The Seamen's Act, in connection with its elaborate
provisions for the equipment of vessels with life-saving appliances,
lays down the distribution of a specially designated class of
certificated seamen known as lifeboat men to the various lifeboats and
rafts required to be carried by a vessel, leaving the designation of the
individuals to the discretion of the master. To secure a certificate as
lifeboat man, a seaman is required to prove to the satisfaction of the
inspection officers, or other officers designated for the purpose of
issuing certificates, that he has been trained in all the operations in
connection with launching lifeboats and the use of oars, is acquainted
with the practical handling of the boats themselves, and is capable of
understanding and answering the orders relative to lifeboat service.
=Language.=--Perhaps the most disputed proviso of the Seamen's Act is
that which requires that not less than 75 per cent. of the crew of the
vessel must be able to understand any order given by the officer--that
is, the necessary orders given to the members of the crew in each
department in the performance of their particular duties. This law,
however, does not require the use of any particular language on the part
of officers and crew of the vessel, nor does it require an
English-speaking crew, nor that the members of the crew in one
department of the vessel should understand orders given in another
department.
IX. NATIONALITY OF OFFICERS AND CREW
=Officers.=--Since 1792 our laws have required that the officers of
_all_ vessels of the United States who are in charge of a watch,
including pilots, shall be citizens. This of course includes tugs,
barges and all other vessels which are documented under our laws. The
term "officer" includes the Chief Engineer and each Assistant Engineer
in charge of the watch. The only exception to this rule is that which
was made by the Ship Registry Act of 1914, and the executive order based
upon it, under which foreign-built ships admitted to American registry
under that act are permitted to retain their watch officers, without
regard to citizenship, for a term of seven years, provided that after
two years any vacancy must be filled by a citizen of the United States.
=Crew.=--There are no provisions or restrictions as to the nationality
of the crew on vessels of the United States.
X. WAGES
The Seamen's Act requires that on _coasting_ voyages, wages shall be
paid to every seaman within two days after the termination of the
agreement under which he shipped, or at the time of his discharge if he
should be discharged before the expiration of the agreement; and that on
_foreign_ voyages wages shall be paid within twenty-four hours after the
discharge of the cargo, or within four days after the discharge of the
seaman, whichever shall first happen. The law further provides that a
seaman is entitled in every case to be paid at the time of his discharge
a sum equal to one-third of the balance of wages then due him. This
proviso, however, is seldom observed in practice, nor is it insisted
upon, as it would in general be impracticable for wages to be paid at
the moment of discharge.
The question of payment of a certain portion of wages on demand, which
is also covered by the Seamen's Act and earlier acts, has received
considerable revision in the Merchant Marine Act. Under this law it is
provided that _every_ seaman on a vessel of the United States may
receive on demand of the master one-half of the balance of his wages
earned at every port where the vessel loads or delivers cargo. This
protection may not be waived by contract, but is subject to the proviso
that the demand shall not be made before the expiration of, nor oftener
than once in, five days, nor more than once in the same harbor. Failure
on the part of the master to comply with this demand releases the seaman
from his contract and entitles him to full payment of wages earned. At
the end of the voyage the seaman is entitled to the remainder of his
wages according to the provisions of the Seamen's Act, which also
provides that notwithstanding the release, which is required to be
signed before the Shipping Commissioner at the time of the seaman's
discharge, the proper court may set aside the release upon good cause
shown. The provision of the Merchant Marine Act is specially made
applicable to the case of seamen on foreign vessels while in the harbors
of the United States, and the courts of the United States are opened to
such seamen for its enforcement.
=Advances.=--The law in regard to advances to seamen is also slightly
amended by the Merchant Marine Act, which makes it unlawful to pay wages
in advance of the time when actually earned, or to pay such advance
wages or make any order or note or other evidence of indebtedness for
the same to any other person, or to pay any other person for the
shipment of seamen when payment is deducted or is to be deducted from
the seaman's wages. Payment of such advance wages or allotment whether
made within or without the United States does not absolve the vessel
from libel and is no defense to a libel suit. This act also forbids any
person to demand or receive from any seaman any remuneration whatever
for providing him employment.
Seamen discharged by a consul in a foreign port on account of the voyage
being continued contrary to agreement, or unseaworthiness of vessel, or
bad provisions, or cruel treatment, are entitled to one month's extra
wages and transportation to the United States. Seamen discharged at a
foreign port at the request of the master, and not on account of neglect
of duty, are entitled to employment on a vessel agreed to by the seaman
and to one month's extra wages.
Seamen discharged before commencement of voyage without fault, are
entitled to one month's additional wages, and all seamen are entitled to
two days' extra wages for each day's delay in payment at end of voyage.
The laws also contain elaborate and beneficial provisions for the
recovery of their wages by seamen through proceedings in the courts.
Seamen are disqualified by law from signing away their lien upon a
vessel for wages; as also their rights to participate in salvage. It is
to be noted that the seaman's right to a share in salvage, in the case
of the saving of human life, on the part of a seaman who has taken part
in the services rendered, is expressly conferred and protected by
statute. Failure, unless unavoidable, to give help to persons at sea, in
danger of being lost, is also made a serious criminal offense.
XI. WATCH AND WATCH AND WORK-DAY
Before the passage of the Seamen's Act there were no legal requirements
as to hours of labor at sea, though long established custom had divided
the deck crew into two watches and the engine crew into three watches,
with certain variations in this plan in special trades. Under the
Seamen's Act it is now provided that on merchant vessels of over 100
tons, except those engaged in river and harbor navigation, the sailors
must be divided into at least two watches, and the firemen, oilers and
water tenders into at least three watches, which are to be kept on duty
successively for the performance of ordinary work, incident to the
sailing and management of the vessel.
Seamen may not be shipped to work alternately in the fireroom and on
deck, nor may those shipped to work on deck be shifted to the fireroom,
or vice versa, subject to cases of emergency, in the judgment of the
master or other officer. These provisions, however, do not prohibit the
master or other officers from requiring the whole or any part of the
crew to participate in fire, lifeboat and other drills when the vessel
is in a safe harbor nine hours, inclusive of the anchor watch, which is
a legal day, but in such case no seaman may be required to do
unnecessary work on Sundays or on New Year's, Fourth of July, Labor Day,
Thanksgiving Day and Christmas, provided that this does not prevent the
dispatch of the vessel on regular schedule or when ready to proceed on
her voyage.
XII. PROVISIONS FOR CREW
=Sleeping Quarters.=--The Seamen's Act provides that on all vessels
(except yachts, pilot boats and vessels of less than 100 tons) whose
construction is thereafter begun, there shall be a crew space of not
more than 100 cubic feet or not less than 16 square feet for each seaman
lodged therein; also that each seaman shall have a separate berth, and
that not more than one berth shall be placed above another; that the
seamen's quarters shall be properly lighted, drained, heated,
ventilated, constructed and protected and shut off; and that crew space
shall be kept free from goods and stores. This law increased the crew
quarters from 72 cubic feet and 12 square feet in the case of
steamships, and from 100 cubic feet in the case of sailing vessels. It
is noted that the Seamen's Act applies to _all_ merchant vessels of the
United States, in this respect differing from the earlier acts which
applied only to seagoing vessels.
=Washing Places.=--The Seamen's Act requires that all merchant vessels
whose construction is begun after its passage, having more than ten men
on deck, shall have a light, clean and properly ventilated washing
place, at least one washing outfit for every two men of the watch, and a
separate washing place for the fire-room and engine-room men, if more
than ten in number, which shall be large enough to accommodate at least
one-sixth of them at the same time, and shall have hot and cold water
supply and a sufficient number of wash basins, sinks and shower baths.
=Provisions Scale.=--Since 1790 the laws of the United States have
specified a scale of provisions required to be carried upon vessels.
With minor alterations included in the Seamen's Act, the present scale,
with permissible substitutions, was fixed by law on December 21, 1898.
Under this law seamen have the option of accepting the provisions
offered or of demanding the legal scale, which is required to be
inserted in all ship articles and to be posted in the galley and
forecastle. The laws contain provisos for complaints to be made to the
officer in command of the vessel or to the United States consular
officer or Shipping Commissioner or chief officer of the customs, who
has authority to take action to see that the deficiency is corrected,
subject to a penalty for default.
For allowing the supply of provisions to be reduced below the legal
scale during the voyage, except for unavoidable causes, compensation
must be paid to every seaman according to the time of its continuance
and in accordance with the scheduled allowances fixed by law.
=Hospital Accommodations.=--In addition to crew space already referred
to all merchant vessels which ordinarily make voyages of more than three
days' duration and carry a crew of twelve or more seamen, are required
to have a separate compartment for hospital purposes with at least one
bunk for every twelve seamen, provided that not more than six bunks in
all may be required.
=Warm Room and Woolen Clothing.=--Every vessel bound on a voyage over
fourteen days in length must, in addition to a slop chest, provide for
each seaman one suit of woolen clothing, as also a "safe and warm room"
for cold weather.
XIII. PERSONAL INJURIES TO SEAMEN AND RECOVERIES FOR DEATH
Prior to the passage of the recent Merchant Marine Act (1920) recovery
by a seaman for injuries received by him in the service of the ship was
subject to the maritime law under which (except in case of the
unseaworthiness of the vessel, where full recovery might be claimed) the
seaman was entitled to, but only to, his maintenance and cure, and to
wages so long at least as the voyage continued, regardless of his own
negligence (unless it amounted to willful misconduct) or of that of any
other person. Where his contract extended beyond the voyage or there was
fault on the part of the ship, recovery of wages was allowable even
beyond the termination of the voyage.
This liability could not be enlarged or diminished by any law of the
states on the subject of employer's liability or workmen's compensation.
The Seamen's Act of 1915 undertook to enlarge the protection of seamen
by providing that in suits to recover damages for injuries received on
board a vessel, or in its service, seamen "having command," _e.g._,
masters, etc., should not be held to be fellow servants with those under
their authority, but this was held not to affect those cases covered by
the general rule of the maritime law above stated, under which the
fellow servant question is immaterial.
A more successful effort at extending the seaman's right, however, was
made in the recent Merchant Marine Act, which permits any seaman who
suffers injury in the course of his employment, to maintain, at his
election, an action for damages at law, with the right of trial by jury,
and in such case to have the benefit of the United States statutes
modifying or extending the rights of railroad employees in analogous
cases.
The same act also covers the question of actions for the death of
seamen, giving to their personal representatives the right to sue for
damages at law and the benefit of a trial by jury, and the similar
benefit of the laws covering actions for death in the case of railroad
employees.
This provision, it is observed, is in sharp contrast, and perhaps in
some conflict with the provision of an act passed at the same session of
Congress, on March 30, 1920, giving a general right to maintain actions
for all deaths occurring on the high seas by some wrongful act or
neglect. This law, which in its broad terms covers also the case of
seamen, permits suits to be brought in the admiralty courts and fixes
the recovery at the amount of pecuniary loss sustained by the persons
for whose benefit suit is brought. It further provides that in such
action the fact that the decedent has been guilty of contributory
negligence is not to be considered a bar to recovery, but is to be taken
into consideration by the court in fixing the degree of negligence and
in reducing the recovery accordingly.
A discussion of the technical questions involved in the relations of
these two acts is beyond the scope of this summary.
XIV. OFFENSES BY SEAMEN
Offenses by seamen are punishable under the laws of the United States,
generally, when committed on the high seas, or on any waters within the
jurisdiction of the admiralty courts, or on lands under the exclusive
jurisdiction of the United States. The list of crimes covers those
familiar to the criminal law, such as murder, manslaughter, assault,
rape, robbery, arson, larceny, forgery, receiving stolen property, etc.
Other offenses peculiar to marine life may be noted as follows.
=Mutiny, Desertion and Disobedience.=--Inciting to or participation in a
mutiny on a United States vessel is punished by a fine of not over
$1,000 or imprisonment of not over five years or both. This offense
includes the stirring up of the crew to resist lawful orders or "to
refuse or neglect their proper duty, or to betray their proper trust,"
also "the assembly with others in a tumultuous and mutinous manner." The
actual revolt or mutiny--the usurping of the command of a vessel, is
punishable by a fine of not over $2,000 or imprisonment of not over ten
years, or both.
Willful disobedience is punishable under the Seamen's Act by being
placed in irons until the disobedience ceases, and, on arrival in port,
by forfeiture of wages, not exceeding four days' pay, or, at the
discretion of the court, by imprisonment not exceeding a month.
Continued willful disobedience subjects the offender to being placed in
irons on bread and water, with full rations every fifth day, until the
disobedience ceases, and the forfeiture, on arrival in port, of twelve
days' pay for every twenty-four hours' disobedience, or by imprisonment
not over three months, at the discretion of the court.
Desertion is punishable under the Seamen's Act by forfeiture of clothes
and effects left on the vessel, and of wages due, the former penalty of
imprisonment for desertion in a foreign port having been abolished, as
also the provision for the arrest of seamen deserting from foreign
vessels. This proviso is much more lenient than the laws of most foreign
countries. In the case of England, if the desertion takes place outside
the United Kingdom the deserter is liable to imprisonment for a period
not exceeding twelve weeks. Imprisonment for desertion in the coastwise
trade was abolished by the Maguire Act in 1895.
=Miscellaneous Offenses.=--Among these may be mentioned the following:
_Seduction_ of a female passenger, by master, officer, crew or employee
is punishable by a fine not exceeding $1,000 and imprisonment not
exceeding one year, or both. A subsequent marriage may be pleaded in bar
of conviction. _Misconduct_, neglect or inattention to duty, resulting
in loss of life, is punishable by fine not exceeding $10,000, or
imprisonment not more than ten years, or both. _Abandonment of seamen_
is punishable by a fine not over $500, or imprisonment not over six
months, or both. _Barratry_--the attempt to injure or destroy a vessel
for her insurance--is punishable by a fine not over $10,000 and
imprisonment not over ten years. _Wrecking_--plundering or stealing from
a wrecked vessel--calls for a fine not exceeding $5,000 and imprisonment
not exceeding ten years. _Willfully Obstructing Escape_ from a wrecked
vessel subjects the offender to a minimum imprisonment of ten years,
with a maximum punishment of imprisonment for life. _Plundering_ a
vessel,--fine $5,000 maximum, and imprisonment not exceeding ten years.
_Entering_ a vessel with intent to commit felony,--fine $10,000 maximum,
and imprisonment not exceeding five years. _Casting away_ or otherwise
destroying vessel by owner,--imprisonment for life or any lesser term;
by other person, imprisonment not exceeding ten years.
The carrying of sheath-knives by seamen in the merchant service is
forbidden, and penalties for allowing violation of this prohibition are
imposed upon the master.
Officers, seamen and employees are forbidden to visit passengers'
quarters except by permission of the master. Severe penalties are
imposed upon both the offending person and upon the master permitting
the violation.
Corporal punishment is prohibited by the Seamen's Act under penalties
not only of fine and imprisonment, but of liability to civil damages.
Ill treatment of a seaman, beating without justifiable cause, wounding
or beating, or the withholding of suitable food and nourishment, or the
infliction of any cruel and unusual punishment is punished by fine of
not over $1,000 or imprisonment of not over five years.
Shanghaiing was prohibited, under severe penalties, in 1909.
=Assistance in Case of Collision.=--The law requires every master, in
the case of a collision, so far as he can do so without serious danger
to his own vessel or its crew or passengers, to stand by the other
vessel until he has ascertained that she has no need of further
assistance, and to render such assistance as may be practical, also to
give the name of his own vessel, her port of registry, and other
material information. For failure to do so and in the absence of
reasonable cause shown for such failure, a collision, in the absence of
proof to the contrary, is deemed to have been caused by such master's
wrongful act or neglect.
For failing to render such assistance, or giving the information
required, masters are liable to a fine of $1,000 or a year's
imprisonment, and the vessel is expressly made liable for the amount
named, one-half of which is payable to the informer.
XV. RULES OF THE ROAD
There are three general bodies of rules covering the navigation of
vessels with respect to the rules of the road.
The first of these are the International Rules which were adopted at a
conference of maritime nations held in the United States in 1889, which
are now in force in practically all maritime countries. They apply only
to vessels on the high seas, the boundary line of which, so far as the
United States is concerned, has been defined by an act of Congress
passed in 1913, under which the Secretary of Commerce, having been
authorized to fix lines separating the high seas from inland waters for
the purposes of the rules of the road, has defined a water line from
Cutler Harbor, Maine, to Puget Sound.
The second body of rules is known as the Inland Rules, embodied in a
federal statute passed in 1897, and applicable only to the waters within
the line thus defined. These rules, generally speaking, are similar to
the International Rules but differ in a number of details.
The third body of rules is what is known as the Pilot Rules for certain
inland waters of the Atlantic and Pacific coasts and of the coast of the
Gulf of Mexico, adopted by the supervising inspectors of the Steamboat
Inspection Service, approved by the Secretary of Commerce under
authority of the Act of June, 1897, establishing the Inland Rules, and
of subsequent acts passed in 1903 and 1913, establishing the Department
of Commerce. These rules are also to a large extent similar to, and are
generally in harmony with the inland rules, to which they yield in case
of conflict. More extended reference to these rules, the knowledge of
which should be a matter of second nature to seafaring men, is beyond
the scope of this summary.
XVI. PILOTAGE
As the states had enacted pilotage laws before the adoption of the
Constitution, the right of the states to a certain measure of control
over pilotage, within their boundaries, has always been recognized, and
consequently a dual system has grown up. The state laws are effective
except where the subject is specifically covered by a federal law.
As to the federal requirements, all vessels engaged in the _coasting_
trade are required, when under way and within the jurisdiction of the
United States, that is, except on the high seas, to be piloted by
officers duly licensed under the federal law as pilots for the
particular waters covered. This is covered by the qualifications laid
down for the various classes of vessels by the Board of Supervising
Inspectors, and by the provision of our law that the qualifications
necessary for obtaining a license as master, mate or pilot of all steam
vessels shall be as prescribed by the Board.
Registered steam vessels, when engaged in _foreign_ trade, and all
sailing vessels of the United States in the foreign or coasting trade,
are exempt from this requirement, but are subject to the requirements of
the pilotage laws of the several states.
The master of a foreign vessel is not required to employ a pilot
licensed under the laws of the United States.
As to state laws, the pilotage of all vessels in state waters (except
enrolled steam vessels employed in the coasting trade, which are
exempted from state supervision by act of Congress), is regulated by the
laws of the respective states. There are, however, a number of special
prohibitions designed to prevent controversy between the states. Thus,
no regulation may be adopted by one state making the discrimination of a
lower pilotage as to vessels sailing between ports of one state and
vessels sailing between ports of different states, nor any
discrimination against steam vessels; nor may a state require pilots to
procure a state license in addition to that issued by the United States.
It is to be noted that the federal law, which forbids the states to
require enrolled coastwise steamers to take on state pilots, does not
apply to _sailing vessels_ even though they may be in a tow of a steam
tug carrying a licensed pilot, a discrimination difficult to justify.
In this connection, thrifty ship agents handling _registered_ vessels
which for the time being happen to be engaged in the _coasting_ trade,
will naturally see to it that registers are exchanged for enrollments,
wherever a substantial saving in the matter of exemption from state
pilotage fees can be figured out.
It is to be noted, however, that in order to permit this very saving, in
another direction, the government permits vessels engaged in trade
through the canal to be enrolled and licensed. By thus obviating the
necessity for registry, state pilotage is avoided.
