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 ePKi- 
 
 A TREATISE 
 
 MARITIME LAW. 
 
 INCLUDIXO 
 
 THE LAW OF SHIPPING ; THE LAW OF MARINE INSURANCE ; 
 AND THE LAW AND PRACTICE OF ADMIRALTY. 
 
 BT 
 
 THEOPHILUS PARSONS, LL.D., 
 
 DANE PROFESSOR OF LAW IJJ HARVARD UNIVERSITY; AND AUTHOR OF TREATISES 
 
 ON THE I^VW OF contracts; the ELEMENTS OF MERCANTILE LAW; 
 
 AND THE LAWS OF BUSINESS FOR BUSINESS MEN. 
 
 IX TWO VOLUMES, 
 
 VOL. I. 
 
 BOSTON: 
 
 LITTLE, BROWN AND COM TAN Y. 
 1859.
 
 y.l 
 
 T 
 
 \^S9 
 
 Entered according to Act of Congress, in the year 1859, by 
 
 THEOPHILUS PAKSONS, 
 
 In the Clerli's OfiBce of the District Court of the District of Massachusetts. 
 
 CAMBRIDGE : 
 ALLEN AND FARNIIAM, PRINTER!
 
 TO 
 
 CHARLES G. LORIXG, ESQ. 
 
 > My dear Friend, 
 
 Let me dedicate this work to you. The arduous and honora- 
 ble office you now hold has taken you from your high position 
 at the Bar, where you had all the success and distinction our 
 profession could give. But the mercantile community (as you 
 know, to your cost I should say, if you were not one of those 
 who love labor) will not consent to lose the advantage of your 
 experience, your learning, and your sagacity. And if any of 
 the questions submitted to you lead you to open these vol- 
 umes of mine, and you find there some of the cases in which, 
 in the olden time, we met, — as opponents, but not as ene- 
 mies, — you will be willing, I think, to remember how long 
 our friendship has lasted ; and you will pardon me for saying, 
 that I have always regarded it as contributing to the honor 
 and the happiness of my life. "^ 
 
 TIIEOrillLl^S PArxSONS. 
 
 (C^/^ "^//^
 
 PREFACE. 
 
 Before I came to Cambridge, and while still engaged 
 in the business of my profession, I had become convinced 
 that the books in the different departments of maritime 
 law, excellent as some of them w^ere, were still open to 
 the objection, that they treated severally and disconnect- 
 edl}^, topics which in themselves were closely connected 
 and needed the mutual illustraticm they could give each 
 other. It seemed to me that the Law of Shipping and 
 the Law of Marine Insurance, for example, could not be 
 learned fully and accurately excepting in their connec- 
 tion. How these subjects intermingle in some of their 
 subdivisions, is obvious. Thus, no work on Shipping 
 would leave the subject of General Average untouched ; 
 and certainly no work on Insurance could do so. But 
 does this topic belong more properly to Shipping or to 
 Insurance ? It belongs to both ; and equally to both ; 
 and connects the two together. And to go beyond this, 
 it may be said that there is no topic of either of these 
 systems of law, which can be treated of with any ful- 
 ness, without a frequent reference, more or less direct, 
 to the same topic as it stands in the other of those sys- 
 tems. 
 
 Moreover, the appropriate and specific law of remedy
 
 VI PREFACE. 
 
 or enforcement for all maritime matters, is the Law of 
 Admiralty. And, waiving for the present, the question 
 whether a policy of insurance is within the jurisdic- 
 tion of American Admiralty, Salvage, which is equally 
 important in Shijoping and in Insurance, and is another 
 of those links which unite them, belongs almost exclu- 
 sively to Admiralty. And the whole subject of maritime 
 liens, as distinct from common law liens, is, in a good 
 degree, and ought to be, I think, in a far greater degree, 
 committed to the charge of Admiralty, and governed by 
 the principles and enforced by the processes of Admiralty 
 courts. • 
 
 But without attempting to illustrate, by further details, 
 my reasons for believing that these topics are interde- 
 pendent branches from one great stem — the science of 
 Maritime Law — it is enough to say that eight years ago 
 I began this book, for these reasons; and that it ought 
 to be, as a whole, and in all its parts, an illustration of 
 them. 
 
 I am not, however, willing to admit that the faults of 
 this work indicate a mistake in my theory. Great diffi- 
 culties in the execution of my purpose arose from the 
 fact, that these topics had been heretofore regarded as in 
 so great a degree isolated and independent. And I can- 
 not but think that there are important defects and mis- 
 chievous uncertainties in the maritime law of Eno-land 
 and of this country, at this day, which would never have 
 existed, had the various relations, rights, obligations, and 
 remedies which belong to it, been usually regarded as 
 parts of one whole. For example, the law of the sale 
 of distant ships and cargoes and the law of abandonment
 
 PREFACE. Vll 
 
 would not, I think, and the law of lien on ships and car- 
 goes would not, I am certain, have been in that case, 
 what they are now. 
 