XVII. LENGTH OF HAWSERS
The law provides a special procedure covering length of hawsers in the
case of tows. The Commissioner of Lighthouses, the Supervising Inspector
of the Steamboat Inspection Service, and the Commissioner of Navigation
are directed to convene as a board, under directions of the Secretary of
Commerce, and to prepare regulations limiting the length of hawsers
between towing vessels and seagoing barges in tow, and the length of
such tows within any of the inland waters of the United States. Willful
violation of these regulations subjects the license of the master of the
towing vessel to suspension or revocation.
XVIII. INSPECTION OF STEAM VESSELS
All steam vessels must be inspected yearly as to their hulls, and
generally as to whether they have complied with all the requirements of
the law in regard to fires, boats, pumps, hose, life preservers, floats,
anchors, etc., as laid down in the Rules and Regulations of the United
States Board of Supervising Inspectors, which should be familiar to all
masters. Inspectors, however, have the widest latitude. The law requires
that they shall satisfy themselves that the boat is in a condition to
warrant their belief that she may be used in navigation with safety for
life. In making this test they may have her put under way or may adopt
any other suitable means to test her sufficiency or that of her
equipment. This yearly inspection, however, may be suspended under
special regulations, when vessels are laid up and dismantled and out of
commission. In this connection it is perhaps worth remembering that the
laws of the United States make it a criminal offense for any person
knowingly to send to sea an American ship, whether in the coast, foreign
or coastwise trade, in such an unseaworthy state that the life of any
person is liable to be endangered. The punishment for this offense is
properly severe--imprisonment not exceeding five years or a fine not
exceeding $1,000 or both at the discretion of the court.
The law also provides for the yearly inspection of the boilers of all
steam vessels, including tug-boats, to insure compliance with the
requirements of the standards issued by the board.
=Barges.=--Seagoing barges of over 100 tons gross are also subject to
yearly inspection. The standard applied by the local inspectors is the
elastic one that they shall satisfy themselves that the barge is "of a
structure suitable for the service in which she is to be employed, has
suitable accommodations for the crew, and is in a condition to warrant
the belief that she may be used in navigation with safety to life." In
the case of such barges the law also specially provides that there shall
be at least one lifeboat, one anchor with suitable chain or cable, and
at least one life preserver for each person on board.
Without such certificate of inspection actually in force at the time, no
document can be issued for a barge, and for navigating a barge without a
certificate or without the equipment referred to the owner is liable to
a penalty of $500. Certificates of inspection for barges are issued in
the same manner as for seagoing vessels generally. Where the certificate
is not available at the time of securing a new document, evidence that
it is still in force must be produced to the Collector, which may be in
the form of a telegraphic confirmation of the fact, from the office of
the Steamboat Inspection Bureau, Department of Commerce, Washington.
=The Certificate of Inspection.=--Upon the making of every inspection,
if the inspectors refuse to grant a certificate, they are required to
sign a written statement of their reasons for their disapproval. If
approval is granted, however, it is their duty to immediately deliver to
the master or owner a temporary certificate, which is good until the
regular certificate has been delivered. Copies of these certificates are
kept on file in the inspector's office or in the office of the Collector
of Customs. The original is required to be posted in a conspicuous place
in the vessel, to be kept there at all times except where it is
otherwise permitted in special cases under the regulations.
=Manning of Inspected Vessels.=--The inspection of the local inspectors
covers not only the hull and boiler and equipment, but also the
questions of manning, character of merchandise to be carried, and the
mode of packing dangerous articles, etc.
The local inspectors, on making the general inspection of the vessel,
are required to make entry in the certificate of inspection of such
complement of licensed officers and crew, including certificated
lifeboat men, as they consider necessary for her safety, this entry
being subject to right of appeal to the Supervising Inspector General.
Where such a vessel is for any reason deprived of the services of any
number of the crew, without the consent or fault of the master or any
person interested in the vessel, she is permitted to proceed on her
voyage if, in the judgment of the master, she is still sufficiently
manned. It is required, however, that the master shall ship, if
obtainable, a number equal to those whose services he has been deprived
of, and of the same or higher grade, also that he shall explain in
writing the situation to the local inspectors within twelve hours of the
arrival of the vessel at its destination under penalty of $50. The
penalty for undermanning the vessel is $100, or in case of an
insufficient number of licensed officers $500.
XIX. REGISTER TONNAGE
Three methods of measuring the capacity of a ship are more or less in
general use in the maritime world.
The displacement tonnage, or weight of the volume of water displaced by
the ship when fully loaded with all her crew, coal, supplies, etc., is
in general use by the navies of the world for assuring accuracy and
uniformity, but of course is not adapted to merchant vessels on which
the cargo varies from voyage to voyage.
The deadweight tonnage, or actual weight of the cargo which a merchant
ship will transport, obviously is adaptable only for vessels carrying
bulk cargoes and not for general cargo ships. Each of these measurements
is recorded in long tons avoirdupois.
The American registered tonnage system follows the Moorsom rules adopted
in England in 1854, which are now in effect in practically every
maritime country. It aims to express the entire cubical content of a
merchant ship in unit tons of 100 cubic feet, this figure having been
arrived at in England, on the adoption of the present system, when it
was found that the ratio of the total registered tonnage of the British
merchant marine to cubic feet of contents was slightly over 98.
The measurement rules of the United States are carefully and elaborately
defined in the statutes themselves.
Under the statutes net tonnage is ascertained by deducting from gross
tonnage that proportion of the ship's space occupied by engine's
machinery, boilers, coal bunkers and certain other minor spaces, such as
those which inclose the steering gear below deck, the boatman's stores,
chart-houses, donkey engine and sail room.
To encourage the building of ample forecastles, crews' quarters, etc.,
as well as for other reasons, the rule is adopted by almost all maritime
nations that tonnage taxes and other tonnage dues shall be collected not
on gross but upon the net tonnage. This also includes the usual
commercial charges for towage, dockage and wharfage. Official U. S.
statistics of entrances and clearances are in terms of net-register
tonnage, as also time charter rates when not specifically based on
deadweight tonnage. The incentive to understate net register is thus
strong.
In the case of tugs engaged in foreign service and which are therefore
subject to tonnage duties, it becomes important to see that the net
tonnage, which should ordinarily be a very small figure, is held to the
lowest limit. For instance, seagoing and oceangoing tugs have been
reported with a tonnage as low as eight and ten tons. On the other hand,
many American tugs of no larger capacity are in the habit of carrying a
net tonnage far exceeding this amount.
XX. TONNAGE TAXES
Tonnage tax is levied on every vessel engaged in trade upon her arrival
by sea from a foreign port unless she is in distress. It is not levied
on more than five entries at the same rate during any one year nor on
vessels arriving otherwise than by sea from foreign ports at which
equivalent taxes or dues are not imposed on vessels of the United States.
This tax varies from two to six cents per net ton, the two cent rate
applying to ports in North and Central America, the West Indies,
including Cuba and the Bermuda Islands, the coast of South America
bordering on the Caribbean Sea, and New Foundland. By special treaty
arrangement it also applies to Norway and Sweden. The six cent rate
applies to all other trade.
Vessels entering otherwise than by sea from a foreign port at which
tonnage or lighthouse dues or other equivalent tax or taxes are not
imposed on vessels of the United States, are exempt from the tonnage
duty of two cents per ton, not to exceed in the aggregate ten cents per
ton in any one year.
These tonnage duties are substantially similar to the corresponding
English rates, but are materially lower than corresponding charges in
European continental ports. There are a number of special instances of
exceptional cases, but which are not of sufficient frequency or
importance to deserve special mention. It is well to remember, however,
that if any officer of an American vessel should happen not to be a
citizen a penalty of fifty cents a ton is imposed, except as provided by
presidential proclamation in the case of certain vessels of foreign
origin.
Foreign steam tugs employed in towing coastwise vessels are liable to a
tonnage of fifty cents a ton on the measurement of the vessel towed,
unless the towing is done in whole, or in part, within or upon foreign
waters, or when the tug-boat is owned by a foreign railway company whose
cars enter into the United States by means of such transportation.
XXI. NAVIGATION FEES
Vessels engaged in foreign trade with other than Canadian ports are
subject to navigation fees upon entry. Thus if she is less than 100 tons
burden the fee is $1.50. Over that amount the fee is $2.50. Her
clearance fee is at the same rate.
In the event that she might have any dutiable merchandise on board she
would also be liable under similar conditions to the usual fees for
surveyor's services in connection with her customs entries, to wit,
$1.50, if less than 100 tons, and $3 if more than 100 tons. Where she
carries no dutiable merchandise, however, the fee is a nominal one of
sixty-seven cents, which applies, of course, in the case of foreign
ballast which is not dutiable.
XXII. ANNUAL LIST OF MERCHANT VESSELS
The law provides that the Commissioner of Navigation shall publish
annually a list of vessels of the United States belonging to the
commercial marine, specifying their official number, signal letters,
name, rig, tonnage, home port, and place and date of build,
distinguishing sailing vessels from those propelled by steam or other
motive power. The list for the year 1919 was the fifty-first list so
published.
Under the provisions of an act passed in 1912 it is required that upon
affidavit by a reputable ship builder as to the rebuilding of _unrigged_
wooden vessels, giving date and place of their rebuilding, and
certifying that they are sound and free from rotten wood and in every
respect seaworthy, a notation to this effect shall be included in the
list. It is noted that the provision applies only to _unrigged_ wooden
vessels, and thus does not cover the case of rigged barges, whatever
their size.
XXIII. NUMBERING OF UNDOCUMENTED MOTOR BOATS
In 1918 a law was passed requiring the numbering of all theretofore
undocumented motor boats, except vessels under sixteen feet temporarily
equipped with detachable motors. These numbers are awarded by the
collectors of customs on application of the owner or master, and are
required to be painted, or otherwise attached, to the bow of the vessel,
and to be not less than three inches in size. Violation of the act is
subject to a penalty of $10.
From the date of the passage of the act on December 7, 1917, up to July
1, 1919, nearly 100,000 such vessels had been numbered, and the
experiment had proved highly successful in assisting the enforcement of
the navigation laws and the collection of taxes as well as the
enforcement of harbor police laws and regulations.
XXIV. ADMINISTRATION OF NAVIGATION LAWS
Practically every department of the government has to do with some
feature or other of the navigation laws as affecting ship building,
maritime commerce and ocean transportation. Primarily, however, the
administration of the laws is in the hands of the Department of
Commerce, under the immediate direction of the Bureau of Navigation, the
Steamboat Inspection Service and the United States Shipping
Commissioners. Other branches of government service whose functions
touch on some phase of navigation are the Public Health Service, with
its hospitals and quarantine stations, and the Coast Guard which, since
1915, has included the Revenue Cutter and Life Saving Service. The War
and Navy departments also have various functions related primarily to
the national defense. The activities of the Shipping Board will be
separately reviewed.
=Commissioner of Navigation.=--The Bureau of Navigation, under the head
of the Commissioner of Navigation, has general superintendence of the
merchant marine and seamen so far as they are not directly subject to
other departments; it controls the documentation of vessels and has
supervision of the laws relating to measurement of vessels, signal
numbers and the questions relating to the tonnage tax. It is charged
further with the preparation of the annual list of vessels belonging to
the merchant marine, has authority to change the names of vessels, and
is charged with the preparation of annual reports to the Secretary, and
with numerous other miscellaneous but important duties.
=Steamboat Inspection Service.=--The Steamboat Inspection Service is
under the direction of a Supervising Inspector General appointed by the
President, in addition to which there are ten supervising inspectors who
meet as a Board in Washington at least once a year and establish
regulations necessary to carry out the inspection laws relating to
vessels, subject to the right of the Secretary of Commerce to convene a
special executive committee, composed of the Supervising Inspector
General and two supervising inspectors, who have power to alter and
amend these rules with the approval of the secretary.
The principal duty of the supervising inspectors is to supervise the
work of a large number of local inspectors of hulls and of boilers, and
who in their respective districts, upon designation of the Secretary of
Commerce, constitute the Board of Local Inspectors charged with the
duties of inspection and the issuance and supervision of licenses
already referred to.
=Shipping Commissioners.=--The Shipping Commissioners of the United
States form a highly responsible body of officers with semi-judicial
functions, who are directly responsible to the Secretary of Commerce, by
whom they are appointed. The law provides one such officer for each port
of entry which is a port of ocean navigation, and which in the judgment
of the Secretary shall require the services of a Commissioner, and for
whom Congress has made an appropriation. Generally speaking, the duties
of the Shipping Commissioner are to afford facilities for engaging
seamen; to superintend their engagement and discharge in the manner
prescribed by law; to provide means for securing their presence on the
board at the proper time; to facilitate the making of apprentices in the
sea service; and to perform other duties imposed upon them.
One of the most important and useful functions of a Shipping
Commissioner, particularly when the office is in capable hands, is that
of arbitrating claims between master, consignee, agent or owner or any
of the crew, when both parties agree in writing to submit to the award,
it being provided by law that an award made by a Commissioner in such
case is binding on both parties and in any legal proceedings is to be
deemed conclusive of the rights of the party.
The Commissioners are given authority to call upon owners, agents,
masters, for proof or production of books, papers, etc., or to give
evidence before the Commissioner subject to a penalty and punishment for
contempt for failure to so comply.
As it is the practice to insert arbitration clauses in all steamers'
shipping articles, excepting those operated by the Shipping Board, which
should be carefully read to the crews before they are signed, this duty
is generally viewed by captains and owners as an invaluable aid to
shipping and has been accepted also by the majority of seamen. The work
of the Commissioners in this direction has been so successful that an
effort was recently made to confer upon the Commissioners by law certain
magisterial powers subject to appeal to the United States District
Courts. So far the effort has been unsuccessful.
Having in mind their responsibilities and enormous possibilities of
service to navigation, Shipping Commissioners are among the most
pitifully underpaid of government officials. As an illustration of this
it may be noted that the Commissioners in the great ports of
Philadelphia and of Norfolk receive salaries of $2,400 and of $1,800,
respectively.
XXV. THE SHIPPING BOARD
The United States Shipping Board was created before the war, by the
Shipping Act of 1916, with the dual function and purpose, first of
acting as the administrative agent of the government in developing the
merchant marine and the naval auxiliary in peace time, and, second, that
of meeting the shipping problems incident to a possible war.
Its most important powers have heretofore been exercised through the
instrumentality of the United States Shipping Board Emergency Fleet
Corporation, organized by, and the stock of which has been held by, the
Shipping Board, for the Government. The primary function of the
Corporation was the construction of vessels, but its work was soon
extended to include their operation, in an effort to avoid the
embarrassments, prior to our entering the war, of having our vessels, if
operated by such purely public administrative agency as the Shipping
Board, treated as public vessels in foreign ports. In the beginning it
was intended that the Corporation should function in the character of a
private corporation, and 50,000,000 dollars was appropriated to it for
the construction of vessels, but during the war it acted primarily as
the agent of the President, claiming the immunities and privileges
incident to that somewhat anomalous relation, and has expended upwards
of 3,000,000,000 dollars, its capital remaining intact. The actual
operation of vessels by the Corporation has been carried out through the
instrumentality of a specially organized Division of Operations, which
was largely separate from the Corporation itself, and subject to the
direction and supervision of the Shipping Board.
The jurisdiction of the Shipping Board, however, has not been confined
to vessels in which the government is interested as owner or charterer.
From the first the Board has had authority to enforce a general
prohibition against unfair discrimination and preferences and against
the improper influencing of marine insurance companies by common
carriers by water, whether in foreign or interstate commerce, not
including tramps, and has also exercised the right of supervising and
regulating tariffs fixed by common carriers in _interstate_ commerce. In
this field, however, the jurisdiction of the Board does not overlap the
jurisdiction of the Interstate Commerce Commission, which has authority
to establish through routes and joint rates where they involve water
transportation. Like the Interstate Commerce Commission the orders of
the Shipping Board are subject to review by the federal courts.
A recent provision of the Merchant Marine Act (1920) reorganizes and
strengthens the Shipping Board, consolidating and centralizing its
control and giving it wide powers in the matter of developing the
American merchant marine and of encouraging the establishment of new
lines and the investigation generally of all matters relative to the
advancement of merchant marine.
Among other new powers of general scope given to the Board is that under
which it is authorized to make rules and regulations affecting shipping
in the _foreign_ trade, wherever necessary, in order to meet special
conditions in foreign trade arising out of foreign laws or competitive
methods practiced in foreign countries. The Board is also authorized to
request the heads of departments to suspend and modify regulations or to
make new regulations affecting shipping in the foreign trade, except
those relating to the Public Health Service, the Consular Service and
the Steamboat Inspection Service, and no rules or regulations excepting
those affecting the services named, may be established by any department
without being first submitted to the Board for its approval and final
action taken thereon by the Board or the President.
[33] Of the Philadelphia Bar.
APPENDIX II
THE MERCHANT MARINE ACT OF 1920[34]
_Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled_, That it is necessary for the
national defense and for the proper growth of its foreign and domestic
commerce that the United States shall have a merchant marine of the best
equipped and most suitable types of vessels sufficient to carry the
greater portion of its commerce and serve as a naval or military
auxiliary in time of war or national emergency, ultimately to be owned
and operated privately by the citizens of the United States; and it is
hereby declared to be the policy of the United States to do whatever may
be necessary to develop and encourage the maintenance of such a merchant
marine, and, in so far as may not be inconsistent with the express
provisions of this Act, the United States Shipping Board shall, in the
disposition of vessels and shipping property as hereinafter provided, in
the making of rules and regulations, and in the administration of the
shipping laws keep always in view this purpose and object as the primary
end to be attained.
SEC. 2. (a) That the following Acts and parts of Acts are hereby
repealed, subject to the limitations and exceptions hereinafter, in this
Act, provided:
(1) The emergency shipping fund provisions of the Act entitled "An Act
making appropriations to supply urgent deficiencies in appropriations
for the Military and Naval Establishments on account of war expenses for
the fiscal year ending June 30, 1917, and for other purposes," approved
June 15, 1917, as amended by the Act entitled "An Act to amend the
emergency shipping fund provisions of the Urgent Deficiency
Appropriation Act, approved June 15, 1917, so as to empower the
President and his designated agents to take over certain transportation
systems for the transportation of shipyard and plant employees, and for
other purposes," approved April 22, 1918, and as further amended by the
Act entitled "An Act making appropriation to supply deficiencies in
appropriations for the fiscal year ending June 30, 1919, and prior
fiscal years, on account of war expenses, and for other purposes,"
approved November 4, 1918;
(2) Section 3 of such Act of April 22, 1918;
(3) The paragraphs numbered 2 and 3 under the heading "Emergency
shipping fund" in such Act of November 4, 1918; and
(4) The Act entitled "An Act to confer on the President power to
prescribe charter rates and freight rates and to requisition vessels,
and for other purposes," approved July 18, 1918.
(5) Sections 5, 7, and 8, Shipping Act, 1916.
(b) The repeal of such Acts or parts of Acts is subject to the following
limitations:
(1) All contracts or agreements lawfully entered into before the passage
of this Act under any such Act or part of Act shall be assumed and
carried out by the United States Shipping Board, hereinafter called "the
board."
(2) All rights, interests, or remedies accruing or to accrue as a result
of any such contract or agreement or of any action taken in pursuance of
any such Act or parts of Acts shall be in all respects as valid, and may
be exercised and enforced in like manner, subject to the provisions of
subdivision (c) of this section, as if this Act had not been passed.
(3) The repeal shall not have the effect of extinguishing any penalty
incurred under such Acts or parts of Acts, but such Acts or parts of
Acts shall remain in force for the purpose of sustaining a prosecution
for enforcement of the penalty therein provided for the violation
thereof.
(4) The board shall have full power and authority to complete or
conclude any construction work begun in accordance with the provisions
of such Acts or parts of Acts if, in the opinion of the board, the
completion or conclusion thereof is for the best interests of the United
States.
(c) As soon as practicable after the passage of this Act the board shall
adjust, settle, and liquidate all matters arising out of or incident to
the exercise by or through the President of any of the powers or duties
conferred or imposed upon the President by any such Act or parts of
Acts; and for this purpose the board, instead of the President, shall
have and exercise any of such powers and duties relating to the
determination and payment of just compensation: _Provided_, That any
person dissatisfied with any decision of the board shall have the same
right to sue the United States as he would have had if the decision had
been made by the President of the United States under the Acts hereby
repealed.
SEC. 3. (a) That section 3 of the "Shipping Act, 1916," is amended to
read as follows:
"SEC. 3. That a board is hereby created to be known as the United States
Shipping Board and hereinafter referred to as the board. The board shall
be composed of seven commissioners, to be appointed by the President, by
and with the advice and consent of the Senate; and the President shall
designate the member to act as chairman of the board, and the board may
elect one of its members as vice chairman. Such commissioners shall be
appointed as soon as practicable after the enactment of this Act and
shall continue in office two for a term of one year, and the remaining
five for terms of two, three, four, five, and six years, respectively,
from the date of their appointment, the term of each to be designated by
the President, but their successors shall be appointed for terms of six
years, except that any person chosen to fill a vacancy shall be
appointed only for the unexpired term of the commissioner whom he
succeeds.
"The commissioners shall be appointed with due regard to their fitness
for the efficient discharge of the duties imposed on them by this Act,
and two shall be appointed from the States touching the Pacific Ocean,
two from the States touching the Atlantic Ocean, one from the States
touching the Gulf of Mexico, one from the States touching the Great
Lakes and one from the interior, but not more than one shall be
appointed from the same State. Not more than four of the commissioners
shall be appointed from the same political party. A vacancy in the board
shall be filled in the same manner as the original appointments. No
commissioner shall take any part in the consideration or decision of any
claim or particular controversy in which he has a pecuniary interest.
"Each commissioner shall devote his time to the duties of his office,
and shall not be in the employ of or hold any official relation to any
common carrier or other person subject to this Act, nor while holding
such office acquire any stock or bonds thereof or become pecuniarily
interested in any such carrier.
"The duties of the board may be so divided that under its supervision
the directorship of various activities may be assigned to one or more
commissioners. Any commissioner may be removed by the President for
inefficiency, neglect of duty, or malfeasance in office. A vacancy in
the board shall not impair the right of the remaining members of the
board to exercise all its powers. The board shall have an official seal,
which shall be judicially noticed.
"The board may adopt rules and regulations in regard to its procedure
and the conduct of its business. The board may employ within the limits
of appropriations made therefor by Congress such attorneys as it finds
necessary for proper legal service to the board in the conduct of its
work, or for proper representation of the public interest in
investigations made by it or proceedings pending before it whether at
the board's own instance or upon complaint, or to appear for or
represent the board in any case in court or other tribunal. The board
shall have such other rights and perform such other duties not
inconsistent with the Merchant Marine Act, 1920, as are conferred by
existing law upon the board in existence at the time this section as
amended takes effect.
"The commissioners in office at the time this section as amended takes
effect shall hold office until all the commissioners provided for in
this section as amended are appointed and qualify."
(b) The first sentence of section 4 of the "Shipping Act, 1916," is
amended to read as follows:
"SEC. 4. That each member of the board shall receive a salary of $12,000
per annum."
SEC. 4. That all vessels and other property or interests of whatsoever
kind, including vessels or property in course of construction or
contracted for, acquired by the President through any agencies
whatsoever in pursuance of authority conferred by the Acts or parts of
Acts repealed by section 2 of this Act, or in pursuance of the joint
resolution entitled "Joint resolution authorizing the President to take
over for the United States the possession and title of any vessel within
its jurisdiction, which at the time of coming therein was owned in whole
or in part by any corporation, citizen, or subject of any nation with
which the United States may be at war, or was under register of any such
nation, and for other purposes," approved May 12, 1917, with the
exception of vessels and property the use of which is in the opinion of
the President required by any other branch of the Government service of
the United States, are hereby transferred to the board: _Provided_, That
all vessels in the military and naval service of the United States,
including the vessels assigned to river and harbor work, inland
waterways, or vessels for such needs in the course of construction or
under contract by the War Department, shall be exempt from the
provisions of this Act.
SEC. 5. That in order to accomplish the declared purposes of this Act,
and to carry out the policy declared in section 1 hereof, the board is
authorized and directed to sell, as soon as practicable, consistent with
good business methods and the objects and purposes to be attained by
this Act, at public or private competitive sale after appraisement and
due advertisement, to persons who are citizens of the United States
except as provided in section 6 of this Act, all of the vessels referred
to in section 4 of this Act or otherwise acquired by the board. Such
sale shall be made at such prices and on such terms and conditions as
the board may prescribe, but the completion of the payment of the
purchase price and interest shall not be deferred more than fifteen
years after the making of the contract of sale. The board in fixing or
accepting the sale price of such vessels shall take into consideration
the prevailing domestic and foreign market price of, the available
supply of, and the demand for vessels, existing freight rates and
prospects of their maintenance, the cost of constructing vessels of
similar types under prevailing conditions, as well as the cost of the
construction or purchase price of the vessels to be sold, and any other
facts or conditions that would influence a prudent, solvent business man
in the sale of similar vessels or property which he is not forced to
sell. All sales made under the authority of this Act shall be subject to
the limitations and restrictions of section 9 of the "Shipping Act,
1916," as amended.
SEC. 6. That the board is authorized and empowered to sell to aliens, at
such prices and on such terms and conditions as it may determine, not
inconsistent with the provisions of section 5 (except that completion of
the payment of the purchase price and interest shall not be deferred
more than ten years after the making of the contract of sale), such
vessels as it shall, after careful investigation, deem unnecessary to
the promotion and maintenance of an efficient American merchant marine;
but no such sale shall be made unless the board, after diligent effort,
has been unable to sell, in accordance with the terms and conditions of
section 5, such vessels to persons citizens of the United States, and
has, upon an affirmative vote of not less than five of its members,
spread upon the minutes of the board, determined to make such sale; and
it shall make as a part of its records a full statement of its reasons
for making such sale. Deferred payments of purchase price of vessels
under this section shall bear interest at the rate of not less than
5-1/2 per centum per annum, payable semiannually.
SEC. 7. That the board is authorized and directed to investigate and
determine as promptly as possible after the enactment of this Act and
from time to time thereafter what steamship lines should be established
and put in operation from ports in the United States or any Territory,
District, or possession thereof to such world and domestic markets as in
its judgment are desirable for the promotion, development, expansion,
and maintenance of the foreign and coastwise trade of the United States
and an adequate postal service, and to determine the type, size, speed,
and other requirements of the vessels to be employed upon such lines and
the frequency and regularity of their sailings, with a view to
furnishing adequate, regular, certain, and permanent service. The board
is authorized to sell, and if a satisfactory sale can not be made, to
charter such of the vessels referred to in section 4 of this Act or
otherwise acquired by the board, as will meet these requirements to
responsible persons who are citizens of the United States who agree to
establish and maintain such lines upon such terms of payment and other
conditions as the board may deem just and necessary to secure and
maintain the service desired; and if any such steamship line is deemed
desirable and necessary, and if no such citizen can be secured to supply
such service by the purchase or charter of vessels on terms satisfactory
to the board, the board shall operate vessels on such line until the
business is developed so that such vessels may be sold on satisfactory
terms and the service maintained, or unless it shall appear within a
reasonable time that such line can not be made self-sustaining. The
Postmaster General is authorized, notwithstanding the Act entitled "An
Act to provide for ocean mail service between the United States and
foreign ports, and to promote commerce," approved March 3, 1891, to
contract for the carrying of the mails over such lines at such price as
may be agreed upon by the board and the Postmaster General: _Provided_,
That preference in the sale or assignment of vessels for operation on
such steamship lines shall be given to persons who are citizens of the
United States who have the support, financial and otherwise, of the
domestic communities primarily interested in such lines if the board is
satisfied of the ability of such persons to maintain the service desired
and proposed to be maintained, or to persons who are citizens of the
United States who may then be maintaining a service from the port of the
United States to or in the general direction of the world market port to
which the board has determined that such service should be established:
_Provided further_, That where steamship lines and regular service have
been established and are being maintained by ships of the board at the
time of the enactment of this Act, such lines and service shall be
maintained by the board until, in the opinion of the board, the
maintenance thereof is unbusinesslike and against the public interests:
_And provided further_, That whenever the board shall determine, as
provided in this Act, that trade conditions warrant the establishment of
a service or additional service under Government administration where a
service is already being given by persons, citizens of the United
States, the rates and charges for such Government service shall not be
less than the cost thereof, including a proper interest and depreciation
charge on the value of Government vessels and equipment employed therein.
SEC. 8. That it shall be the duty of the board, in coöperation with the
Secretary of War, with the object of promoting, encouraging, and
developing ports and transportation facilities in connection with water
commerce over which it has jurisdiction, to investigate territorial
regions and zones tributary to such ports, taking into consideration the
economies of transportation by rail, water and highway and the natural
direction of the flow of commerce; to investigate the causes of the
congestion of commerce at ports and the remedies applicable thereto; to
investigate the subject of water terminals, including the necessary
docks, warehouses, apparatus, equipment, and appliances in connection
therewith, with a view to devising and suggesting the types most
appropriate for different locations and for the most expeditious and
economical transfer or interchange of passengers or property between
carriers by water and carriers by rail; to advise with communities
regarding the appropriate location and plan of construction of wharves,
piers, and water terminals; to investigate the practicability and
advantages of harbor, river, and port improvements in connection with
foreign and coastwise trade; and to investigate any other matter that
may tend to promote and encourage the use by vessels of ports adequate
to care for the freight which would naturally pass through such ports:
_Provided_, That if after such investigation the board shall be of the
opinion that rates, charges, rules, or regulations of common carriers by
rail subject to the jurisdiction of the Interstate Commerce Commission
are detrimental to the declared object of this section, or that new
rates, charges, rules, or regulations, new or additional port terminal
facilities, or affirmative action on the part of such common carriers by
rail is necessary to promote the objects of this section, the board may
submit its findings to the Interstate Commerce Commission for such
action as such commission may consider proper under existing law.
SEC. 9. That if the terms and conditions of any sale of a vessel made
under the provisions of this Act include deferred payments of the
purchase price, the board shall require, as part of such terms and
conditions, that the purchaser of the vessel shall keep the same insured
(a) against loss or damage by fire, and against marine risks and
disasters, and war and other risks if the board so specifies, with such
insurance companies, associations or underwriters, and under such forms
of policies, and to such an amount, as the board may prescribe or
approve; and (b) by protection and indemnity insurance with such
insurance companies, associations, or underwriters and under such forms
of policies, and to such an amount as the board may prescribe or
approve. The insurance required to be carried under this section shall
be made payable to the board and/or to the parties as interest may
appear. The board is authorized to enter into any agreement that it
deems wise in respect to the payment and/or the guarantee of premiums of
insurance.
SEC. 10. That the board may create out of net revenue from operations
and sales, and maintain and administer, a separate insurance fund, which
it may use to insure in whole or in part, against all hazards commonly
covered by insurance policies in such cases, any interest of the United
States (1) in any vessel, either constructed or in process of
construction, and (2) in any plants or materials heretofore or hereafter
acquired by the board or hereby transferred to the board.
SEC. 11. That during a period of five years from the enactment of this
Act the board may annually set aside out of the revenues from sales and
operations a sum not exceeding $25,000,000, to be known as its
construction loan fund, to be used in aid of the construction of vessels
of the best and most efficient type for the establishment and
maintenance of service on steamship lines deemed desirable and necessary
by the board, and such vessels shall be equipped with the most modern,
the most efficient and the most economical machinery and commercial
appliances. The board shall use such fund to the extent required upon
such terms as the board may prescribe to aid persons, citizens of the
United States, in the construction by them in private shipyards in the
United States of the foregoing class of vessels. No aid shall be for a
greater sum than two-thirds of the cost of the vessel or vessels to be
constructed, and the board shall require such security, including a
first lien upon the entire interest in the vessel or vessels so
constructed as it shall deem necessary to insure the repayment of such
sum with interest thereon and the maintenance of the service for which
such vessel or vessels are built.
SEC. 12. That all vessels may be reconditioned and kept in suitable
repair and until sold shall be managed and operated by the board or
chartered or leased by it on such terms and conditions as the board
shall deem wise for the promotion and maintenance of an efficient
merchant marine, pursuant to the policy and purposes declared in
sections 1 and 5 of this Act; and the United States Shipping Board
Emergency Fleet Corporation shall continue in existence and have
authority to operate vessels, unless otherwise directed by law, until
all vessels are sold in accordance with the provisions of this Act, the
provision in section 11 of the "Shipping Act, 1916," to the contrary
notwithstanding.
SEC. 13. That the board is further authorized to sell all property other
than vessels transferred to it under section 4 upon such terms and
conditions, as the board may determine and prescribe.
SEC. 14. That the net proceeds derived by the board prior to July 1,
1921, from any activities authorized by this Act, or by the "Shipping
Act, 1916," or by the Acts specified in section 2 of this Act, except
such an amount as the board shall deem necessary to withhold as
operating capital, for the purposes of section 12 hereof, and for the
insurance fund authorized in section 10 hereof, and for the construction
loan fund authorized in section 11 hereof, shall be covered into the
Treasury of the United States to the credit of the board and may be
expended by it, within the limits of the amounts heretofore or hereafter
authorized, for the construction, requisitioning, or purchasing of
vessels. After July 1, 1921, such net proceeds, less such an amount as
may be authorized annually by Congress to be withheld as operating
capital, and less such sums as may be needed for such insurance and
construction loan funds, shall be covered into the Treasury of the
United States as miscellaneous receipts. The board shall, as rapidly as
it deems advisable, withdraw investment of Government funds made during
the emergency under the authority conferred by the Acts or parts of Acts
repealed by section 2 of this Act and cover the net proceeds thereof
into the Treasury of the United States as miscellaneous receipts.
SEC. 15. That the board shall not require payment from the War
Department for the charter hire of vessels owned by the United States
Government furnished by the board from July 1, 1918, to June 30, 1919,
inclusive, for the use of such department.
SEC. 16. That all authorization to purchase, build, requisition, lease,
exchange, or otherwise acquire houses, buildings or land under the Act
entitled "An Act to authorize and empower the United States Shipping
Board Emergency Fleet Corporation to purchase, lease, requisition, or
otherwise acquire, and to sell or otherwise dispose of improved or
unimproved lands, houses, buildings, and for other purposes," approved
March 1, 1918, is hereby terminated: _Provided, however_, That
expenditures may be made under said Act for the repair of houses and
buildings already constructed, and the completion of such houses or
buildings as have heretofore been contracted for or are under
construction, if considered advisable, and the board is authorized and
directed to dispose of all such properties or the interest of the United
States in all such properties at as early a date as practicable,
consistent with good business and the best interests of the United
States.
SEC. 17. That the board is authorized and directed to take over on
January 1, 1921, the possession and control of, and to maintain and
develop, all docks, piers, warehouses, wharves and terminal equipment
and facilities, including all leasehold easements, rights of way,
riparian rights and other rights, estates and interests therein or
appurtenant thereto, acquired by the President by or under the Act
entitled "An Act making appropriations to supply urgent deficiencies in
appropriations for the fiscal year ending June 30, 1918, and prior
fiscal years, on account of war expenses, and for other purposes,"
approved March 28, 1918.
The possession and control of such other docks, piers, warehouses,
wharves and terminal equipment and facilities or parts thereof,
including all leasehold easements, rights of way, riparian rights and
other rights, estates or interests therein or appurtenant thereto which
were acquired by the War Department or the Navy Department for military
or naval purposes during the war emergency may be transferred by the
President to the board whenever the President deems such transfer to be
for the best interests of the United States.
The President may at any time he deems it necessary, by order setting
out the need therefor and fixing the period of such need, permit or
transfer the possession and control of any part of the property taken
over by or transferred to the board under this section to the War
Department or the Navy Department for their needs, and when in the
opinion of the President such need therefor ceases the possession and
control of such property shall revert to the board. None of such
property shall be sold except as may be hereafter provided by law.
SEC. 18. That section 9 of the "Shipping Act, 1916," is amended to read
as follows:
"SEC. 9. That any vessel purchased, chartered, or leased from the board,
by persons who are citizens of the United States, may be registered or
enrolled and licensed, or both registered and enrolled and licensed, as
a vessel of the United States and entitled to the benefits and
privileges appertaining thereto: _Provided_, That foreign-built vessels
admitted to American registry or enrollment and license under this Act,
and vessels owned by any corporation in which the United States is a
stockholder, and vessels sold, leased, or chartered by the board to any
person a citizen of the United States, as provided in this Act, may
engage in the coastwise trade of the United States while owned, leased,
or chartered by such a person.
"Every vessel purchased, chartered, or leased from the board shall,
unless otherwise authorized by the board, be operated only under such
registry or enrollment and license. Such vessels while employed solely
as merchant vessels shall be subject to all laws, regulations, and
liabilities governing merchant vessels, whether the United States be
interested therein as owner, in whole or in part, or hold any mortgage,
lien, or other interest therein.
"It shall be unlawful to sell, transfer or mortgage, or, except under
regulations prescribed by the board, to charter, any vessel purchased
from the board or documented under the laws of the United States to any
person not a citizen of the United States, or to put the same under a
foreign registry or flag, without first obtaining the board's approval.
"Any vessel chartered, sold, transferred or mortgaged to a person not a
citizen of the United States or placed under a foreign registry or flag,
or operated, in violation of any provision of this section shall be
forfeited to the United States, and whoever violates any provision of
this section shall be guilty of a misdemeanor and subject to a fine of
not more than $5,000, or to imprisonment for not more than five years,
or both."
SEC. 19. (1) The board is authorized and directed in aid of the
accomplishment of the purposes of this Act
(a) To make all necessary rules and regulations to carry out the
provisions of this Act;
(b) To make rules and regulations affecting shipping in the foreign
trade not in conflict with law in order to adjust or meet general or
special conditions unfavorable to shipping in the foreign trade, whether
in any particular trade or upon any particular route or in commerce
generally and which arise out of or result from foreign laws, rules, or
regulations or from competitive methods or practices employed by owners,
operators, agents, or masters of vessels of a foreign country; and
(c) To request the head of any department, board, bureau, or agency of
the Government to suspend, modify, or annul rules or regulations which
have been established by such department, board, bureau, or agency, or
to make new rules or regulations affecting shipping in the foreign trade
other than such rules or regulations relating to the Public Health
Service, the Consular Service, and the Steamboat Inspection Service.
(2) No rule or regulation shall hereafter be established by any
department, board, bureau, or agency of the Government which affect
shipping in the foreign trade, except rules or regulations affecting the
Public Health Service, the Consular Service, and the Steamboat
Inspection Service, until such rule or regulation has been submitted to
the board for its approval and final action has been taken thereon by
the board or the President.
(3) Whenever the head of any department, board, bureau, or agency of the
Government refuses to suspend, modify, or annul any rule or regulation,
or make a new rule or regulation upon request of the board, as provided
in subdivision (c) of paragraph (1) of this section, or objects to the
decision of the board in respect to the approval of any rule or
regulation, as provided in paragraph (2) of this section, either the
board or the head of the department, board, bureau, or agency which has
established or is attempting to establish the rule or regulation in
question may submit the facts to the President, who is hereby authorized
to establish or suspend, modify, or annul such rule or regulation.
(4) No rule or regulation shall be established which in any manner gives
vessels owned by the United States any preference or favor over those
vessels documented under the laws of the United States and owned by
persons who are citizens of the United States.