 I add, that by adhering to my plan of putting very few 
 cases in the text, but making that, as far as I could, a 
 connected and logical statement of all the principles 
 and rules of the law, and placing in the notes the au- 
 thorities on which they rest with such citations as seem to 
 afford needed illustration, or due qualification, I have suc- 
 ceeded in compressing my work within these two vol- 
 umes. 
 
 Long ago I had become satisfied, that the boundless 
 affluence of existing legal authority, and the rapid increase 
 of the reports of English and American courts, and of 
 other repositories of the law, made it with every passing 
 year, more difficult for a lawyer to possess the means of a 
 thorough investigation, and impossible for him to give 
 the time and labor necessary for such investigation, to the 
 many questions which arise in practice. I was further 
 convinced, that books might be made in which this labof 
 of investigation should be so thoroughly performed, and 
 the results so given in the text, and the authorization and 
 illustration so put forth in the notes, as in most cases to] 
 render further research unnecessary, and to make it much' 
 .easier when necessary. It is this book that I have en- 
 deavored to make. The difficulty of accomplishing such 
 a work was obvious; but it did not seem impossible. I 
 knew that it could not be made without the command of 
 a completed library, and that I have here ; and an accu- 
 mulation and consolidation of the results of a very large 
 amount of intelligent labor, and for this purpose I have
 
 via PREFACE. 
 
 added to my own efforts the resources of skilful and 
 zealous industry within my reach. But while I believe 
 that none of the sources of our law have been left unex- 
 plored, I dare not hope that I have found every thing of 
 value. The materials thus gathered by me and for me, 
 I have w^orked over, again and yet again, with unfail- 
 ing patience at least, whether with success or not. For it 
 has been my single purpose, by the most careful and vigi- 
 lant elaboration of text and notes, to make as useful a 
 book as I could ; that is, one which should be, on the one 
 hand, complete, and on the other trustworthy. I now 
 give this book to the profession, lamenting its defects, and 
 fearing that it has faults which I do not discern; but 
 believing that I have a right to think that they are not 
 caused by any want of earnest and unremitting endeavor 
 on my own part, to make every page, and every part of 
 every page, as good as I am able to make it. 
 
 Of those who aided me most about my previous works, 
 I have spoken in the prefaces to them. I have received 
 valuable assistance in the present work from many per- 
 sons. I must indulge myself wdth mentioning particu- 
 larly, John Lathrop, Esq., of Boston, whose learning and 
 intelligence and fliithful industry, and capacity for ex- 
 haustive investigation, must soon give him a high place in 
 his profession. 
 
 In the Appendix to the first volume will be found a 
 complete collection of all the mercantile statutes and 
 statutory provisions of the United States, together wdth 
 the pilotage laws of New York and Boston (which may at 
 least serve as a sample of all), and the rules for the navi- 
 gation of steamers prepared by the Commissioners of the
 
 PREFACE. IX 
 
 United States. If I may judge at all by my own wants 
 in years past, such a collection may be of great use to the 
 practical lawyer. 
 
 In the Appendix to the second volume, will be found 
 such forms, whether of contract or of practice, as seemed 
 to me most desirable. 
 
 * T. P. 
 
 Harvaed Univeksity ; Dane Law School.
 
 CONTENTS. 
 
 BOOK I. 
 
 * 
 
 ON THE LAW OF SHIPPING. 
 
 CHAPTER I. 
 
 ON TUE HISTORY AND ORIGIN OF THE LAW OF SHirPING. 
 
 SECTION I. 
 
 PAOX 
 
 Of the principal foreign codes and writers which treat of this law . 3 
 
 SECTION 11. 
 
 Of the English adjudication which created or defined this law . . 18 
 
 CHAPTER II. 
 
 OF THE REGISTRY AND NAVIGATION LAWS. 
 
 SECTION I. 
 Of the history of the registry acts 25 
 
 , SECTION II. 
 
 "What ships may be registered, and what enrolled 28 
 
 SECTION III. 
 In what way vessels may be registered, or enrolled 32
 
 Xll CONTENTS. 
 
 SECTION IV. 
 Of the effect of registry or enrolment 34 
 
 CHAPTER III. 
 
 OF THE TRANSFER OF A SHIP BY SALE. 
 
 SECTION I. 
 Of the sale of a ship without writing 47 
 
 • SECTION 11. 
 Of the transfer of a ship by bill of sale 56 
 
 SECTION III. 
 Of the sale of a ship by the master 59 
 
 SECTION IV. 
 Of the sale of a ship under a decree of admiralty 65 
 
 SECTION V. 
 
 How far the common rules respecting the sale of a chattel apply to 
 
 the sale of a ship 69 
 
 1. As to the rules of evidence and agency . 69 
 
 2. What are the appurtenances of a ship ....... 71 
 
 3. Of the sale of a ship by the builder 74 
 
 4. Of the possession of the purchaser 78 
 
 CHAPTER IV. 
 