SEC. 20. (1) That section 14 of the Shipping Act, 1916, as amended, is
amended to read as follows:
"SEC. 14. That no common carrier by water shall, directly or indirectly,
in respect to the transportation by water of passengers or property
between a port of a State, Territory, District, or possession of the
United States and any other such port or a port of a foreign country,--
"First. Pay, or allow, or enter into any combination, agreement, or
understanding, express or implied, to pay or allow, a deferred rebate to
any shipper. The term 'deferred rebate' in this Act means a return of
any portion of the freight money by a carrier to any shipper as a
consideration for the giving of all or any portion of his shipments to
the same or any other carrier, or for any other purpose, the payment of
which is deferred beyond the completion of the service for which it is
paid, and is made only if, during both the period for which computed and
the period of deferment, the shipper has complied with the terms of the
rebate agreement or arrangement.
"Second. Use a fighting ship either separately or in conjunction with
any other carrier, through agreement or otherwise. The term 'fighting
ship' in this Act means a vessel used in a particular trade by a carrier
or group of carriers for the purpose of excluding, preventing or
reducing competition by driving another carrier out of said trade.
"Third. Retaliate against any shipper by refusing, or threatening to
refuse, space accommodations when such are available, or resort to other
discriminating or unfair methods, because such shipper has patronized
any other carrier or has filed a complaint charging unfair treatment, or
for any other reason.
"Fourth. Make any unfair or unjustly discriminatory contract with any
shipper based on the volume of freight offered, or unfairly treat or
unjustly discriminate against any shipper in the matter of (a) cargo
space accommodations or other facilities, due regard being had for the
proper loading of the vessel and the available tonnage; (b) the loading
and landing of freight in proper condition; or (c) the adjustment and
settlement of claims.
"Any carrier who violates any provision of this section shall be guilty
of a misdemeanor punishable by a fine of not more than $25,000 for each
offense."
(2) The Shipping Act, 1916, as amended, is amended by inserting after
section 14 a new section to read as follows:
"SEC. 14A. The board upon its own initiative may, or upon complaint
shall, after due notice to all parties in interest and hearing,
determine whether any person, not a citizen of the United States and
engaged in transportation by water of passengers or property--
"(1) Has violated any provision of section 14, or
"(2) Is a party to any combination, agreement, or understanding, express
or implied, that involves in respect to transportation of passengers or
property between foreign ports, deferred rebates or any other unfair
practice designated in section 14, and that excludes from admission upon
equal terms with all other parties thereto, a common carrier by water
which is a citizen of the United States and which has applied for such
admission.
"If the board determines that any such person has violated any such
provision or is a party to any such combination, agreement, or
understanding, the board shall thereupon certify such fact to the
Secretary of Commerce. The Secretary shall thereafter refuse such person
the right of entry for any ship owned or operated by him or by any
carrier directly or indirectly controlled by him, into any port of the
United States, or any Territory, District, or possession thereof, until
the board certifies that the violation has ceased or such combination,
agreement, or understanding has been terminated."
SEC. 21. That from and after February 1, 1922, the coastwise laws of the
United States shall extend to the island Territories and possessions of
the United States not now covered thereby, and the board is directed
prior to the expiration of such year to have established adequate
steamship service at reasonable rates to accommodate the commerce and
the passenger travel of said islands and to maintain and operate such
service until it can be taken over and operated and maintained upon
satisfactory terms by private capital and enterprise: _Provided_, That
if adequate shipping service is not established by February 1, 1922, the
President shall extend the period herein allowed for the establishment
of such service in the case of any island Territory or possession for
such time as may be necessary for the establishment of adequate shipping
facilities therefor: _Provided further_, That until Congress shall have
authorized the registry as vessels of the United States of vessels owned
in the Philippine Islands, the Government of the Philippine Islands is
hereby authorized to adopt, from time to time, and enforce regulations
governing the transportation of merchandise and passengers between ports
or places in the Philippine Archipelago: _And provided further_, That
the foregoing provisions of this section shall not take effect with
reference to the Philippine Islands until the President of the United
States after a full investigation of the local needs and conditions
shall, by proclamation, declare that an adequate shipping service has
been established as herein provided and fix a date for the going into
effect of the same.
SEC. 22. That the Act entitled "An Act giving the United States Shipping
Board power to suspend present provisions of law and permit vessels of
foreign registry and foreign-built vessels admitted to American registry
under the Act of August 18, 1914, to engage in the coastwise trade
during the present war and for a period of one hundred and twenty days
thereafter, except the coastwise trade with Alaska," approved October 6,
1917, is hereby repealed: _Provided_, That all foreign-built vessels
admitted to American registry, owned on February 1, 1920, by persons
citizens of the United States, and all foreign-built vessels owned by
the United States at the time of the enactment of this Act, when sold
and owned by persons citizens of the United States, may engage in the
coastwise trade so long as they continue in such ownership, subject to
the rules and regulations of such trade: _Provided_, That the board is
authorized to issue permits for the carrying of passengers in foreign
ships if it deems it necessary so to do, operating between the Territory
of Hawaii and the Pacific Coast up to February 1, 1922.
SEC. 23. That the owner of a vessel documented under the laws of the
United States and operated in foreign trade shall, for each of the ten
taxable years while so operated, beginning with the first taxable year
ending after the enactment of this Act, be allowed as a deduction for
the purpose of ascertaining his net income subject to the war-profits
and excess-profits taxes imposed by Title III of the Revenue Act of 1918
an amount equivalent to the net earnings of such vessel during such
taxable year, determined in accordance with rules and regulations to be
made by the board: _Provided_, That such owner shall not be entitled to
such deduction unless during such taxable year he invested, or set aside
under rules and regulations to be made by the board in a trust fund for
investment, in the building in shipyards in the United States of new
vessels of a type and kind approved by the board, an amount, to be
determined by the Secretary of the Treasury and certified by him to the
board, equivalent to the war-profits and excess-profits taxes that would
have been payable by such owner on account of the net earnings of such
vessels but for the deduction allowed under the provisions of this
section: _Provided further_, That at least two-thirds of the cost of any
vessel constructed under this paragraph shall be paid for out of the
ordinary funds or capital of the person having such vessel constructed.
That during the period of ten years from the enactment of this Act any
person a citizen of the United States who may sell a vessel documented
under the laws of the United States and built prior to January 1, 1914,
shall be exempt from all income taxes that would be payable upon any of
the proceeds of such sale under Title I, Title II, and Title III of the
Revenue Act of 1918 if the entire proceeds thereof shall be invested in
the building of new ships in American shipyards, such ships to be
documented under the laws of the United States and to be of a type
approved by the board.
SEC. 24. That all mails of the United States shipped or carried on
vessels shall, if practicable, be shipped or carried on American-built
vessels documented under the laws of the United States. No contract
hereafter made with the Postmaster General for carrying mails on vessels
so built and documented shall be assigned or sublet, and no mails
covered by such contract shall be carried on any vessel not so built and
documented. No money shall be paid out of the Treasury of the United
States on or in relation to any such contract for carrying mails on
vessels so built and documented when such contract has been assigned or
sublet or when mails covered by such contract are in violation of the
terms thereof carried on any vessel not so built and documented. The
board and the Postmaster General, in aid of the development of a
merchant marine adequate to provide for the maintenance and expansion of
the foreign or coastwise trade of the United States and of a
satisfactory postal service in connection therewith, shall from time to
time determine the just and reasonable rate of compensation to be paid
for such service, and the Postmaster General is hereby authorized to
enter into contracts within the limits of appropriations made therefor
by Congress to pay for the carrying of such mails in such vessels at
such rate. Nothing herein shall be affected by the Act entitled "An Act
to provide for ocean mail service between the United States and foreign
ports, and to promote commerce," approved March 3, 1891.
SEC. 25. That for the classification of vessels owned by the United
States, and for such other purposes in connection therewith as are the
proper functions of a classification bureau, all departments, boards,
bureaus, and commissions of the Government are hereby directed to
recognize the American Bureau of Shipping as their agency so long as the
American Bureau of Shipping continues to be maintained as an
organization which has no capital stock and pays no dividends:
_Provided_, That the Secretary of Commerce and the chairman of the board
shall each appoint one representative who shall represent the Government
upon the executive committee of the American Bureau of Shipping, and the
bureau shall agree that these representatives shall be accepted by them
as active members of such committee. Such representatives of the
Government shall serve without any compensation, except necessary
traveling expenses: _Provided further_, That the official list of
merchant vessels published by the Government shall hereafter contain a
notation clearly indicating all vessels classed by the American Bureau
of Shipping.
SEC. 26. That cargo vessels documented under the laws of the United
States may carry not to exceed sixteen persons in addition to the crew
between any ports or places in the United States or its Districts,
Territories, or possessions, or between any such port or place and any
foreign port, or from any foreign port to another foreign port, and such
vessels shall not be held to be "passenger vessels" or "vessels carrying
passengers" within the meaning of the inspection laws and the rules and
regulations thereunder: _Provided_, That nothing herein shall be taken
to exempt such vessels from the laws, rules, and regulations respecting
life-saving equipment: _Provided further_, That when any such vessel
carries persons other than the crew as herein provided for, the owner,
agent, or master of the vessel shall first notify such persons of the
presence on board of any dangerous articles, as defined by law, or of
any other condition or circumstances which would constitute a risk of
safety for passenger or crew.
The privilege bestowed by this section on vessels of the United States
shall be extended insofar as the foreign trade is concerned to the cargo
vessels of any nation which allows the like privilege to cargo vessels
of the United States in trades not restricted to vessels under its own
flag.
Failure on the part of the owner, agent, or master of the vessel to give
such notice shall subject the vessel to a penalty of $500, which may be
mitigated or remitted by the Secretary of Commerce upon a proper
representation of the facts.
SEC. 27. That no merchandise shall be transported by water, or by land
and water, on penalty of forfeiture thereof, between points in the
United States, including Districts, Territories, and possessions thereof
embraced within the coastwise laws, either directly or via a foreign
port, or for any part of the transportation, in any other vessel than a
vessel built in and documented under the laws of the United States and
owned by persons who are citizens of the United States, or vessels to
which the privilege of engaging in the coastwise trade is extended by
sections 18 or 22 of this Act: _Provided_, That this section shall not
apply to merchandise transported between points within the continental
United States, excluding Alaska, over through routes heretofore or
hereafter recognized by the Interstate Commerce Commission for which
routes rate tariffs have been or shall hereafter be filed with said
commission when such routes are in part over Canadian rail lines and
their own or other connecting water facilities: _Provided further_, That
this section shall not become effective upon the Yukon river until the
Alaska Railroad shall be completed and the Shipping Board shall find
that proper facilities will be furnished for transportation by persons
citizens of the United States for properly handling the traffic.
SEC. 28. That no common carrier shall charge, collect, or receive, for
transportation subject to the Interstate Commerce Act of persons or
property, under any joint rate, fare, or charge, or under any export,
import, or other proportional rate, fare, or charge, which is based in
whole, or in part on the fact that the persons or property affected
thereby is to be transported to, or has been transported from, any port
in a possession or dependency of the United States, or in a foreign
country, by a carrier by water in foreign commerce, any lower rate,
fare, or charge than that charged, collected, or received by it for the
transportation of persons, or of a like kind of property, for the same
distance, in the same direction, and over the same route, in connection
with commerce wholly within the United States, unless the vessel so
transporting such persons or property is, or unless it was at the time
of such transportation by water, documented under the laws of the United
States. Whenever the board is of the opinion, however, that adequate
shipping facilities to or from any port in a possession or dependency of
the United States or a foreign country are not afforded by vessels so
documented, it shall certify this fact to the Interstate Commerce
Commission, and the commission may, by order, suspend the operation of
the provisions of this section with respect to the rates, fares, and
charges for the transportation by rail of persons and property
transported from, or to be transported, to such ports, for such length
of time and under such terms and conditions as it may prescribe in such
order, or in any order supplemental thereto. Such suspension of
operation of the provisions of this section may be terminated by order
of the commission whenever the board is of the opinion that adequate
shipping facilities by such vessels to such ports are afforded and shall
so certify to the commission.
SEC. 29. (a) That whenever used in this section--
(1) The term "association" means any association, exchange, pool,
combination, or other arrangement for concerted action; and
(2) The term "marine insurance companies" means any persons, companies,
or associations, authorized to write marine insurance or reinsurance
under the laws of the United States or of a State, Territory, District,
or possession thereof.
(b) Nothing contained in the "antitrust laws" as designated in section 1
of the Act entitled "An Act to supplement existing laws against unlawful
restraints and monopolies, and for other purposes," approved October 15,
1914, shall be construed as declaring illegal an association entered
into by marine insurance companies for the following purposes: To
transact a marine insurance and reinsurance business in the United
States and in foreign countries and to reinsure or otherwise apportion
among its membership the risks undertaken by such association or any of
the component members.
SEC. 30. Subsection A. That this section may be cited as the "Ship
Mortgage Act, 1920."
DEFINITIONS.
Subsection B. When used in this section--
(1) The term "document" includes registry and enrollment and license;
(2) The term "documented" means registered or enrolled or licensed under
the laws of the United States, whether permanently or temporarily;
(3) The term "port of documentation" means the port at which the vessel
is documented, in accordance with law;
(4) The term "vessel of the United States" means any vessel documented
under the laws of the United States and such vessel shall be held to
continue to be so documented until its documents are surrendered with
the approval of the board; and
(5) The term "mortgagee," in the case of a mortgage involving a trust
deed and a bond issue thereunder, means the trustee designated in such
deed.
RECORDING OF SALES, CONVEYANCES, AND MORTGAGES OF VESSELS OF THE UNITED
STATES.
Subsection C. (a) 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, as
provided in subdivision (b) of this subsection.
(b) Such collector of customs shall record bills of sale, conveyances,
and mortgages, delivered to him, in the order of their reception, in
books to be kept for that purpose and indexed to show--
(1) The name of the vessel;
(2) The names of the parties to the sale, conveyance, or mortgage;
(3) The time and date of reception of the instrument;
(4) The interest in the vessel so sold, conveyed, or mortgaged; and
(5) The amount and date of maturity of the mortgage.
Subsection D. (a) A valid mortgage which, at the time it is made
includes the whole of any vessel of the United States of 200 gross tons
and upwards, shall in addition have, in respect to such vessel and as of
the date of the compliance with all the provisions of this subdivision,
the preferred status given by the provisions of subsection M, if--
(1) The mortgage is indorsed upon the vessel's documents in accordance
with the provisions of this section;
(2) The mortgage is recorded as provided in subsection C, together with
the time and date when the mortgage is so indorsed;
(3) An affidavit is filed with the record of such mortgage to the effect
that the mortgage is made in good faith and without any design to
hinder, delay, or defraud any existing or future creditor of the
mortgagor or any lienor of the mortgaged vessel;
(4) The mortgage does not stipulate that the mortgagee waives the
preferred status thereof; and
(5) The mortgagee is a citizen of the United States.
(b) Any mortgage which complies in respect to any vessel with the
conditions enumerated in this subsection is hereafter in this section
called a "preferred mortgage" as to such vessel.
(c) There shall be indorsed upon the documents of a vessel covered by a
preferred mortgage--
(1) The name of the mortgagor and mortgagee;
(2) The time and date the indorsement is made;
(3) The amount and date of maturity of the mortgage; and
(4) Any amount required to be indorsed by the provisions of subdivision
(e) or (f) of this subsection.
(d) Such indorsement shall be made (1) by the collector of customs of
the port of documentation of the mortgaged vessel, or (2) by the
collector of customs of any port in which the vessel is found, if such
collector is directed to make the indorsement by the collector of
customs of the port of documentation; and no clearance shall be issued
to the vessel until such indorsement is made. The collector of customs
of the port of documentation shall give such direction by wire or letter
at the request of the mortgagee and upon the tender of the cost of
communication of such direction. Whenever any new document is issued for
the vessel, such indorsement shall be transferred to and indorsed upon
the new document by the collector of customs.
(e) A mortgage which includes property other than a vessel shall not be
held a preferred mortgage unless the mortgage provides for the separate
discharge of such property by the payment of a specified portion of the
mortgage indebtedness. If a preferred mortgage so provides for the
separate discharge, the amount of the portion of such payment shall be
indorsed upon the documents of the vessel.
(f) If a preferred mortgage includes more than one vessel and provides
for the separate discharge of each vessel by the payment of a portion of
the mortgage indebtedness, the amount of such portion of such payment
shall be indorsed upon the documents of the vessel. In case such
mortgage does not provide for the separate discharge of a vessel and the
vessel is to be sold upon the order of a district court of the United
States in a suit in rem in admiralty, the court shall determine the
portion of the mortgage indebtedness increased by 20 per centum (1)
which, in the opinion of the court, the approximate value of the vessel
bears to the approximate value of all the vessels covered by the
mortgage, and (2) upon the payment of which the vessel shall be
discharged from the mortgage.
Subsection E. The collector of customs upon the recording of a preferred
mortgage shall deliver two certified copies thereof to the mortgagor who
shall place, and use due diligence to retain, one copy on board the
mortgaged vessel and cause such copy and the documents of the vessel to
be exhibited by the master to any person having business with the
vessel, which may give rise to a maritime lien upon the vessel or to the
sale, conveyance, or mortgage thereof. The master of the vessel shall,
upon the request of any such person, exhibit to him the documents of the
vessel and the copy of any preferred mortgage of the vessel placed on
board thereof.
Subsection F. The mortgagor (1) shall, upon request of the mortgagee,
disclose in writing to him prior to the execution of any preferred
mortgage, the existence of any maritime lien, prior mortgage, or other
obligation or liability upon the vessel to be mortgaged, that is known
to the mortgagor, and (2), without the consent of the mortgagee, shall
not incur, after the execution of such mortgage and before the mortgagee
has had a reasonable time in which to record the mortgage and have
indorsements in respect thereto made upon the documents of the vessel,
any contractual obligation creating a lien upon the vessel other than a
lien for wages of stevedores when employed directly by the owner,
operator, master, ship's husband, or agent of the vessel, for wages of
the crew of the vessel, for general average, or for salvage, including
contract salvage, in respect to the vessel.
Subsection G. (a) The collector of customs of the port of documentation
shall, upon the request of any person, record notice of his claim of a
lien upon a vessel covered by a preferred mortgage, together with the
nature, date of creation, and amount of the lien, and the name and
address of the person. Any person who has caused notice of his claim of
lien to be so recorded shall, upon a discharge in whole or in part of
the indebtedness, forthwith file with the collector of customs a
certificate of such discharge. The collector of customs shall thereupon
record the certificate.
(b) The mortgagor, upon a discharge in whole or in part of the mortgage
indebtedness, shall forthwith file with the collector of customs for the
port of documentation of the vessel, a certificate of such discharge.
Such collector of customs shall thereupon record the certificate. In
case of a vessel covered by a preferred mortgage, the collector of
customs at the port of documentation shall (1) indorse upon the
documents of the vessel, or direct the collector of customs at any port
in which the vessel is found, to so indorse, the fact of such discharge,
and (2) shall deny clearance to the vessel until such indorsement is
made.
Subsection H. (a) No bill of sale, conveyance, or mortgage shall be
recorded unless it states the interest of the grantor or mortgagor in
the vessel, and the interest so sold, conveyed, or mortgaged.
(b) No bill of sale, conveyance, mortgage, notice of claim of lien, or
certificate of discharge thereof, shall be recorded unless previously
acknowledged before a notary public or other officer authorized by a law
of the United States, or of a State, Territory, District, or possession
thereof, to take acknowledgment of deeds.