 OF PART-OWNERS. 
 
 SECTION I. 
 How partnership in vessels is created 82 
 
 SECTION 11. 
 Of the powers of a part-owner 84
 
 CONTENTS. XUl 
 
 SECTION III. 
 
 Of tbe liability of part-owners for repairs or supplies 89 
 
 SECTION IV. 
 
 Of the liability of part-owners for tbe torts of those whom they 
 
 employ 94: 
 
 SECTION V. 
 
 Of the liability of part-owners to each other 95 
 
 SECTION VI. 
 Of the ship's husband 97 
 
 SECTION VII. 
 
 Of the liens of part-owners, and of actions by and against them . 101 
 
 CHAPTER V. 
 
 OF THE LIABILITIES OF OWNERS GENERALLY. Ill 
 
 CHAPTER VI. 
 
 OF HYPOTHECATION BY BOTTOMRY. 118 
 
 CHAPTER VII. 
 
 OF THE USE OF THE SHIP BY THE OWNER. 
 
 SECTION I. 
 Of the carriage of goods on freight 121 
 
 SECTION 11. 
 Of the bill of lading 132 
 
 SECTION III. 
 Of the delivery of tbe goods 149 
 
 SECTION IV. 
 
 Of the forwarding of the goods in other vessels 158 
 
 VOL. I. B
 
 XIV ^ CONTENTS. 
 
 SECTION V. 
 Of ships as common earners 173 
 
 SECTION VI. 
 Of eoUision . 187 
 
 •SECTION VII. 
 
 Of the claim foi* damages for non-delivery of the goods or injury 
 
 to them ^ 212 
 
 SECTION VIII. 
 Of the liability for freight .219 
 
 CHAPTER VIII. 
 
 OF CHARTER-PARTY. 
 
 SECTION I. 
 "What constitutes a charter-party 229 
 
 SECTION II. 
 Of the general provisions of a charter-party 232 
 
 SECTION ni. 
 
 Of the lien of a chartered ship on her cargo for the freight . . . 250 
 
 . SECTION IV. 
 Of the payment by a charterer 256 
 
 SECTION V. 
 Of demurrage and lay days 260 
 
 SECTION \^. 
 Of the construction of charter-parties . . ' 267 
 
 SECTION VII. 
 
 Of the dissolution of a charter-party, or of its obligations . . . 273
 
 CONTENTS. XV 
 
 CHAPTER IX. 
 
 ON GENERAL AVERAGE. 
 
 SECTION I. 
 
 Of the origin and foundation of the law of general average . . . 284 
 
 SECTION II. 
 
 That there must be a voluntary sacrifice of property for the benefit 
 of other property 288 
 
 SECTION III. 
 
 Of some expenses or charges usually settled as general average . 310 
 
 SECTION IV. 
 
 That the sacrifice must be justified by a necessity 312 
 
 SECTION V. 
 That the sacrifice must be successful 314 
 
 SECTION VI. 
 "When the thing sacrificed could not have been saved 316 
 
 SECTION Yll. 
 
 Whether the property in peril and rescued must be saved by the 
 
 sacrifice 318 
 
 SECTION VIII. 
 Of contribution for a general average loss 320 
 
 SECTION IX. 
 Of the adjustment of a general average loss and contribution . . 331 
 
 CHAPTER X. 
 
 OF STOPPAGE IN TRANSITU. 
 
 SECTION I. 
 
 Of the origin and history of the right of stoppage in transitu . . 235
 
 XVI CONTENTS. 
 
 SECTION 11. 
 
 That tins right is but an extension of the lien of the seller . . . 339 
 
 SECTION III. 
 
 "When this right may be exercised 342 
 
 A. Of the constructive possession of the seller 342 
 
 B. Of goods warehoused 343 
 
 C. "When the delivery on shipboard terminates the transit . . 347 
 
 D. How the lien of the carrier affects this right 350 
 
 E. "When goods are lodged in the custom-house 351 
 
 F. Of constructive delivery of the goods 352 
 
 G. "Whether the consignee may hasten his own possession . . 355 
 
 H. Of the delivery of a part of the goods 357 
 
 I. Of the effect of the bill of lading on this right 358 
 
 SECTION IV. 
 How far the exercise of this right must be adverse to th.e seller . 366 
 
 SECTION V. 
 "What insolvency will give this right 369 
 
 SECTION VI. 
 
 How the right of stoppage may be exercised and enforced . . . 373 
 
 CHAPTER XI. 
 
 OF THE DUTIES AND POWERS OF THE MASTER. 
 
 SECTION I. 
 
 Of the foundation and nature of the master's authority .... 378 
 
 SECTION II. 
 Of the master's power from necessity ..."....... 385 
 
 SECTION III. 
 
 How far the owner is liable for the torts of the master .... 391 
 
 SECTION IV. 
 
 Of the contracts of bottomry and of respondentia 406 
 
 A. Of the purpose of a bottomry bond 406 
 
 B. Of bottomry bonds made by the owner 410
 
 CONTENTS. XVll 
 
 C. When the master may make a bottomry bond 412 
 
 D. Of the duty and obligation of the lender on bottomry . . . 418 
 
 E. When additional security may be given to the lender . . . 420 
 
 F. Of a bottomry bond for supplies or repairs 422 
 
 G. Of a second bottomry bond 425 
 
 II. To whom a bottomry bond may be made 425 
 
 I. A bond may be good in part and void in part 428 
 
 J. Of the hypothecation of the freight 429 
 
 K. Of the construction of a bottomry bond ' . 429 
 
 L. Of the power of the master over the cargo 433 
 
 M. Of a respondentia bond ■ . . . . 436 
 
 N. Some special rules in regard to bottomry bonds 439 
 
 CHAPTER XII. 
 
 OF THE SEAMEN. 
 
 SECTION I. 
 How seamen are regarded by the courts . . . j 441 
 
 SECTION 11. 
 Of the shipping articles 442 
 
 SECTION III. 
 
 Of provisions 452 
 
 • 
 SECTION IV. 
 
 Of the sea-worthiness of the ship 454 
 
 SECTION V. 
 Of the care of seamen in sickness 45 G 
 
 SECTION VI. 
 
 Of the return of seamen to this country 458 
 
 SECTION VII. 
 Of the disobedience of seamen 463
 
 Xviii CONTENTS. 
 
 SECTION VIII. 
 Of the desertion of seamen 470 
 
 SECTION IX. 
 
 Of the contract of the seamen ... 476 
 
 CHAPTER XIII. 
 
 OF PILOTS. 
 
 SECTION I. 
 "Who pilots are and what their duties are 479 
 
 SECTION 11. 
 
 How far owners are responsible for the torts of pilots 484 
 
 CHAPTER XIV. 
 
 OF MATERIAL MEN AND THEIR LIENS. 489 
 
 APPENDIX. 
 
 Statutes of the United States on subjects connected with Shipping . 505 
 
 An act to provide for the licensing and government of. the pilots and 
 regulating pilotage of the port of New York, passed June 28, 1853, 
 embodying the amendments, passed April 11^ 1854, and April 4, 
 1857 ; also, the by-laws of the board of commissioners of pilots 
 for the port of New York C51 
 
 General regulations for pilotage in the Commonwealth of Massa- 
 chusetts GG2 
 
 Rules and regulations for the government of pilots in charge pf 
 steamers. In compliance with the Act of Congress of August 30, 
 1852 • . . 677 
 