(c) In case of a change in the port of documentation of a vessel of the
United States, no bill of sale, conveyance, or mortgage shall be
recorded at the new port of documentation unless there is furnished to
the collector of customs of such port, together with the copy of the
bill of sale, conveyance, or mortgage to be recorded, a certified copy
of the record of the vessel at the former port of documentation
furnished by the collector of such port. The collector of customs at the
new port of documentation is authorized and directed to record such
certified copy.
(d) A preferred mortgage may bear such rate of interest as is agreed by
the parties thereto.
Subsection I. Each collector of customs shall permit records made under
the provisions of this section to be inspected during office hours,
under such reasonable regulations as the collector may establish. Upon
the request of any person the collector of customs shall furnish him
from the records of the collector's office (1) a certificate setting
forth the names of the owners of any vessel, the interest held by each
owner, and the material facts as to any bill of sale or conveyance of,
any mortgage covering, or any lien or other incumbrance upon, a
specified vessel, (2) a certified copy of any bill of sale, conveyance,
mortgage, notice of claim of lien, or certificate of discharge in
respect to such vessel, or (3) a certified copy as required by
subdivision (c) of subsection H. The collector of customs shall collect
a fee for any bill of sale, conveyance, or mortgage recorded, or any
certificate or certified copy furnished, by him, in the amount of 20
cents a folio with a minimum charge of $1.00. All such fees shall be
covered into the Treasury of the United States as miscellaneous receipts.
PENALTIES.
Subsection J. (a) If the master of the vessel willfully fails to exhibit
the documents of the vessel or the copy of any preferred mortgage
thereof, as required by subsection E, the board of local inspectors of
vessels having jurisdiction of the license of the master, may suspend or
cancel such license, subject to the provisions of "An Act to provide for
appeals from decision of boards of local inspectors of vessels and for
other purposes," approved June 10, 1918.
(b) A mortgagor who, with intent to defraud, violates any provision of
subsection F, and if the mortgagor is a corporation or association, the
president or other principal executive officer of the corporation or
association, shall upon conviction thereof be held guilty of a
misdemeanor and shall be fined not more than $1,000 or imprisonment not
more than 2 years, or both. The mortgaged indebtedness shall thereupon
become immediately due and payable at the election of the mortgagee.
(c) If any person enters into any contract secured by, or upon the
credit of, a vessel of the United States covered by a preferred
mortgage, and suffers pecuniary loss by reason of the failure of the
collector of customs, or any officer, employee, or agent thereof,
properly to perform any duty required of the collector under the
provisions of this section, the collector of customs shall be liable to
such person for damages in the amount of such loss. If any such person
is caused any such loss by reason of the failure of the mortgagor, or
master of the mortgaged vessel, or any officer, employee, or agent
thereof, to comply with any provision of subsection E or F or to file an
affidavit as required by subdivision (a) of subsection D, correct in
each particular thereof, the mortgagor shall be liable to such person
for damages in the amount of such loss. The district courts of the
United States are given jurisdiction (but not to the exclusion of the
courts of the several States, Territories, Districts, or possessions) of
suits for the recovery of such damages, irrespective of the amount
involved in the suit or the citizenship of the parties thereto. Such
suit shall be begun by personal service upon the defendant within the
limits of the district. Upon judgment for the plaintiff in any such
suit, the court shall include in the judgment an additional amount for
costs of the action and a reasonable counsel's fee, to be fixed by the
court.
FORECLOSURE OF PREFERRED MORTGAGES.
Subsection K. A preferred mortgage shall constitute a lien upon the
mortgaged vessel in the amount of the outstanding mortgage indebtedness
secured by such vessel. Upon the default of any term or condition of the
mortgage, such lien may be enforced by the mortgagee by suit in rem in
admiralty. Original jurisdiction of all such suits is granted to the
district courts of the United States exclusively. In addition to any
notice by publication, actual notice of the commencement of any such
suit shall be given by the libellant, in such manner as the court shall
direct, to (1) the master, other ranking officer, or caretaker of the
vessel, and (2) any person who has recorded a notice of claim of an
undischarged lien upon the vessel, as provided in subsection G, unless
after search by the libellant satisfactory to the court, such mortgagor,
master, other ranking officer, caretaker, or claimant is not found
within the United States. Failure to give notice to any such person, as
required by this subsection, shall not constitute a jurisdictional
defect; but the libellant shall be liable to such person for damages in
the amount of his interest in the vessel terminated by the suit. Suit in
personam for the recovery of such damages may be brought in accordance
with the provisions of subdivision (c) of subsection J.
Subsection L. In any suit in rem in admiralty for the enforcement of the
preferred mortgage lien, the court may appoint a receiver and, in its
discretion, authorize the receiver to operate the mortgaged vessel. The
marshal may be authorized and directed by the court to take possession
of the mortgaged vessel notwithstanding the fact that the vessel is in
the possession or under the control of any person claiming a possessory
common-law lien.
Subsection M. (a) When used hereinafter in this section, the term
"preferred maritime lien" means (1) a lien arising prior in time to the
recording and indorsement of a preferred mortgage in accordance with the
provisions of this section; or (2) a lien for damages arising out of
tort, for wages of a stevedore when employed directly by the owner,
operator, master, ship's husband, or agent of the vessel, for wages of
the crew of the vessel, for general average, and for salvage, including
contract salvage.
(b) Upon the sale of any mortgaged vessel by order of a district court
of the United States in any suit in rem in admiralty for the enforcement
of a preferred mortgage lien thereon, all preëxisting claims in the
vessel, including any possessory common-law lien of which a lienor is
deprived under the provisions of subsection L shall be held terminated
and shall thereafter attach, in like amount and in accordance with their
respective priorities, to the proceeds of the sale; except that the
preferred mortgage lien shall have priority over all claims against the
vessel, except (1) preferred maritime liens, and (2) expenses and fees
allowed and costs taxed, by the court.
Subsection N. (a) Upon the default of any term or condition of a
preferred mortgage upon a vessel, the mortgagee may, in addition to all
other remedies granted by this section, bring suit in personam in
admiralty in a district court of the United States, against the
mortgagor for the amount of the outstanding mortgage indebtedness
secured by such vessel or any deficiency in the full payment thereof.
(b) This section shall not be construed, in the case of a mortgage
covering, in addition to vessels, realty or personalty other than
vessels, or both, to authorize the enforcement by suit in rem in
admiralty of the rights of the mortgagee in respect to such realty or
personalty other than vessels.
TRANSFERS OF MORTGAGED VESSELS AND ASSIGNMENT OF VESSEL MORTGAGES.
Subsection O. (a) The documents of a vessel of the United States covered
by a preferred mortgage may not be surrendered (except in the case of
the forfeiture of the vessel or its sale by the order of any court of
the United States or any foreign country) without the approval of the
board. The board shall refuse such approval unless the mortgagee
consents to such surrender.
(b) The interest of the mortgagee in a vessel of the United States
covered by a mortgage, shall not be terminated by the forfeiture of the
vessel for a violation of any law of the United States, unless the
mortgagee authorized, consented, or conspired to effect the illegal act,
failure, or omission which constituted such violation.
(c) Upon the sale of any vessel of the United States covered by a
preferred mortgage, by order of a district court of the United States in
any suit in rem in admiralty for the enforcement of a maritime lien
other than a preferred maritime lien, the vessel shall be sold free from
all preëxisting claims thereon; but the court shall, upon the request of
the mortgagee, the libellant, or an intervenor, require the purchaser at
such sale to give and the mortgagor to accept a new mortgage of the
vessel for the balance of the term of the original mortgage. The
conditions of such new mortgage shall be the same, so far as
practicable, as those of the original mortgage and shall be subject to
the approval of the court. If such new mortgage is given, the mortgagee
shall not be paid from the proceeds of the sale and the amount payable
as the purchase price shall be held diminished in the amount of the new
mortgage indebtedness.
(d) No rights under a mortgage of a vessel of the United States shall be
assigned to any person not a citizen of the United States without the
approval of the board. Any assignment in violation of any provision of
this section shall be void.
(e) No vessel of the United States shall be sold by order of a district
court of the United States in any suit in rem in admiralty to any person
not a citizen of the United States.
MARITIME LIENS FOR NECESSARIES.
Subsection P. Any person furnishing repairs, supplies, towage, use of
dry dock or marine railway, or other necessaries, to any vessel, whether
foreign or domestic, upon the order of the owner of such vessel, or of a
person authorized by the owner, shall have a maritime lien on the
vessel, which may be enforced by suit in rem, and it shall not be
necessary to allege or prove that credit was given to the vessel.
Subsection Q. The following persons shall be presumed to have authority
from the owner to procure repairs, supplies, towage, use of dry dock or
marine railway, and other necessaries for the vessel: The managing
owner, ship's husband, master, or any person to whom the management of
the vessel at the port of supply is intrusted. No person tortiously or
unlawfully in possession or charge of a vessel shall have authority to
bind the vessel.
Subsection R. The officers and agents of a vessel specified in
subsection Q shall be taken to include such officers and agents when
appointed by a charterer, by an owner pro hac vice, or by an agreed
purchaser in possession of the vessel; but nothing in this section shall
be construed to confer a lien when the furnisher knew, or by exercise of
reasonable diligence could have ascertained, that because of the terms
of a charter party, agreement for sale of the vessel, or for any other
reason, the person ordering the repairs, supplies, or other necessaries
was without authority to bind the vessel therefor.
Subsection S. Nothing in this section shall be construed to prevent the
furnisher of repairs, supplies, towage, use of dry dock or marine
railway, or other necessaries, or the mortgagee, from waiving his right
to a lien, or in the case of a preferred mortgage lien, to the preferred
status of such lien, at any time, by agreement or otherwise; and this
section shall not be construed to affect the rules of law now existing
in regard to (1) the right to proceed against the vessel for advances,
(2) laches in the enforcement of liens upon vessels, (3) the right to
proceed in personam, (4) the rank of preferred maritime liens among
themselves, or (5) priorities between maritime liens and mortgages,
other than preferred mortgages, upon vessels of the United States.
Subsection T. This section shall supersede the provisions of all State
statutes conferring liens on vessels, in so far as such statutes purport
to create rights of action to be enforced by suits in rem in admiralty
against vessels for repairs, supplies, towage, use of dry dock or marine
railway, and other necessaries.
MISCELLANEOUS PROVISIONS.
Subsection U. This section shall not apply (1) to any existing mortgage,
or (2) to any mortgage hereafter placed on any vessel now under an
existing mortgage, so long as such existing mortgage remains
undischarged.
Subsection V. The Secretary of Commerce is authorized and directed to
furnish collectors of customs with all necessary books and records, and
with certificates of registry and of enrollment and license in such form
as provides for the making of all indorsements thereon required by this
section.
Subsection W. The Secretary of Commerce is authorized to make such
regulations in respect to the recording and indorsing of mortgages
covering vessels of the United States, as he deems necessary to the
efficient execution of the provisions of this section.
Subsection X. Sections 4192 to 4196, inclusive, of the Revised Statutes
of the United States, as amended, and the Act entitled "An Act relating
to liens on vessels for repairs, supplies, or other necessaries,"
approved June 23, 1910, are repealed. This section, however, so far as
not inconsistent with any of the provisions of law so repealed, shall be
held a reënactment of such repealed law, and any right or obligation
based upon any provision of such law and accruing prior to such repeal,
may be prosecuted in the same manner and to the same effect as if this
Act had not been passed.
SEC. 31. That section 4530 of the Revised Statutes of the United States
is amended to read as follows:
"SEC. 4530. Every seaman on a vessel of the United States shall be
entitled to receive on demand from the master of the vessel to which he
belongs one-half part of the balance of his wages earned and remaining
unpaid at the time when such demand is made at every port where such
vessel, after the voyage has been commenced, shall load or deliver cargo
before the voyage is ended, and all stipulations in the contract to the
contrary shall be void: _Provided_, Such a demand shall not be made
before the expiration of, nor oftener than once in, five days nor more
than once in the same harbor on the same entry. Any failure on the part
of the master to comply with this demand shall release the seaman from
his contract and he shall be entitled to full payment of wages earned.
And when the voyage is ended every such seaman shall be entitled to the
remainder of the wages which shall be then due him, as provided in
section 4529 of the Revised Statutes: _Provided further_, That
notwithstanding any release signed by any seaman under section 4552 of
the Revised Statutes any court having jurisdiction may upon good cause
shown set aside such release and take such action as justice shall
require: _And provided further_, That this section shall apply to seamen
on foreign vessels while in harbors of the United States, and the courts
of the United States shall be open to such seamen for its enforcement."
SEC. 32. That paragraph (a) of section 10 of the Act entitled "An Act to
remove certain burdens on the American merchant marine and encourage the
American foreign carrying trade, and for other purposes," approved June
26, 1884, as amended, is hereby amended to read as follows:
"SEC. 10. (a) That it shall be, and is hereby, made unlawful in any case
to pay any seaman wages in advance of the time when he has actually
earned the same, or to pay such advance wages, or to make any order, or
note, or other evidence of indebtedness therefor to any other person, or
to pay any person, for the shipment of seamen when payment is deducted
or to be deducted from a seaman's wages. Any person violating any of the
foregoing provisions of this section shall be deemed guilty of a
misdemeanor, and upon conviction shall be punished by a fine of not less
than $25 nor more than $100, and may also be imprisoned for a period of
not exceeding six months, at the discretion of the court. The payment of
such advance wages or allotment, whether made within or without the
United States or territory subject to the jurisdiction thereof, shall in
no case except as herein provided absolve the vessel or the master or
the owner thereof from the full payment of wages after the same shall
have been actually earned, and shall be no defense to a libel suit or
action for the recovery of such wages. If any person shall demand or
receive, either directly or indirectly, from any seaman or other person
seeking employment, as seaman, or from any person on his behalf, any
remuneration whatever for providing him with employment, he shall for
every such offense be deemed guilty of a misdemeanor and shall be
imprisoned not more than six months or fined not more than $500."
SEC. 33. That section 20 of such Act of March 4, 1915, be, and is,
amended to read as follows:
"SEC. 20. That any seaman who shall suffer personal injury in the course
of his employment may, at his election, maintain an action for damages
at law, with the right of trial by jury, and in such action all statutes
of the United States modifying or extending the common-law right or
remedy in cases of personal injury to railway employees shall apply; and
in case of the death of any seaman as a result of any such personal
injury the personal representative of such seaman may maintain an action
for damages at law with the right of trial by jury, and in such action
all statutes of the United States conferring or regulating the right of
action for death in the case of railway employees shall be applicable.
Jurisdiction in such actions shall be under the court of the district in
which the defendant employer resides or in which his principal office is
located."
SEC. 34. That in the judgment of Congress, articles or provisions in
treaties or conventions to which the United States is a party, which
restrict the right of the United States to impose discriminating customs
duties on imports entering the United States in foreign vessels and in
vessels of the United States, and which also restrict the right of the
United States to impose discriminatory tonnage dues on foreign vessels
and on vessels of the United States entering the United States should be
terminated, and the President is hereby authorized and directed within
ninety days after this Act becomes law to give notice to the several
Governments, respectively, parties to such treaties or conventions, that
so much thereof as imposes any such restriction on the United States
will terminate on the expiration of such periods as may be required for
the giving of such notice by the provisions of such treaties or
conventions.
SEC. 35. That the power and authority vested in the board by this Act,
except as herein otherwise specifically provided, may be exercised
directly by the board, or by it through the United States Shipping Board
Emergency Fleet Corporation.
SEC. 36. That if any provision of this Act is declared unconstitutional
or the application of any provision to certain circumstances be held
invalid, the remainder of the Act and the application of such provisions
to circumstances other than those as to which it is held invalid shall
not be affected thereby.
SEC. 37. That when used in this Act, unless the context otherwise
requires, the terms "person," "vessel," "documented under the laws of
the United States," and "citizen of the United States" shall have the
meaning assigned to them by sections 1 and 2 of the "Shipping Act,
1916," as amended by this Act; the term "board" means the United States
Shipping Board; and the term "alien" means any person not a citizen of
the United States.
SEC. 38. That section 2 of the Shipping Act, 1916, is amended to read as
follows:
"SEC. 2. (a) That within the meaning of this Act no corporation,
partnership, or association shall be deemed a citizen of the United
States unless the controlling interest therein is owned by citizens of
the United States, and, in the case of a corporation, unless its
president and managing directors are citizens of the United States and
the corporation itself is organized under the laws of the United States
or of a State, Territory, District, or possession thereof, but in the
case of a corporation, association, or partnership operating any vessel
in the coastwise trade the amount of interest required to be owned by
citizens of the United States shall be 75 per centum.
"(b) The controlling interest in a corporation shall not be deemed to be
owned by citizens of the United States (a) if the title to a majority of
the stock thereof is not vested in such citizens free from any trust or
fiduciary obligation in favor of any person not a citizen of the United
States; or (b) if the majority of the voting power in such corporations
is not vested in citizens of the United States; or (c) if through any
contract or understanding it is so arranged that the majority of the
voting power may be exercised, directly or indirectly, in behalf of any
person who is not a citizen of the United States; or (d) if by any other
means whatsoever control of the corporation is conferred upon or
permitted to be exercised by any person who is not a citizen of the
United States.
"(c) Seventy-five per centum of the interest in a corporation shall not
be deemed to be owned by citizens of the United States (a) if the title
to 75 per centum of its stock is not vested in such citizens free from
any trust or fiduciary obligation in favor of any person not a citizen
of the United States; or (b) if 75 per centum of the voting power in
such corporations is not vested in citizens of the United States; or (c)
if, through any contract or understanding it is so arranged that more
than 25 per centum of the voting power in such corporation may be
exercised, directly or indirectly, in behalf of any person who is not a
citizen of the United States; or (d) if by any other means whatsoever
control of any interest in the corporation in excess of 25 per centum is
conferred upon or permitted to be exercised by any person who is not a
citizen of the United States.
"(d) The provisions of this Act shall apply to receivers and trustees of
all persons to whom the Act applies, and to the successors or assignees
of such persons."
SEC. 39. That this Act may be cited as the Merchant Marine Act, 1920.
Approved June 5, 1920.
[34] Public, No. 261, 66th Congress.
An Act to provide for the promotion and maintenance of the American
merchant marine, to repeal certain emergency legislation, and provide
for the disposition, regulation, and use of property acquired
thereunder, and for other purposes.
APPENDIX III
PROTEST
The following is a specimen of a marine protest. It is taken from
Lawrence _v._ Minturn, 17 How. 100. It was signed by all the officers
and by such of the crew as could write:
August 29, 1851, Latitude 31° 0´ N., Longitude 61° 5´ W.
At sea, on board ship _Hornet_ of New York, William W. Lawrence,
master, bound from New York to San Francisco, California.
We, the undersigned, master, officers and mariners of the ship _Hornet_,
of New York, do, after mature and serious deliberation, enter this
solemn protest: That on August 26th, 1851, the ship _Hornet_ being then
in or about the longitude of 49° W., latitude 37° N., experiencing a
gale of wind from the south, veering to N. W.: and that during said
gale, which lasted until the night of the 27th of August, the weight of
the deck load, consisting of two boilers, with furnaces attached, and
two steam chimneys (the whole supposed to be of the weight of forty tons
or thereabouts), did cause the ship to labor very hard, rolling gunwale
deep, shipping large bodies of water, straining the ship in her upper
works and decks, causing the ship to leak badly, and her pumps
constantly worked, placing our lives, ship and cargo in imminent peril
for their safety. We now, therefore, do most seriously and solemnly
assert, that for the future preservation of the ship, and thereby our
lives and cargo, the said boilers, furnaces and chimneys are unsafe on
the decks, and for the safety of the whole should be thrown overboard as
soon as possible, the weather and sea permitting.