 Note . . ■ 684
 
 INDEX 
 
 TO CASES CITED, 
 
 PAGE 
 
 Abbey v. The R. L. Stevens 176 
 
 Abbot V. Smith 104 
 
 Abbott V. Bait. & Kapp. S. P. Co. 381 
 Aberfoyle, The 391 
 
 Active^ Sch. 492, 502 
 
 ■Adah- V. New Eivcr Co. 84 
 
 Adams v. Hanght 148, 161, 164, 166 
 
 V. N. O. Steamboat Co. 176 
 
 V. Pcnn. Ins. Co. 122 
 
 Addis V. Baker 81 
 
 Addison v. Overend 103, 104 
 
 Adkins r. Baker 106 
 
 Admiral, The 207 
 
 Adolpb, The 431 
 
 Adonis, The 435 
 
 African Steamship Co. v. Swanzy 39^ 
 Agincourt, The 464 
 
 Agrieola, The 483, 485, 486, 487 
 
 Agricultural Bank v. Barque Jane 260, 415 
 Airey v. Brig Ann C. Pratt 449, 469 
 
 r. Merrill 183,218 
 
 Akerman v. Ilumphery 344 
 
 Alliatross, Steamboat, v, Wayne 107, 156 
 Albright v. Penn 176 
 
 Aldcn V. Pearson 150 
 
 Alderson v. Temple 368 
 
 Aldrich v. Simmons 482 
 
 Alers V. Tohin 438 
 
 Alexander, The (1 ftods.) 72, 412, 422, 
 
 426, 431 
 
 (1 W. Bob.) 490, 491 
 
 Alexander Wise, The 196 
 
 Alexander v. Dowie 82, 382 
 
 V. Galloway 468 
 
 t\ Greene 176 
 
 v. Sirams 226 
 
 Alida, The 494, 495 
 
 Aline, The 205, 429 
 
 Aliwal, The 195 
 
 Allan V. Gripper 353 
 
 Allen I'. Ilallet 448, 46G, 475 
 
 V. Hitch 477 
 
 Allen r. Mackay 122, 189, 196, 202, 404 
 
 V. ]\Iercier 351 
 
 r, Sewall 175 
 
 V. Williams 135, 140, 141, 362 
 
 Almgren v. Dntilh 230, 232 
 
 Alsager v. St. Kathcrine's Dock Co. 144 
 
 Alston V. Herring 170 
 
 America, The 207,471 
 
 American Ins. Co. v. Center 163 
 
 V. Coster 436, 439 
 
 V. Ogden 63 
 
 Ames V, Belden 281 
 
 V. Dyer 495 
 
 V. Swett 500 
 
 Amiable Nancy, The 393 
 
 Amis V, Steamboat Louisa 497 
 
 Amos r. Temperly 220 
 
 Amstel, The 489 
 
 Anders v. Meredith 85 
 
 Anderson i-. Clark 341 
 
 V. Ilillies 256 
 
 V. Sloop Solon 469 
 
 Andrew r. IMoorliousc 223 
 
 Andrews r. Durant 76 
 
 V. Estes 231 
 
 V. Poach 164 
 
 Ann & ]\Iary, The 196, 210 
 
 Ann C. Pratt, Brig 408, 412, 419, 421 
 
 Ann D. Richardson, The 167, 326, 329 
 
 Anna Maria, The 393 
 
 Anne, The 479, 480 
 
 Annett y. Carstairs 115 
 
 Anonymous, (1 Hall Am. L.J.) 443, 445 
 
 (Hard res) 19 
 
 (Ld. Raym.) 94 
 
 (12 Mod.) 125,127 
 
 (1 Pet. Adm.) 477 
 
 (2 Shower) 222 
 
 (Skinner) 86 
 
 Apollo, The 103 
 
 A]iplcby i\ Dods 446 
 
 Applcton r. Crowninsbield 413 
 
 Arabella, The, & The ^Madeira 68
 
 INDEX TO CASES CITED. 
 
 Araininta, The 448 
 
 Arayo c. Ciirrcl 384, 395 
 
 Arcficr, Steamboat v. Goldstein 108 
 
 Argus, The 196 
 
 Arjiyle, Si-h. v. Worthington 107 
 
 Ariatliic, The 225, 420, 423 
 
 Arina, L' 390 
 
 Armadillo, The 409 
 
 Armroyd v. Union Ins. Co. 66, 149, 165, 
 
 166, 168 
 42, 43 
 185 
 393 
 176 
 125 
 278 
 380.381,414 
 
 Armstrong r. Armstrong 
 Ai'nold V. Anderson 
 V. Del Col 
 V. Ilalenbake 
 Artaza r. Smallpiece 
 Arthur, The 
 
 r. Barton 
 
 V. Sch. Cassius 151, 155, 235, 435 
 
 Ash V. Putnam 366, 367 
 
 Ashburncr v. Balchcn 238, 247 
 
 Asi)inwall v. Bartlet 253 
 
 Assicvcdo V. Caml)ridge 68 
 
 Atchison c. Steamboat Dr. Franklin 204 
 
 Atkin V. Barwiek 366 
 
 Atkinson v. Bell 75 
 
 V. Cotesworth 256, 389 
 
 r. Maling 53,57,80,112 
 
 i\ Stephens 439 
 
 Atkvns V. Burrows 449, 461, 466, 469 
 
 Atlantic, The (Abbott, Adm.) 446, 457, 
 
 458, 460 
 
 (1 Newb. Adm.) 407, 408,. 
 
 420 
 
 Atlantic Ins. Co. v. Conard 419 
 
 Atlas, The 406, 407, 485 
 
 Attorney-General v. Case 484, 486 
 
 V. Norstedt 65 
 
 Atty V. Parish 262 
 
 Atwood r. Reliance Transp. Co. 150, 178 
 
 V. Williams 500 
 
 Augusta, The 422, 423, 424, 428, 429 
 
 Aurora, The 225, 381,385,417,418,419, 
 
 423, 424, 425, 429 
 
 Aurora Borealis, Sch. v. Dobbie 1.10 
 
 Austin V. Dewey 472 
 
 V. U. S. & L. Eaihvay Co. 1 79 
 
 V. Walsh . 104 
 
 Auvray r. Steamboat Pawnee 109 
 
 Avery v. Bowden 
 Aycrs r. Knox 
 
 248, 274, 280 
 480 
 
 B. 
 
 Babcock v. Herbert 176 
 
 Backhouse i'. Sneed 239 
 
 Backus V. Sch. Marengo 137 
 
 Badger v. Bank of Cumberland 56 
 Badlam r. Tucker 80,81,112 
 
 Baglehoic i\ Walters 70 
 
 Bailey v. Steamboat Concordia 497 
 
 I'. CulvcrwcU 376 
 
 V. Damon 129, 247 
 
 Baillie v. I^Ioudigliani 
 Baker v. Brinson 
 
 V. Buckle 
 
 V. Corey 
 
 V. Gray 
 
 V. Iluckins 
 
 V. Jewell 
 Baldney v. liitchie 
 Bailey v. De Arroyave 
 Baltic Merchant, The 
 Bangor v. Warren 
 Bangs V. Little 
 Barbara, The 
 Barber c. Brace 
 Barclay r. Clyde 
 
 V. CucuUa y Gana 
 Barelli v. Hagan 
 Baring v. Corrie 
 Barker v. Cheriot 
 
 V. Havens 
 
 V. Hodgson 
 
 V. Phoenix Ins. Co. 
 
 V. Windle 
 Barnaby v. Rigalt 
 Barnard v. Adams 288,291, 
 
 V. Wheeler 
 Barna.rdiston v. Chapman 
 Barnes r. Bartlett 
 
 r. Cole 
 
 V. Frecland 
 
 V. Taylor 
 Barney v. Coffin 
 
 V. Prentiss 
 Baron Holberg, The 
 Barret v. Dutton 
 Barrett ;'. Goddard 
 
 V. Rogers 
 
 V. Williamson 
 Barrick v. Buba 
 Barrow, Ex parte 
 
 V. Coles 
 Barruso v. ]\[adan 
 Barstow v. Possett 
 Bartlett v. Carnley 
 
 r. Wyman 
 Barton v: Boddington 
 
 1-. Salter 
 
 V. Williams 
 Bartram r. Parcbrother 
 
 V. M'Kee 
 Bas V. Steele 
 Batavier, The 
 
 Bates V. Steamboat Madison 
 V. Steamboat Natchez 
 V. Todd 
 Batson, J£x parte 
 
 V. Donovan 
 Battersby v. Gale 
 Baxter v. Leland 
 
 r. Rodman 
 Bay State, The 
 Baylies v. Fettyplace 152, 
 
 166 
 
 150, 178, 179 
 
 115 
 
 383, 451 
 
 72, 77 
 
 112 
 
 104 
 
 41, 89, 91 
 
 262 
 
 473, 475 
 
 93 
 
 465 
 
 410,415 
 
 186, 307, 309 
 
 154 
 
 181, 384 
 
 324 
 
 363, 365 
 
 149, 259 
 
 222 
 
 265, 274 
 
 296, 298 
 
 238 
 
 19 
 
 292,296,310, 
 
 327 
 
 147, 258- 
 
 85, 103 
 
 85 
 
 188 
 
 368 
 
 56 
 
 477 
 
 178 
 
 196, 486 
 
 264 
 
 343 
 
 136 
 
 205 
 
 248, 274 
 
 84 
 
 140, 361 
 
 268 
 
 105 
 
 128 
 
 448 
 
 346 
 
 474 
 
 85 
 
 366, 376 
 
 170, 172 
 
 44, 56 
 
 201, 202, 485 
 
 108 
 
 211 
 
 137 
 
 . 80, 81 
 
 177, 179 
 
 75 
 
 170, 185 
 
 477 
 
 189, 198 
 
 219, 267, 275
 
 INDEX TO CASES CITED. 
 
 XXI 
 
 Bayly v. Schofield 
 Bazin v. Richardson 
 Beach v. Sch. Native 
 Beale r. Thompson 
 Bean v. Green 
 Beane v. The Mavurka 
 