In testimony whereof to the above, we hereby subscribe our respective
names.
TABLE OF CASES
PAGE
Aguan, 48 Fed. 320 53
Albany, The, 44 Fed. 431 46, 188, 206
Albert Dumois, 177 U. S. 240 151
Albina Ferry Co. _v._ Imperial and S. G. Reed, 38 Fed. 614 167
Allanwilde Transport Corp. _v._ Vacuum Co., 248 U. S. 377 90
Ambrose Light, 25 Fed. 408 199
Amelie, 6 Wall. (U. S.) 18 20, 50
America. _See_ Eads _v._ Brazelton, 22 Ark. 499 208
America. _See_ Gracie _v._ Palmer, 8 Wheat. (U. S.) 605 95
American Sugar Refining Co. _v._ Maddock, 93 Fed. 980 42
Ancaios, 170 Fed. 106 53
Anderson _v._ Munson, 104 Fed. 913 102
Arcturus, 17 Fed. 95 44
Atlantic, 53 Fed. 607 41, 129
Atlas, 3 Otto (U. S.) 302 152
Atlee _v._ Union Packet Co., 21 Wall. (U. S.) 389 148, 215
Attorney General's Opinion, 29 Op. 188 27
Aurora, 1 Wheat. (U. S.) 96 50, 140
Australasian Steam Navigation Co. _v._ Morse, L. R. 4 P. S. 222,
1 Aspin. 407, 27 LT. Rep. N. S. 357, 8 Moore P. C. N. S. 482,
20 Weekly Rep. 728, 17 Eng. Reprint 393 47
Barker _v._ The Swallow, 44 Fed. 771 73
Barnard _v._ Adams, 10 How. (U. S.) 270 189
Barnstable, 181 U. S. 464 33, 104
Behrens _v._ Furnessia, 35 Fed. 798 82
Belden _v._ Chase, 150 U. S. 674 150
Belfast, 7 Wall. (U. S.) 624 4
Belgenland, 114 U. S. 355 158
Benefactor, 103 U. S. 247 124
Blake, 107 U. S. 418 147
Bold Buccleugh, The, 7 Moore P. C. 267 130
Boskenna Bay, 36 Fed. 697 110
Boston, The, Blatch & H. 309 40
Bowring _v._ Thebaud, 56 Fed. 520 87
Boyce _v._ Bayliffe, 1 Campbell 58 80
Brewster, 95 Fed. 1000 49
Bristol, 29 Fed. 867 126
Brown _v._ Lull, 2 Sumner 559 54
Bulkley _v._ Insurance Co., Fed. Cas. No. 2, 118 89
Burlington, 73 Fed. 258 188
Burrill, 65 Fed. 104 111
Burt. _See_ Murphy _v._ Dunham, 38 Fed. 503 188, 202, 206
Calderon _v._ Atlas Steamship Co., 170 U. S. 272,
42 L. ed. 1033 100
Caledonia, 157 U. S. 124 70
Calypso, 230 Fed. 962 41
Carib Prince, 170 U. S. 655 121
Catalonia, 236 Fed. 554 68
Cayuga, 16 Wall. (U. S.) 177 168
Centurion, 57 Fed. 412 110
Cervantes, 135 Fed. 573 31
Chamberlain _v._ Chandler, 3 Mason 242 80
Chamberlain _v._ Ward, 21 How. (U. S.) 548 31
Charlotte, The, 3 W. Rob. Adm. 68 184
Chicago, 235 Fed. 538 68
China, The, 7 Wall. (U. S.) 53 126, 174, 178
Citizen. _See_ Quickstep, 9 Wall. (U. S.) 665 163
City of Norwich, 118 U. S. 468 123, 124
City of Panama, 101 U. S. 453 82
Civilta and Restless, 13 Otto 699 167, 169
Clara Clarita, 23 Wall. (U. S.) 1 166, 169
Clark _v._ Burns, 118 Mass. 275 79
Clifton, The, 3 Hagg. Adm. 14, 48 180
Compania de Navigacion La Flecha _v._ Brauer, 168 U. S. 104 93
Company _v._ Dexter, 52 Fed. 152 41
Constable _v._ National Steamship Co., 154 U. S. 51 76, 90
Cope _v._ Drydock Co., 119 U. S. 625 180
Craig _v._ Insurance Co., 141 U. S. 638 204
Crapo _v._ Kelly, 16 Wall. 610 15
Crossman _v._ Burrill, 179 U. S. 100 110
Dallemagne _v._ Moison, 197 U. S. 169 68
Dan, 40 Fed. 691 85
Daniel Kane, The, 35 Fed. 785 26
Davidson _v._ Baldwin, 79 Fed. 95 36
Davies _v._ Mann, 10 M. & W. 546 217
Delaware Ins. Co. _v._ Gossler, 6 Otto (U. S.) 645 140
Dempster Shipping Co. _v._ Pouppirt, 125 Fed. 732 82
Dene, 103 Fed. 983 111
DeSmet, The, 10 Fed. 483 137
Dixie, 46 Fed. 403 111
Dixon _v._ Whitworth, 4 Asp. M. L. C. 138, 327 188
Dutton _v._ Strong, 1 Black 23 212, 215
Dyer. _See_ Scotland, 118 U. S. 507 123
Eads _v._ Brazelton, 22 Arkansas 499 208
Edgar F. Coney. _See_ Marie Palmer, 191 Fed. 79 161
Egypt. _See_ Constable _v._ National Steamship Co.,
154 U. S. 51 76
Ellis Warley. _See_ North Star, 106 U. S. 17 156
Elton, 83 Fed. 519 45
Ely, 110 Fed. 563 111
Emily B. Souder, 15 Blatch. 185, Fed. Cas. No. 4, 458 184
Empire Shipbuilding Co., 221 Fed. 223 144
Endora, 190 U. S. 169 68
Erastina, 50 Fed. 126 160
Europa, 2 Eng. L. & E. 559 149
Fair American, 1 Peters Adm. 87, 4 Fed. Cas. No. 1874 184
Field Line _v._ South Atlantic Co., 201 Fed. 301 92
Fitzgerald, 212 Fed. 678 85
Fleming _v._ Fire Assoc., 147 Mich. 404 24
Fortuna. _See_ Barnstable, 181 U. S. 464 104
Frances. _See_ Delaware Ins. Co. _v._ Gossler,
6 Otto (U. S.) 645 140
Francis, 21 Fed. 715 110
Freeman, 18 How. (U. S.) 182 34, 42, 92
Future City, 184 U. S. 247 216
Gardner _v._ Gold coins, 111 Fed. 552 187
Garland, The, 16 Fed. 283 18, 135
General Cass, 1 Brown Adm. 334 2
Germania Ins. Co. _v._ Lady Pike, 21 Wall. (U. S.) 1 72
Gillespie _v._ Winberg, 4 Daly (N. Y.) 318 38
Goddard, T. A., 12 Fed. 174 104
Gould _v._ Jacobson, 58 Mich. 288 18
Gracie _v._ Palmer, 8 Wheat. (U. S.) 605 95
Grant _v._ Norway, 10 C. B. 665 42
Grant _v._ Poillon, 20 How. (U. S.) 162 4
Grapeshot, 9 Wall. (U. S.) 129 139, 147
Gratitudine, The, 3 C. Rob. Adm. 240 189
Great Eastern, 24 Fed. Cas. 14, 110 183
Guildhall, 58 Fed. 796 93
Hagar _v._ Clark, 78 N. Y. 45 91
Hales. _See_ Niagara, 77 Fed. 329 153
Hamilton, The, 207 U. S. 398 15
Harlem, 27 Fed. 236 85
Hattie Thomas, 29 Fed. 297 41
Hattie P., 63 Fed. 1015 85
Hector. _See_ Sturgis _v._ Boyer, 24 How. (U. S.) 110 170
Hercules, 28 Fed. 475 213
Herman _v._ Mill, 69 Fed. 646 126
Hobart _et al_ _v._ Drogan, 10 Peters (U. S.) 108 184
Holmes, 1 Wall. Jr. 1, 26 Fed. Cas. No. 15, 383 194
Hopkins _v._ Forsyth, 14 Pa. St. 38 27
Hornet, The. _See_ Lawrence _v._ Minturn,
17 How. (U. S.) 100 74, 189
Hostetter _v._ Park, 137 U. S. 30 88
Hough _v._ Western Transportation Co.,
3 Wall. (U. S.) 20 4, 32, 126
Hunter _v._ Prinsep, 10 East 378 77
Huus _v._ Co., 182 U. S. 392, 395 12, 24
Imberhorne, 240 Fed. 830 68
Indrapura, 171 Fed. 929 88
Insurance Co. _v._ Dunham, 11 Wall. (U. S.) 1 4
Intrepid. _See_ Liverpool &c. Navigation Co. _v._ Brooklyn
Eastern Dist. Terminal, U. S. Supreme Court Advance
Sheets, 85 170
Ixion, 237 Fed. 142 68
Jackson _v._ Union Marine Insurance Co., L. R. 10 C. P. 125 107
Jefferson, The, 215 U. S. 130 181, 188
Jenkins, S. S. Co. _v._ Preston, 186 Fed. 108 53
J. C. Pfluger, 109 Fed. 93 184
J. E. Rumbell, 148 U. S. 1 142, 147
John Buddle, 5 Notes of Cas. 387 151
John G. Stevens, 170 U. S. 113 129, 137
John Jay, 17 How. (U. S.) 399 24
Joseph B. Thomas, 86 Fed. 658 58
Kate, 164 U. S. 458 133
Kate Aitken. _See_ Wilson _v._ Charlestown Pilots' Association,
57 Fed. 227 175
Kensington, 183 U. S. 263 85
Kentucky. _See_ The China, 7 Wall. (U. S.) 53 178
Keokuk, The, &c. _v._ Home Ins. Co., 9 Wall. (U. S.) 526 72
Knickerbocker Ice Co. _v._ Stewart, 253 U. S. 149 57
La Bourgogne, 210 U. S. 95 124
Larch, 2 Curt. 434 27
Larsen, _Ex parte_, 233 Fed. 708 60
Lawrence _v._ Minturn, 17 How. (U. S.) 100 46, 74
Leamington, 86 Fed. 675 182
Lehigh Valley R. R. Co. _v._ Cornell Steamboat Co.,
218 U. S. 264 155
Liverpool &c. Navigation Co. _v._ Brooklyn Eastern Dist.
Terminal, U. S. Supreme Court Advance Sheets, 85 112, 114, 170
Lizzie Burrill, 115 Fed. 1015 42
Lombard S. S. Co. _v._ Anderson, 134 Fed. 568 53
Lottawanna, 21 Wall. (U. S.) 558 137
Luckenbach _v._ McCahan Sugar Ref. Co., 248 U. S. 139 118
McConochie _v._ Kerr, D. C. 9 Fed. 50 184
McLean _v._ Fleming, L. R. 2 H. L. Sc. 128 (English cases) 42
Mac, 7 P. D. 126 3
Majestic, 166 U. S. 375 79
Majestic, 56 Fed. 244 85, 110
Malek Adhel, 2 How. (U. S.) 210 112, 195
Manitoba, 104 Fed. 145 85
Marcadier _v._ Ins. Co., 8 Cranch (U. S.) 39 199
Margharita, 140 Fed. 820 59
Marie Palmer, 191 Fed. 79 161, 165, 166
Marjorie, The, 151 Fed. 183 127, 128
Mary, The, 1 Sprague 19 189
Max Morris, The, 137 U. S. 1 58
Mencke _v._ Sugar, 187 U. S. 248 111
Minnetonka, 146 Fed. 509 79
Mitchell _v._ Chambers, 43 Mich. 150 38
Mohawk, The, 3 Wall. (U. S.) 566 12
Moore _v._ Sun Printing &c. Association, 183 U. S. 642 109
Morgan _v._ Parham, 16 Wall. (U. S.) 471 12
Morning Light, 2 Wall. (U. S.) 550 148
Mosher, 17 Fed. Cas. No. 9874 164
Murphy _v._ Dunham, 38 Fed. 503 188, 202, 206
Mystic, 30 Fed. 73 160
Nebraska, The, 75 Fed. 598 40, 53
Neilson _et al_ _v._ Rhine Shipping Co., 248 U. S. 205 65
New World _v._ King, 16 How. (U. S.) 469 176
Niagara, The, 21 How. (U. S.) 7 39, 40, 45, 53
Niagara, 77 Fed. 329 153
Nicaragua. _See_ Mosher, 17 Fed. Cas. No. 9874 164
Normannia, 62 Fed. 469 85
North Star, 106 U. S. 17 156
O'Brien _v._ Miller, 168 U. S. 287 124, 147
Ocean Spray, 4 Sawy. 105 62
Ole Olson, 20 Fed. 384 62
Onderdonk _v._ Smith, _et al_, 27 Fed. 874 210
Oregon, 158 U. S. 186 151
Orleans _v._ Phoebus, 11 Peters (U. S.) 175 28, 44
Osceola, 187 U. S. 190 68
Patapsco Ins. Co. _v._ Coulter, 3 Peters (U. S.) 222 199
Pendleton _v._ Benner Line, 246 U. S. 353 118, 124
Pfluger, J. C., 109 Fed. 93 184
Pickwick. _See_ Gould _v._ Jacobson, 58 Mich. 288 18
Ponce, 178 Fed. 76 53
Post _v._ Jones, 19 How. (U. S.) 150 47
Prendergast _v._ Compton, 8 C. & P. 454 80
Pulaski, 33 Fed. 383 129
Quickstep, 9 Wall. (U. S.) 655 163
Ragland _v._ Norfolk & Washington Steamboat Co.,
163 Fed. 376 42
Railway Co. _v._ Myers, 80 Fed. 361 82
Ralli _v._ Troop, 157 U. S. 386 174, 191
Rebecca-Ware, Fed. Cas. No. 11,629 124
Relief. _See_ Wilson _v._ Charlestown Pilots' Association,
57 Fed. 227 175
Republic. _See_ Sturgis _v._ Boyer, 24 How. (U. S.) 110 170
Reward, 1 W. Rob. 174 185
Richardson _v._ Harmon, 222 U. S. 96 118, 124, 215
River Mersey, 48 Fed. 686 207
Robertson _v._ Baldwin, 165 U. S. 275 60, 68
Rock Island Bridge, 6 Wall. (U. S.) 213 129
Ronalds, 109 Fed. 905 111
Rosenthal, 57 Fed. 254 110
Ross _v._ McIntyre, 140 U. S. 453 68
Royal Sceptre, 187 Fed. 224 75, 115
Rumbell, J. E., 148 U. S. 1 142, 147
Rupert, 213 Fed. 263 53
St. Clair _v._ U. S. 154 U. S. 134 199
St. Jago de Cuba, 9 Wheat. (U. S.) 409 132
Sandberg _v._ McDonald, 248 U. S. 185 65
Sandringham, 10 Fed. 556 182, 187
Scotland, 118 U. S. 507 123
Scotland, 105 U. S. 24 124
Scotia, 14 Wall. (U. S.) 170 158
Seabrook _v._ Raft, 40 Fed. 596 3, 148
Shawnee, 45 Fed. 769 58
Sheehan _v._ Dalrymple, 19 Mich. 239 30
Sherlock _v._ Alling, 93 U. S. 99 33
Shooting Star. _See_ Wm. H. Webb, 14 Wall. (U. S.) 406 168
Skinner, 248 Fed. 818 188
Smith _v._ Burnett, 173 U. S. 430 211
South Coast S. S. Co. _v._ Rudnbach, 251 U. S. 519 133
Southern Pacific Co. _v._ Jensen, 244 U. S. 205 56
Southern Pacific Co. _v._ Ky. 222 U. S. 632 15
Southwark, 191 U. S. 1 122
Spedden, 184 Fed. 283 53
Spedden _v._ Koenig, 24 C. C. A. 189; 78 Fed. 504 37
Sprott, 70 Fed. 327 110
Stach Clark, 54 Fed. 533 201
Steamship Co. _v._ Schmidt, 241 U. S. 245 68
Strathearn, 239 Fed. 583 68
Strathearn S. S. Co. _v._ Dillon, 252 U. S. 348 65
Stratton _v._ Jarvis, 8 Peters (U. S.) 4 186
Sturgis _v._ Boyer, 24 How. (U. S.) 110 170, 179
Sumner _v._ Caswell, 20 Fed. 249 85
Sun Printing &c. Association _v._ Moore, 183 U. S. 642 109
Syracuse, 18 Fed. 828 161
Syracuse, The, 12 Wall. (U. S.) 167 168
Tabor _v._ U. S., 1 Story 1 14
T. A. Goddard, The, 12 Fed. 174 104
Tamplin Steamship Co. _v._ Anglo-Mexican Products Co., Ltd.,
2 A. C. 397 108
Teutonia _v._ Erlanger, 248 U. S. 521 182
Tornado, 108 U. S. 342 78
Trans. Co. _v._ Wright, 13 Wall. (U. S.) 104 124
Transportation Co. _v._ La Compagnie Générale Transatlantique,
182 U. S. 406 178
Transportation Co. _v._ Pearsall, 90 Fed. 435 185
Trigg, 37 Fed. 708 53
Troop, 118 Fed. 769 59
Tucker _v._ Alexandroff, 183 U. S. 424, 438 5
United States _v._ Ansonia Co., 218 U. S. 452 11
United States _v._ Forester, Newb. Adm. 81 24
United States _v._ Willings, 4 Cranch. (U. S.) 48 23
Valencia, 165 U. S. 264 131
Vauban. _See_ Liverpool &c. Navigation Co. _v._ Brooklyn Eastern
Dist. Terminal, U. S. Supreme Court Advance Sheets, 85 170
Vincent _v._ Company, 109 Minn. 456 215
Western States, 151 Fed. 929 80
White's Bank _v._ Smith, 7 Wall. (U. S.) 646 24
Wildcroft, 201 U. S. 378 85, 122
Wm. Bagaley, The, 5 Wall. (U. S.) 377 26, 28, 29
William Brown. _See_ Holmes, 1 Wall. Jr. 1,
26 Fed. Cas. No. 15,383 194
Wm. H. Webb, 14 Wall. (U. S.) 406 168, 179
Willings _v._ Blight, 2 Pet. Adm. 288,
30 Fed. Cas. No. 17,765 29
Wilson _v._ Charlestown Pilots' Association, 57 Fed. 227 175
Wisconsin. _See_ Sturgis _v._ Boyer,
24 How. (U. S.) 110 170, 179
Woodall _v._ Dempsey, 100 Fed. 613 37
Yankee Blade, 19 How. (U. S.) 82 127
Yarkand, 120 Fed. 887 53
INDEX
(The references are to pages.)
Abandonment, of cargo on disaster, 75
to creditors, 114
to insurers, 123
to underwriters, 113
of seamen, 197, 252
Accounting, compellable by part owners, 30
Acts of Congress:
June 26, 1884 (23 St. at L.), 70, 116
August 19, 1890 (26 St. at L. 320), 63
September 4, 1890 (26 St. at L. 425), 158
February 13, 1893 (27 St. at L. 445), 70, 72
February 18, 1895 (28 St. at L. 667), 252
December 21, 1898 (30 St. at L. 755), 196, 249
March 3, 1899 (30 St. at L. 1151), 206, 209
April 22, 1908 (35 St. at L. 65), 57
March 4, 1909 (35 St. at L. 1088, 1142), 196
April 5, 1910 (36 St. at L. 291), 57
June 24, 1910 (36 St. at L. 629), 141, 200
August 1, 1912 (37 St. at L. 242), 187
August 24, 1912 (37 St. at L. 560), 229
August 18, 1914 (38 St. at L. 698), 229, 246
March 4, 1915 (38 St. at L. 1164), 56, 245, 247-252
September 7, 1916 (39 St. at L. 729), 231, 260, 261
June 7, 1918 (40 St. at L. 602), 258
February 9, 1920, 16, 219
March 30, 1920, 83, 84, 157, 250
June 5, 1920, 12, 17, 18, 19, 27, 64, 79, 128, 130, 131, 135, 141,
200, 214, 232, 238-240, 250, 261, 263-289
_See also_ Revised Statutes:
Compiled Statutes, 1916;
Bills of Lading Act;
Harter Act;
Loss of Life Act;
Panama Canal Act;
Merchant Marine Act;
Ship Mortgage Act;
Stand-by Act.
Acts of God, 89
Adjuster, in general average, 191
Admiralty. For specific subjects, see particular titles
Admiralty Courts. _See_ Courts
Admiralty Law, sources, general, 1
in United States, 1
Admiralty remedies. _See_ Remedies
Admiralty Rules, general, 14
Advances of wages (_see also_ Wages), 247, 248
Advances on bottomry, 141
Adventure. _See_ Frustration of adventure
Affreightment, contract of, defined, 77, 78
reciprocal obligations of ship and cargo, 34, 35
_See also_ Contracts of affreightment
Agency, of master, right to delegate, 49
for temporary owner or charterer, 33
Agent, managing, responsibility of owner for, 31
Alaska Railroad, under Merchant Marine Act, 277
Alaska, trade with, coastwise, 14
under Merchant Marine Act, 277
Aliens, defined, in Merchant Marine Act, 288
sales of Shipping Board vessels to, under Merchant Marine
Act, 266, 267
American Bureau of Shipping, under Merchant Marine Act, 276
Anchorage, 215, 216
Anchors, included in sale, 23
Antitrust laws, marine insurance associations exempt from,
under Merchant Marine Act, 278
Antwerp, York-Antwerp Rules, 7
Appurtenances, what included in sale, 23
Arbitration clause, not enforceable, 107
Arrest of passengers, 42
Arrival and discharge, 76
Arrived ship, 106
Arson, maritime, 196
Articles, shipping. _See_ Shipping articles
Assaults, 196
on seamen, 61
Association, defined, in Merchant Marine Act, 278
Attorneys, employment by Shipping Board, under Merchant
Marine Act, 265
Austrian vessels, sale of, under Merchant Marine Act, 266
Average. _See_ General average
Bankruptcy, of shipbuilder during construction, 11
Bare boat charter, 101
Barges, inspection of, 255
whether ships, 3
Barratry, 199, 200, 252
Bathhouse, floating, a ship, 3
Berths, separate for seamen, 249
Bills of lading, Chapter VII, 86-111
holder's claim to goods, 76
liability of owner for cargo not received, 31
limitations on, 76
limitation of master's authority to bind owner, 41
limitation on master's right to issue, 45
not contracts of affreightment, when, 34
Bills of sale, not required for documentation, 236
recording, 237, 238
recording, under Merchant Marine Act, 278, 279
requirements, 236
Blockade, violation of, 195
Boats, included in sale, 23
Boilers, included in sale, 23
Bonds. _See_ Mortgages and bonds for release of ship, 220
for safe return, when compellable, 28, 29
Bottomry bond, defined, 138
nature and incidents of, 138-140
Bowsprit, included in sale, 23
Breach of charter, 106, 107
Breakage, exception of, 99
Breakdown clause, 102, 103
Builder's lien, 136
Bunkers, liability for, during temporary ownership, 33
Cables, included in sale, 23
Captain. _See_ Master
Capture. _See_ Prize of war
Cargo. _See_ Affreightment, contracts of; Lien, etc.
damage to, in collision, 152, 156
deck, in general average, 191
discharge of (_see_ Arrival and discharge)
injury to, personal liability of master, 41
loading and stowage of, 72-75
master's relation to, 44-47
not involved in forfeiture, when, 195
on wreck, owner's rights, 206
out and back, 91
reciprocal obligations of ship and cargo, 34, 35
shipper must disclose character, 72, 73
unlawful, annuls charter, 107
Cargo vessels, provision of Merchant Marine Act, 276
Carpenter, master. _See_ Master carpenter
ship's, lien for wages, 62
Carpenter's certificate, 232
Carriage by sea, Chapter VI, 69-84
Carriers, common and private, defined, 69
liability of, 69, 70
Certificate. _See_ Carpenter's certificate, Surveyor's certificate,
Inspection certificate
Cesser clause, 103
Changes, in structure, to be reported, 16
Charter parties, Chapter VII, 86-111
effect on lien, 133
master must not alter, 45
notice to creditor, when avoids lien, 33
Charter rates, Emergency Act, repeal of, in Merchant Marine
Act, 263, 264
Charterer, agent of, may create lien, under Merchant Marine Act, 285
liability, 113
liability as temporary owner, 33
may create lien on vessel, when, under Merchant Marine Act, 285
Chartering Executive Committee, 86
Chartering of vessels, authority of Shipping Board,
under Merchant Marine Act, 267
Chronometer, included in sale, 23
Circuit Court of Appeals. _See_ Courts
Citizens, who are, 25
defined in Merchant Marine Act, 288
Citizenship, of owner (_see also_ Corporations), 12, 13, 25, 27
of master, 25, 39
of pilots, 13
of watch officers, 13
Claim, notice of, 100
Classification of Shipping Board vessels under Merchant Marine Act, 276
Clearance. _See_ Entry and clearance
Coastwise trade, Alaska, under Merchant Marine Act, 277
corporate owner, stock control, 28
forfeiture for violation, 195
insular possessions, executive control, under Merchant Marine
Act, 274
investigation of ports, etc., by Shipping Board, under Merchant
Marine Act, 268
Philippine Islands, not, under Merchant Marine Act, 274
provisions of Merchant Marine Act, 277
restrictions, 231, 232
vessels to engage in, 13, 277
via foreign port, under Merchant Marine Act, 277
voyages, wages on, 247
what is, 13, 14
Code, Federal Criminal, 196
Collector of Customs, duties with respect to recordation,
under Merchant Marine Act, 279, 280
Collision, Chapter XI, 148-158
assistance in case of, 252
investigation of, 244
personal liability of master, 41
responsibility of pilot, 175
when a peril of the sea, 89
Commanding officer. _See_ Master
Commerce, Department of, representation on American Bureau of Shipping,
under Merchant Marine Act, 276
routes to be established by Shipping Board, under Merchant Marine
Act, 267
Secretary of, authority to regulate recordation of mortgages, etc.,
under Merchant Marine Act, 286
may remit certain fines, under Merchant Marine Act, 276
Commissioner of Navigation (_see also_ Navigation), 259
Commissioners. _See_ Shipping commissioners
Common carriers. _See_ Carriers Compass, included in sale, 23
Compensation, just, under Merchant Marine Act, Law.
_See_ Workmen's Compensation Law, 264
Competition, Shipping Board to make rules, under Merchant Marine
Act, 272
Compiled Statutes 1916:
4554, 63
7707, 25
7778, 7779, 143
7981, 173
7990-7994, 187
8020-8027, 115
8029-8035, 93
8036, 52
8204-8208, 173
8287-8297, 63
8300-8314, 63
8315-8337-A, 64
8343-8376, 66
9920, 206
10419-10444, 193
10445-10462, 193
10462-10469, 193
10470, 203
10470-10483, 193
Congress, Acts of. _See_ Acts of Congress, Revised Statutes
Consignee, right to goods, 76
Construction loan, fund under Merchant Marine Act, 269
by Shipping Board, under Merchant Marine Act, 260
Construction, title by, 10
Contract, maritime, defined, 4
status of ship mortgages, 141, 142
shipbuilding, 10
not maritime, 11, 12
liens arising out of, 126
of master, liability of owner, 31
liability of temporary owner, 33
seaman's, 55
under Emergency Shipping legislation, validated by Merchant Marine
Act, 263, 264
Contracts of affreightment, Chapter VII, 86-111
_See also_ Affreightment, contracts of
Contribution, in collision cases, 155
Contributory negligence, none in admiralty, 156
Control of ownership, effect on registry, 12, 25
_See also_ Corporations
Corporal punishment, forbidden, 56, 197, 252
Corporate owners, privity or knowledge of, 118
Corporation, as owner, citizenship and stock control of, 13, 25, 27,
28, 123
oath for documentation, 235
under Merchant Marine Act, 288, 289
Costs, in admiralty, 221
Courts, United States:
Circuit Court of Appeals, jurisdiction, 2
district, jurisdiction, 2
extent of judicial power, 2
state courts, jurisdiction, 2
Supreme Court, U. S., jurisdiction, 2
Court of Claims, suits for just compensation under Merchant Marine
Act 263, 264
Crew, majority owners may employ and discharge, 28
_See also_ Seamen
Crimes at sea, Chapter XIV, 193-201
offenses of seamen, 251, 252
Criminal Code, Federal, 196
Cruelty to seamen, 60
Customs duties. _See_ Treaties
Damage, caused by pilot, 175
division of, 155, 156
in collision cases, 151-157
in towage cases, 168-170
to goods, liability for, under charter, 104
Day, work, 248
Dead freight. _See_ Freight
Deadweight tonnage. _See_ Register tonnage
Death of seaman, 250
seaman's right of action under Merchant Marine Act, 287
Deck cargo, in general average, 191
Deck load, 73, 75
Deck officers, 245
Delay in voyage, 78
Delivery of ship, title by, 10
Demise of ship, when charter is, 33, 91, 101-113
where, liability for damaged goods, 104
Demurrage (_see also_ Freight and demurrage), 105, 106
defined, 77
lien for, 127
when recoverable, 78
Depreciation, on sale of Shipping Board vessels, under Merchant Marine
Act, 266
Derelicts. _See_ Wrecks and derelicts
Desertion, 55, 60, 251
Despatch money, 106
Destruction of vessel before completion, 11
Deviation, master's duty, 45, 51
warranty against, 88, 89
Diligence of lienor, rules of, 127, 128
Directors of corporations, powers of, 28
Disaster, master's duties on, 51
seaman's duties on, 58
Discharge (_See_ Arrival and discharge)
of seamen, 60
Disobedience, 251
Displacement. _See_ Register tonnage
Dissolution of charters, 107-110
District courts. _See_ Courts
Division of damages. _See_ Damages
Docks, German port facilities turned over to Shipping Board
by Merchant Marine Act, 271
insurance of, under Merchant Marine Act, 269
investigation of, by Shipping Board, under Merchant Marine Act, 268
Documentation of vessels, procedure for, 232-235
_See also_ Registry
Documents, surrender and reissue of, 236, 239
Domicile of owner, for registry, 14
_See also_ Citizenship, Nationality, Corporation
Dredge, subject to admiralty jurisdiction, 2
Drydock, floating, not a ship, 3, 180, 181
insurance of, under Merchant Marine Act, 269
maritime lien for use of under Merchant Marine Act, 285
Duties, customs. _See_ Treaties
Effects, seamen's, 66
Embezzlement, 197
Emergency Fleet Corporation, 261
provisions of Merchant Marine Act with reference to, 288
Emergency Legislation Rate Act repealed, 264
Shipping Act repealed, 263, 264
validation of agreements, 263
Enemy port facilities, turned over to Shipping Board under
Merchant Marine Act, 270, 271
Engineer, when an officer, 246
Engines, included in sale, 23
Enrollment, defined, 12
form of, 231
when to be made, 12
Entry and clearance, 241
Equipment, managing owner to direct, 36
Exceptions in bills of lading, 99
Excess profits tax, proceeds of sale exempt, under Merchant
Marine Act, 275
vessels exempt, under Merchant Marine Act, 275
Exchange, title by, 10
Executors, sales by, 18, 19
Explosives, 73
on passenger ships, offense, 197
False lights, 197
Fares, through, on American ships, under Merchant Marine Act, 277
Federal Compensation Act, 57
Federal Criminal Code, 196
Fees, navigation, 258
Fellow servant, master not, 250
Felony, defined, 193
Fighting ships, forbidden, 79
provision of Merchant Marine Act, 273
Finders, rights of, 207, 208
Fines, Secretary of Commerce may remit certain, under Merchant
Marine Act, 276
Fire, 89, 90, 115, 116
Fire insurance on vessels purchased from Shipping Board, under
Merchant Marine Act, 269
Firemen, hours of labor, 248
Flag, 229
transfer of, 17, 23
Floats, whether ships, 3
Flogging, abolished, 42, 59
Flotsam, 202
Fog, collision in, precautions against, 149, 150
Foreclosure of mortgages, 145-147
under Merchant Marine Act, 283
Forfeiture, 195
on sale to alien, 17
under Merchant Marine Act, priority of mortgage lien, 284
Forfeitures and punishments of seamen, 55, 56
Foreign built vessels (_see also_ Vessels, Registry, Coasting trade),
may engage in coasting trade, when, under Merchant Marine Act, 274
Foreign laws, Shipping Board to make rules to meet, under Merchant
Marine Act, 272
Foreign liens, 136
Foreign market prices to be considered in sale of Shipping Board
vessels, under Merchant Marine Act, 266
Foreign ships, American-built recording of, 16
Foreign trade, regulations governing shipping in, under Merchant
Marine Act, 272
Shipping Board to establish new routes, under Merchant Marine Act, 267
Foreign vessels, right to coast repealed by Merchant Marine Act, 277
Foreigners, sale of vessels to, provisions of Merchant Marine
Act, 266, 267
Frauds, of temporary owner, when owner liable, 34
Freight, defined, 43, 77, 86
dead, 91
lien for, 78, 127
loss of in collision, 162
master's lien upon, 43
when earned, 91
Freight and demurrage, 77
Freight rates, export, on American vessels, under Merchant Marine
Act, 277
import, under Merchant Marine Act, 277
investigation by Shipping Board, under Merchant Marine Act, 268
through reduced, restricted by Merchant Marine Act, 277
unfair, 79
War Emergency Act repealed, 264
Frustration of adventure, 107, 108
Fuel, lien for, 125
General average, 189-192
origins, 7
preferred maritime lien for, under Merchant Marine Act, 280, 283
German vessels, turned over to Shipping Board, 266
sale of authorized by Merchant Marine Act, 266, 267
Gift, title by, 10
Great Lakes Rules, 150
Guam, registry of vessels trading with, 12
Guardians, may be owners, 25
Harter Act, 70, 72, 119-122
public vessels entitled to benefit of, under Merchant Marine
Act, 266, 267
Hawaii, foreign vessels may carry passengers from, to United States
under permit, under Merchant Marine act, 274, 275
trade with coastwise, 14
Hawsers, length of, 254
Heat, exception of, 99
Home port, 233, 234
defined, 12
fixed by registry, 14, 15
limitation on manager's authority when vessel in, 37
maritime lien for supplies furnished in, under Merchant
Marine Act, 285
persons authorized by Merchant Marine Act to create liens in, 285
Hospital accommodations for seamen, 250
Hours of labor at sea, 248
Houses, sale of, by Emergency Fleet Corporation, authorized by
Merchant Marine Act, 270
Housing law repealed by Merchant Marine Act, 270
Husband, ship's, defined, 36
Import rates, provisions of Merchant Marine Act, 277
Income tax, vessels in foreign trade exempt from under Merchant
Marine Act, 275
Individuality of ship. _See_ Personality, Vessel
Injuries. _See_ personal injuries Passengers, Seamen
Inspection, certificate of outstanding, 235
of vessels, 244, 255, 259
Insurance, charter provision for, 102
effect of limitation of liability on, 123
in collision cases, 157
Insurance, fire, on vessels purchased from Shipping Board under
Merchant Marine Act, 269
Insurance, marine, associations exempt from antitrust laws by
Merchant Marine Act, 278
purchaser of Shipping Board vessel to provide, 268
Shipping Board vessels, fund for, under Merchant Marine Act, 269
Insurance company, marine, defined in Merchant Marine Act, 278
Insurance of cargo, 75
Interest, on mortgages, 239
on preferred mortgages under Merchant Marine Act, 281
on purchase price of vessels under Merchant Marine Act, 266
Interlocutory sales, 221
International Rules, 150
Interstate Commerce Commission, 261
power over, through rate rule under Merchant Marine Act, 277
Intervenors, 221
Investments of Shipping Board, under Merchant Marine Act, 270
Jetsam, 202
Jettison, 190, 191
master's duty, 46
Joint rates, provisions of Merchant Marine Act, 277
Judicial power, extent of. _See_ Courts
Jurisdiction, Admiralty. (_See also_ Courts), 218, 219
concurrent, over crimes, 197, 198
criminal, 193, 194
ships subject to, 2
ships under construction not subject to, 2, 11, 12
shipbuilding contracts not territoriality of vessels for
subject of, 11, 12
purposes of, 15
waters subject to, 3, 4
wrecks subject to, 204
of foreclosure, under Merchant Marine Act, 283, 284
of injuries to seamen, 58
of offenses under Merchant Marine Act, 282
Jury trial, seaman's right to, under Merchant Marine Act, 287
Laches in enforcing lien, effect of, 134
LaFollette Seamen's Act. _See_ Seamen's Act
Language of seamen, 246
Larceny, 196
Lay days, 105, 106
Leakage, exceptions of, 99
Liabilities and limitations, Chapter VIII, 112-124
Liability, limits of, 5
of carrier, duration of, 99
limitation of, by temporary owner, 33
of ship, when pilot in charge, 177, 178
Libel, 219, 220
License, form of, 231
master's, 39, 40
officers', 244
vessels, 12
Lien, maritime, Chapter IX, 125-137
for breach of charter, 107
for collision damage, 156, 157
for freight and charter hire, 103
for pilotage, 175
for salvage, 181, 182
for towage, 160
for wages, 55, 61, 63
not assignable, 248
of landowner, on wreck, 205
of managing owner, 37
of master, 44
of part owners, 30
of wharfinger, 214
divested on master's sale, 19
failure to disclose, offense, 200
master's power to create, 50
mortgages may create, when, 113
of bills of lading and contracts of affreightment, 34-36
right of mortgagee to discharge, 144, 145
Lien, mechanics, 136
Lien, under Ship Mortgage Act, discussed, 239, 240
provisions of Ship Mortgage Act, 278-286
_See also_ Ship Mortgage Act
Life, loss of. _See_ Loss of life
Lifeboat men, 246
Life-saving equipment on cargo vessels, provisions of Merchant
Marine Act, 276
Ligan, 202
Lights, false, 197
Limitations. _See_ Liabilities and limitations
Limitation of liability
by temporary owner, 33
in collision cases, 157
proceedings, 222
in loss of life, 84
Limitation on prosecutions, 198
Loading and stowage, 72-75
Loans. _See_ Construction loan fund
Log book, contents, 52
disciplinary facts to be entered, 42
requirements, 52
Logs. _See_ Raft
Longshoremen, lien for wages (_see also_ Stevedore), 62
Loss of life, 157
Act of March 30, 1920, 83, 84, 157, 250
Loss of vessel before completion, effect on title, 11
Loss or damage to goods, liability for, under charter, 104
Machinery, included in sale, 23
Mails, to be carried in American vessels, under Merchant
Marine Act, 275, 276
contract not to be sublet to foreigners, provision of
Merchant Marine Act, 275
Postmaster General to make contracts, under Merchant Marine Act, 275
Maiming, 196
Majority interest, when controlling, 28
Managing agent, 36
Managing owner, authority, duties and rights, 36, 37
Manslaughter, 196
Marine insurance. _See_ Insurance
Marine Insurance Associations, exempt from antitrust laws by
Merchant Marine Act, 278
Marine Insurance Company, defined in Merchant Marine Act, 278
Marine railways, lien for use, provision of Merchant Marine Act, 285
Maritime Law, sources, 1
Maritime liens. _See_ Liens
Married women, may be owners, 25
Master, Chapter IV, 39-53
agency for all parties in case of wreck, agency for owner
under charter, 91
agency for temporary owner or charterer, 33
agent for underwriter, when, 113
authority to sign bills of lading, 36