 372 
 
 124, 151, 182 
 
 490, 492 
 
 219, 281, 472 
 
 176 
 
 202, 334 
 
 Beardstown, Steamboat, v. Goodrich 108 
 
 Bearsc v. Eopes 173, 185 
 
 Beaver, The 4G2 
 
 Beck !'. Evans 179 
 
 Beckham r. Kniglit • 87 
 
 Beckman v. Shouso 178 
 
 Beckwith v. Baldwin 481 
 
 Bedford Comm. Ins. Co. v. Parker 326 
 
 Belcher v. Capper 145, 233, 251 
 
 Beldon v. Campbell 89, 380, 381, 415 
 
 Bell V. Humphries 99 
 
 V. Kymer 221 
 
 V. Moss 342, 359, 374 
 
 V. Puller 249 
 
 r. Reed 150,181,240 
 
 I.', evmith 321 
 
 Bellamy r. Russell 170, 172 
 
 Benares, The 397, 403 
 
 Benjamin v. Sinclair 137 
 
 Bennct v. Moita 485 
 
 Bennett v. Button 177 
 
 r. Pilyaw 175 
 
 V. Peninsula and Oriental 
 
 Steamboat Co. 176 
 
 Benny v. Pegram 3G3 
 
 V. Rhodes • 363 
 
 Benson v. Blunt 264 
 
 V. Duncan 421 
 
 , V. Ileathorn 98 
 
 V. Schneider 243 
 
 V. Thompson 90 
 
 Bentlcy v. Bustard 178, 179, 184,313, 314 
 
 Benton r. Whitney ■ 464 
 
 Berg V. Bond 298 
 
 Bergstrom y. Mills 219,281 
 
 Berkley v. Watling 137, 359 
 
 Bcrnal v. Pim 258 
 
 Bersie v. Steamboat Shenandoah 108 
 
 Bessey v. Evans 264 
 
 Best I'. Saunders 379 
 
 Betsey, The 278, 279, 430 
 
 Betsey Caines, The 205 
 
 Betsey & Rhoda, The 146 
 
 Betsey, Brig v. Duncan 474 
 
 Belts 'r. Gibliens 358 
 
 Bevan v. Bank of the United States 323, 
 
 325 
 
 BiddcU i\ Leeder 57 
 
 Biddlccomb i\ Bond 372 
 
 Bidwell V. Wliitaker 109 
 
 Bigelow V. Ileaton 127, 147 
 
 Biggs V. Barry 354, 370 
 
 V. Lawrence 225 
 
 Bird r. Brown 351, 376 
 
 Birkbeck ('. Tucker 115 
 
 Birkenhead, The 198 
 
 Birkett v. "Willan 179 
 
 Birkley v. Prcsgrave 289, 313, 334 
 
 Birley v. Gladstone 124, 128 
 
 Bishop V. Shepherd 473, 477 
 
 Bissel v. Price 136, 137, 143, 150 
 
 Bixbv V. Franklin Ins. Co. 41, 56, 296 
 Black V. The Louisiana 461, 469 
 
 Blackstock v. Leidy 236 
 
 Blaine v. The Charles Carter 119, 406, 
 
 430, 433 
 Blaisdell v. Steamboat "NYm. Pope 109 
 Blake, The 468, 469 
 
 Blakey v. Dixon 224 
 
 Blanchard v. Bucknam 259 
 
 V. Pago ■ 214, 222 
 
 Blanck r. Solly 225 
 
 Bland, Ex parte 87, 91, 381, 491 
 
 Blandy v. Allan 365 
 
 Blass V. Steamboat Robert Campbell 109 
 Blenheim, The 203 
 
 Block i\ Bannerman 395 
 
 Blossom, Pilot boat 194, 195, 196, 201, 
 
 204 
 Bloxam v. Hubbard 57 
 
 V. Sanders 340 
 
 Blue Wing, Steamboat, v. Buckner 194 
 Boardman v. Brig Elizabeth 471 
 
 Boddington's, The 432 
 
 Bodenham v. Bennett 179 
 
 Boehtlinck v. Schneider ' 348 
 
 Boggs V. Martin 258 
 
 r. Russell 173 
 
 Bohtlingk w. Inglis 34", 348, 375 
 
 Bold Bucclcugh, The 124, 207 
 
 Bolin V. Huffuagle 347 
 
 Bolina, The 187, 192 
 
 Bolton r. American Ins. Co. 481 
 
 Bonaparte, The 415,437 
 
 Bond V. The Cora 123 
 
 V. The Superb . 298 
 
 Bonsey v. Amee 77 
 
 Boon V. The Hornet 492 
 
 Boone v. Evrc 268, 270 
 
 Borden r. Hiern 470, 475 
 
 Boreal v. The Golden Rose 416, 492 
 
 Bork r. Norton 267, 275 
 
 Bornmann v. Tooko 172, 271 
 
 Boson V. Sandford 104, 175 
 
 Boston, The (Blatchf. & II. Adm.) 
 
 129, 412, 418, 424, 439 
 Steamboat (Olcott, Adm.) 
 
 200, 201, 207 
 Boucher v. Lawson 1 70, 392 
 
 Bourcier v. Sch. Ann 493 
 
 Bowcher r. Noidstroni 94, 482 
 
 Bowen v. Stoddard 386 
 
 Bowie V. Napier 363 
 
 Bowman v. Teall 176 
 
 Bovd ('. Steamboat Falcon 107 
 
 Braden v. Gardner 96, 102 
 
 Bradlmrst i: Col. Ins. Co. 292, 293, 314 
 Bradley r. Bolles 490 
 
 Bradstreet v. Baldwin 151 
 
 V. Heron 152, 173
 
 XXll 
 
 INDEX TO CASES CITED. 
 
 Bradstrcct v. Neptune Ins. Go. 
 Braincrd v. Steamer Worcester 
 
 C7 
 194, 
 
 Brancker r. Molvncux 11.5, 
 
 Brandt v. Bowlhy 140, 142, 212, 
 
 Brass v. Maitland 
 
 Bray v. Ship Atlanta 471, 472, 
 
 V. Bates 407, 411, 41 &, 
 
 Breed v. Ship Venus 387, 412, 
 
 Brereton v. Chapman 
 Brcthcrton i\ Wood 
 Brewster v. Clarke 
 Bricc V. The Nancy 
 Bridge v. Grand Junction Railway 
 Co. 188, 
 