bills of lading signed by, liability on, 91
cargo, duty to deliver, 76
citizenship of, 25
contracts of affreightment, effect of, 34-36
disciplinary powers, 40
duties in loading and stowage, 72
duty as to shipping articles, 243
duty to deliver cargo to consignees, 76
license of, 244
majority owners may employ and discharge, 28
name to be reported, 16
oath of, for documentation, 235
owner's authority over, 30
penalty for failure to exhibit documents under Merchant
Marine Act, 282
pilot, relation to, 174
right to sue in collision cases, 157
sales by, 19-22
salvor, 185
seamen, power to punish, 61
shipping articles, duty as to, 243
wreck, agency for all persons in case of, 75
Master carpenter, certificate of, for registry, 14
Masts, included in sale, 23
Mate, license of, 244
not to punish seamen, 61
Mechanic's liens, 136
Medicines, 67
Merchant Marine Act (June 5, 1920)[35], discussed, 142-147
text of, 263, 289
Merchant vessels, annual list of, 258
Minority interest may compel majority to give bond, 28, 29
right to use ship, 29
Misdemeanors, 193
Mississippi Valley Rules, 159
Moorage. _See_ Wharfage and moorage
Mortgage of cargo, master's rights, 47
Mortgagee, liability of, 113
Mortgages and bonds, Chapter X, 138-147
Mortgages, new to be given after admiralty sale, 18
of ship at sea, 22, 23
Mortgages, preferred, provisions of Ship Mortgage Act
(§ 30 Merchant Marine Act), 278-286
discussed, 238
Mortgages, recording of, provisions of Ship Mortgage Act
(§ 30 Merchant Marine Act), 279-282, 286
Motor boats, numbering of, 258
Murder, 196
Mutiny, 60, 197, 200, 201, 251
Name, change of, 16, 240
forfeiture for change of, 195
marking of, 233, 234
Nationality, of owner (_see also_ Corporations), 13, 25, 27
of master, 25
of officers and crew, 246, 247
of ship. _See_ Registry, and Flag
who are nationals, 25
Naval service, vessels in exempt from Merchant Marine Act, 266
Navigation, Commissioner of, 259
to authorize change of name, 16
Navigation fees, 258
Navigation laws, how administered, 259
Negligence in collision, 148, 149
liability for, during temporary ownership, 33
of master, liability of owner for, 31, 32
liability of temporary owner for, 33
liability of pilot for, 175
liability of tug for, 165, 166
proof of, in collision cases, 158
in towage cases, 155, 156
Negotiability of bills of lading, 98, 99
Neutrality, violation of, offense, 197
Note. _See_ Promissory note
Notice, lien independent of, 127
of admiralty sale by marshal, 18
of claim. _See_ Claim
Number. _See_ Official number
Offenses. _See_ Crimes at sea of seamen, 59
Officers, deck, 245
nationality, 247
qualifications, 244-247
Official number, 233, 234
Official tonnage, 233
Oilers, hours of labor, 248
Oléron, Rules, 7
laws, 173
Overloading, 73
Owner, domicile of, for registry, 14
duty of, to provide competent master, 39
liability of, 112, 113
oath of, for documentation, 235
privity or knowledge of, 116-118
remedies of, 220
single ship companies, 123
as salvor, 185
of wreck, liability of, 205
rights, of, 206
Owners and managers, Chapter III, 25-38
Ownership, control of, effect on registry. _See_ Corporations
Ownership, record title not conclusive of, 36
temporary, rights and liabilities, 33
Panama Canal Act (August 24, 1912), 229
Panama Canal Zone, trade with not coastwise, 14
Panama Railroad, ships subject to suit, 219
Parole, sale by, 10, 20, 22, 23
Part owners, 25, 26
not partners generally, 25
suits between, 30
obligations of, 30
Particular average, 189
Partition, suit for, 30
Partners, part owners not, 25
may own vessel as partnership property, 25-27
Passengers, assault on, liability of owner, 31
carriage of, 79, 80
damage in collision, 154, 155
from Hawaii in foreign ships, under Merchant Marine Act, 275
limitation of, on cargo vessels under Merchant Marine Act, 276
loss of life, 83, 84
master's authority over, 41
personal injuries to, 81-83
not salvor, 183
seduction of, 252
to be notified of dangers under Merchant Marine Act, 276
Peril of the sea, exception of, 89
liability for, under charter, 104
Penalties and forfeitures, 195
Penalties under Ship Mortgage Act, 282
Personal injuries to passengers. _See_ Passengers
Personal injuries, of seamen, 56-58, 287
Personality of ship, 5, 112, 114, 195
Philippine Islands, may make registry rules under Merchant
Marine Act, 274
not coastwise under Merchant Marine Act, 274
whether coastwise, 14
Pilot, citizenship of, 13
licenses of, 244
master to remain in command, 43
when salvor, 184
Pilotage. _See_ Towage and pilotage, Chapter XII, 159-179
appendix on, 253, 254
extra, ordered by master, owner's liability, 31
liability of master for, 41
Piracy, 195-199
Place of trial, of offenses at sea, 194
Plundering, 197
Port captain, 36
Port facilities, effect of freight rates on, investigation by
Shipping Board, under Merchant Marine Act, 268
Port of registration. _See_ Home port
Porto Rico, trade with coastwise, 14
Possession, evidence of ownership, 25
lien independent of, 127
Preferred lien. _See_ Liens
foreclosure of, under Ship Mortgage Act, 283
Preferred mortgages. _See_ Mortgages
foreclosure of, 146, 147
incidents of, 141-143
transfer of, 145
Preferred mortgage vessels, 128-131
Prices, market, foreign, to be considered in sale of Shipping
Board vessels, under Merchant Marine Act, 266
Princes, restraint of. _See_ Restraint of princes
Priorities in liens. (_see also_ Liens), 129-131
"Privity or knowledge," 116, 117
Prizes of war, when entitled to registry, 12
Process, 220-222
Proctor, 220
Promissory note, master's not binding on owner, 41
Protest, cost of, 152
described, 52
form of, 290
shipper entitled to copy, 76
Provisions, lien for, 125
scale of, 249
when included in sale, 23
Punishment, corporal, 197
of seamen (_see also_ Seamen), 55, 56
Purchase, title by, 10
Radio telegraph, failure to carry (_see also_ Wireless), 200
Raft, whether a vessel, 2
Railroads, freight rates, investigation by Shipping Board
under Merchant Marine Act, 268
reduced, restriction upon under Merchant Marine Act, 277
Rape, 196
Rates. _See_ Freight
export, on American vessels under Merchant Marine Act, 277
freight and charter, War Emergency Act repealed, 264
freight, unfair, 79
import, provisions of Merchant Marine Act, 277
Readiness, 106
Receiver, in preferred lien foreclosures under Merchant Marine Act, 283
Record title, not conclusive of ownership, 36
Recording, American-built foreign ships, 16
liens. _See_ Liens
mortgages (_see also_ Mortgages), 144
Redelivery of vessel under charter, 102
Redocumentation, 241
Register, form of, 231
Register tonnage, 256
Registration and regulation in general, 10
Registry, general, 228, 229
and flag, 229
change of, to foreign, approval of Shipping Board, 17, 27
coastwise trade, vessels entitled to engage in, 13
control, American, of corporate owners, 13
copy to be included in bill of sale, 17
corporate ownership, American control, 13
defined, 12
domicile of owner, 14
ownership by citizens, 13
procedure (_see also_ Documentation), 14
surrender, on sale of ship at sea, 23
vessels entitled to, 12, 229-231
Regulations, navigation, 150
Remedies, Admiralty, Chapter XVII, 218-222
Repairs, liability for, during temporary ownership, 33
lien for, 125, 131
in home port, under Merchant Marine Act, 285
majority owners may pledge vessel for, 28
managing owner to make, 36
to wrecked vessel, to entitle her to registry, 12
Replevin, of wreck, 206
Representations prior to sale, 23, 24
Requisition, of vessels under Merchant Marine Act, 270
War Emergency Act repealed, 264
Residence of owner, for registry (_see also_ Citizenship,
Corporations, Nationality), 14
Respondentia, defined, 138
incidents of, 140, 141
Restraint of princes, 90, 108, 109
Revised Statutes, Sections:
4139, 39, 40
4141, 12
4142, 4147-4153, 4155, 14
4170, 10, 17
4180-4184, 16
4282, 70, 89, 90
4283, 70
4284, 115
4285, 70, 115
4286, 70, 113, 115
4287, 4288, 4289, 70
4319, 14
4439, 40
4445, 40
4450, 40
4501-4612 (Title LIII), 56
4511, 55
4528, 55
4564, 41
4569, 41
4581, 56
4596, 56
4612, 54
5363, 41
Revolt, 197
River steamers, registry of, 13
Road. _See_ Rules of road
Robbery, 196, 197
Rooles of Oléron. _See_ Oléron
Routes, trade, Shipping Board may establish under Merchant
Marine Act, 267
Rules, navigation, 150
Rules of Oléron. _See_ Oléron Rules of
Rules of the road, 253
Safe port, 101
Sailor. _See_ Seamen
Sails, included in sale, 23
Sale, bill of. _See_ Bills of sale
Sale, in admiralty proceedings, 17, 18
effect on liens, 134, 135
notice, by marshal, 18
no warranty, 18
interlocutory, 221
Sale, in partition suit, 30
Sale, judicial, discharge of mortgage upon under Ship Mortgage
Act, 279, 280
Sale of cargo, master's rights, 47
Sale of shipbuilding plants of Shipping Board, under Merchant
Marine Act, 270
Sale of vessel, bill of, what to include, 17, 23
by master (_see also_ Master), 19-22, 50
by mortgagee, 19
by parole, 10, 20, 22, 23
by trustees and executors, 18, 19
to alien, 17
to alien, Shipping Board vessels under Merchant Marine Act, 226, 267
to alien, Shipping Board to approve under Merchant Marine Act, 284
to American citizens, under Merchant Marine Act, 266
of ship at sea, 22, 23
proceeds exempt from taxation, when under Merchant Marine Act, 275
representations prior to, 23, 24
Salvage and general average, Chapter XIII, 180-192
Salvage, seamen's lien not assignable, 248
Salvor, Lien, 181, 182
successive, 186
who may be, 183, 184
Seamen, Chapter V, 54-68
abandonment of, 252
age requirements, 246
berths, 249
clothing for, 250
corporal punishment of, prohibited, 252
death of, 250
death of, right of action under Merchant Marine Act, 287
foreign, when not engaged to work in United States, 15
hospital accommodations, 250
injuries to, 250
jury trial, right to, under Merchant Marine Act, 287
language of, 246
lien for salvage, not assignable, 248
lien for wages under Merchant Marine Act, 280
loss of effects in collision, 154-155
majority owners may employ and dismiss, 28
nationality of, 247
offenses of, 251
personal injuries to, under Merchant Marine Act, 287
provisions, scale of, 249
punishment of, authority of master, 42
qualifications, 246
salvors, whether, 183, 185
wages, demandable only once in same port under Merchant
Marine Act, 286
liability of master, 41
liability of owner, 31
lien under Merchant Marine Act, 280
washing places, 249
Seamen's Act (March 4, 1915), 56, 245, 247, 249-251
Seaworthiness, generally defined, 70-72
liability for, etc., 70-72
owners' obligation for, 30, 31
defined, 31
test of, 31
penalty for want of, 67
proceeding to determine, on complaint of seamen, 66, 67
warranty of, 87, 88
Seduction, 196
of passenger, 252
Self-defense, by seamen, 61
Ship (_see also_ Vessel), personality of, 112, 114
what is, 180, 181
Ship Mortgage Act (June 5, 1920)[36], text of, 276-286
_See also_ Mortgages, Liens, etc.
Shipbuilders Lien, 11
Shipbuilding contracts, 10
Shipbuilding plants of Shipping Board, insurance of, under Merchant
Marine Act, 269
Shipping, American Bureau of under Merchant Marine Act, 276
Shipping Act (September 7, 1916), 231, 260, 261
Shipping Act, Emergency, repealed by Merchant Marine Act, 263
Shipping Articles, 55, 63, 64, 242-244
Shipping Board, 260, 261
appointment and duties under Merchant Marine Act, 264, 265
approval, for change of registry, 27
assignment of vessels under Merchant Marine Act, 267
charters to be filed with, 86
may delegate to Emergency Fleet Corporation, 288
mortgages, authority over, 145
sales to aliens, Board to approve, 17
ships immune from arrest, 219
to investigate fighting ships, 79
vessels sold to citizens, entitled to registry, 13
Shipping Commissioners, 63, 260
Ship's husband, defined, 36
Shore captain, 36
Single ship companies, 16, 123
Sleeping quarters, 249
Slop-chest, 7
Smuggling, 197
Stand-by Act (September 4, 1890), 158
State liens, 135
Statutes. _See_ Acts of Congress, Revised Statutes, Compiled Statutes
Steam vessels, inspection of, 225
Steamboats, river and bay, when entitled to registry, 13
Stevedore, duties, 72
in whose employ, under charter, 105
lien for wages, 62
lien under Merchant Marine Act, 280, 283
master's control over, 45
Stolen goods, receiving, 196
Stowage. _See_ Loading and stowage
Stranding, no general average, 190
not collision, 148
Subcharters, 101
Supervising Inspector General, 259
Supervising inspectors, rules, 150
Supplies, liability for, during temporary ownership, 33
lien for, 125, 131
lien for, provisions of Merchant Marine Act, 285
lien for, in home port, under Merchant Marine Act, 285
majority owners may pledge vessel for, 28
penalty for neglect to provide, 67
what to be provided, 67
when included in sale, 23
Supreme Court. _See_ Courts
Survey, cost of, 152
Surveyor, marine, duties of, 66
Surveyor's certificates, 232, 233
Taxation of vessel, situs for, 15
Taxation, when proceeds of vessel exempt, under Merchant
Marine Act, 275
Taxes. _See_ Excess Profits Tax, Income Tax, Tonnage Taxes
Temporary ownership, rights and liabilities, 33
Territoriality of vessel, 14, 15, 193, 194
Theft, exception of, 99
Through export rates under Merchant Marine Act, 277
Through fares on American vessels under Merchant Marine Act, 277
Time charters, 101, 105
Title and transfer, Chapter II, 10-24
under Merchant Marine Act, 284, 289
Title, record, not conclusive of ownership, 36
Tonnage. _See_ Register tonnage
official. _See_ Official tonnage
Tonnage taxes, 257
Torts liability for, during temporary ownership, 33
liability of owner for master's or vessel's, 31-33
liability of ship for, 112
liens arising out of, 126
maritime, defined, 4
owner's, 31
vessel liable for, 33, 34
Tow, liability in tort, 112
Towage and pilotage, Chapter XII, 159-179
Towage, distinguished from salvage, 184
lien for, under Merchant Marine Act, 285
Trade routes, Shipping Board to establish under Merchant
Marine Act, 267
Transfer. _See_ Title and transfer
Treaties, restricting discriminating duties, to be terminated under
Merchant Marine Act, 287
Trial, jury, seamen's right to, under Merchant Marine Act, 287
Trial of offenses, place of, 194
Trover, for wreck, 206
Trustees and executors, sales by, 18, 19
Trustees, may be owners, 25
Tug. _See_ Towage and pilotage
liability in tort, 112
Tutuila, registry of vessels trading with, 12
Underwriters, liability of, 113
Unfair practices, Shipping Board to make rules to meet under Merchant
Marine Act, 272
United States Compiled Statutes 1916. _See_ Compiled Statutes
United States Revised Statutes. _See_ Revised Statutes
United States Shipping Board. _See_ Shipping Board
Unseaworthiness, penalty for, 195
Valuation in bill of lading, 99, 100
Vessel[37] (_see also_ Ship)
defined, 2
destruction before completion, effect on title, 11
foreign, American-built, recording of, 16
foreign-built, not to trade coastwise, 13
exceptions, 13
loss before completion, effect on title, 11
may sue and be sued, 5
of United States, what is, 13
personality of, 5, 33, 34
sale of, Chapter II, 17-24
territoriality of, 14, 15
under construction, not subject to admiralty jurisdiction, 11, 12
when subject to admiralty jurisdiction, 2
Vessels, provisions of Merchant Marine Act definition, 288
mortgaged, transfers of, 284
requisition of, War Emergency Act, repealed, 264
Voyage charter, dissolution by accident, 107
Voyage, whether coastwise, how determined, 13, 14
Wages (_see also_ Seamen), 64, 247, 248
in collision cases, 152
liability of master, 41
liability of owner, 31
lien, seamen's, 55, 61-63
lien under Merchant Marine Act, 280
master's, 43
War, effect on charters, 107
Warranty, in sales, 23, 24
none in admiralty sale, 18
Washing places for seamen, 249
Watch and Watch, 248
Watch officers, nationality of, 246
must be citizens, 13
Watchman, lien for wages, 62
Water tenders, hours of labor, 248
Waters subject to admiralty Jurisdiction (_see also_ Jurisdiction), 3, 4
Wharfage and moorage, Chapter XVI, 209-217
Wharfinger's lien, 214
Wireless, penalty for failure to carry (_see also_ Radio telegraph), 195
Work day, 248
Workmen's compensation laws, as applied to seamen, 56, 57
Wreck, collision with, 148
master's duty to preserve, 51
not within admiralty jurisdiction, 2
rebuilt, registry of, 12
registry of, 230
Wreck or stranding, as affecting cargo, 51
Wrecks and derelicts, Chapter XV, 202-208
Writs, 220-222
Yachts, registry of, 13
York-Antwerp Rules, 7
Yukon River, traffic on, whether coastwise under Merchant Marine
Act, 277
[35] The several subjects treated of in this act are indexed under their
titles throughout this index, with page references to the text of the
act.
[36] The several subjects treated in this act are indexed under their
titles throughout this Index, with page references to the text of the
act.
[37] For what is or is not a vessel, _see_ particular titles, such as
Dredge, Raft, Drydock, etc.
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.
=1. Ocean Steamship Traffic Management.=
BY G. G. HUEBNER, PH.D.
Training in the responsibilities of the broker, the freight agent and
other traffic agencies, and in the forms used in the shipping business.
=2. Marine Insurance.=
BY S. S. HUEBNER, PH.D.
Training in the important responsibilities of the marine insurance
agent and broker.
=3. The Law of the Sea.=
BY GEORGE L. CANFIELD, LL.B., AND GEORGE W. DALZELL.
Legal relations, rights, duties, and obligations of shippers, steamship
owners, operators, masters, and seamen; the legal relations of the ship
from construction contract to sale as salvage.
=4. Merchant Vessels.=
BY ROBERT RIEGEL, PH.D.
Their types, uses, tonnage, measurements, and construction; some things
the steamship man ashore should know about ships.
=5. Wharf Management and Stevedoring and Storage.=
BY R. S. MACELWEE, PH.D., AND THOMAS R. TAYLOR, A.M.
Duties of the pier superintendent, receiving clerks, tally men, and
stevedore foreman. Includes wharf layout and construction,
cargo-handling machinery, port charges and dues, stevedoring,
longshoremen, labor problems, etc.
=6. Steamship Operation.= (Projected.)
*** End of this LibraryBlog Digital Book "The Law of the Sea - A manual of the principles of admiralty law for students, - mariners, and ship operators" ***
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