 Bridofcford v. Steamboat Elk 
 
 , G8 
 198 
 226 
 214 
 171 
 474 
 420 
 428 
 262 
 105 
 57 
 448 
 
 192 
 
 109 
 
 411, 418, 428 
 
 122, 246, 
 
 248, 
 
 80 
 
 41, 87 
 
 Bridgewater, Brig 
 Briggs V. Strange 
 
 V. Wilkinson 
 Bright V. Cowper 
 
 V. Page 
 Brinley v. Spring 
 Broadweil v. Butler 
 V. Swigert 
 Brodie v. Howard 
 Braider Trow, The 
 Bromwich i\ Lloyd 
 Brook V. Williams 
 Brooke v. Pickwick 
 Brookline, The ■ 
 Brooks V. Bondsey 
 
 V. Dorr 
 
 r. Minturn 152, 264, 265, 
 
 r. Oriental Ins. Co. 
 Brough V. Whitmore 
 Brouncker v. Scott 
 Brousscau v. Ship Hudson 
 Brower v. The ]\Iaiden 
 Brown v. Propeller Albany 
 
 i\ Cornwell 
 
 V. Delano 
 
 J-. Harris 
 
 V. Hodgson 
 
 V. Howard 
 
 V. Hunt 
 
 V. The Independence 460, 464 
 
 V. Johnson 262, 
 
 r. Jones 443, 444, 
 
 V. Lull 443, 445, 446, 
 
 r. State of Marvland 
 
 445, 
 79, 
 
 170, 
 
 223, 
 142, 
 
 259, 
 
 V. North 
 I". Putnam 
 V. Ralston 
 I'. Stapyleton 
 V. Tapscott 
 V. Wilkinson 
 Brownell v. Hawkins 
 Bruce v. Nicolopulo 
 Brunent v. Tabor 
 Bruni, In re 
 Brutus, The 
 
 1.38, 
 
 243, 
 
 152, 261, 
 
 324, 
 
 444, 
 
 Brvan 
 
 West 
 Bryans v. Nix 
 
 Steamboat Pride of The 
 
 115 
 271 
 264 
 , 81 
 218 
 188 
 , 91 
 190 
 
 21 
 390 
 179 
 448 
 115 
 462 
 266 
 293 
 
 72 
 262 
 171 
 472 
 491 
 309 
 274 
 227 
 213 
 464 
 267 
 467 
 266 
 445 
 447 
 
 5S 
 225 
 249 
 264 
 325 
 100 
 397 
 118 
 282 
 463 
 473 
 451 
 
 497 
 134 
 
 Bryant v. Commonwealth Ins. Co. 161, 
 
 162 
 500 
 466, 469 
 446 
 471 
 
 V. Brig Lillie Mills 
 Buck V. Lane 
 
 V. Rawlinson 
 Buckcr V. Klerktrcter 
 
 Buckley v. Furniss 354, 358, 369, 370, 373 
 
 r. Packard 
 Buddington v. Smith 
 
 V. Stewart 
 Bucl V. Miller . 
 Buffington v. Curtis 
 Bulgin V. Sloop Rainbow 
 Bulkley v. Barber 
 
 V. Honold 
 
 V. Storer 
 Bullcr V. Fisher 
 
 Bulloch 
 
 363 
 
 467 
 
 82, 116, 492 
 
 £73 
 
 135, 140, 362 
 
 390 
 
 83 
 
 69 
 
 105 
 
 180, 190, 191 
 
 Steamboat Lamar 191, 192, 
 193 
 
 Bulmer, The 
 Bunn V. Morris 
 Bunney v. Poyntz 
 Burchard v. Tapscott 
 Burgess v. Gun 
 Burghall v. Howard 
 Burgon r. Sharpe 
 Burke v. Clarke 
 Burnham i\ Winsor 
 Burquin v. Flinn 
 Burrill v. Cleeman 
 Burton v. Salter 
 Busk V. Davis 
 V. Fearon 
 Bussy V. Donaldson 
 Butler V. The Arrow 
 V. ISIcLellan 
 r. Wild man 
 V. Woolcott 
 Butterfield v. Forrester 
 Butts r. Cuthbertson 
 
 V. Dean 
 Buxton 1'. Snee 
 Bvrne v. Pattinson 
 
 C. 
 
 471 
 
 104 
 
 358 
 
 71 
 
 128 
 346 
 388 
 .89 
 352 
 385 
 
 152, 259 
 449 
 345 
 
 119,438 
 
 485, 487 
 137 
 
 464, 465 
 305 
 351 
 
 188, 192 
 
 106 
 
 93 
 
 116 
 
 259 
 
 Cabeen v. Campbell 354 
 
 Cabell V. Vaughan 103 
 
 Cabot, The 431 
 
 Cadmus, The 474, 475, 476, 477 
 
 Brig V. Matthews 445, 470, 473, 
 474, 475, 476, 477 
 Caldwell v. Ball 359 
 
 Calisto, The 116, 491, 499, 500, 502 
 
 Callender v. Ins. Co. of N. A. 166, 167, 
 
 168 
 Calvpso, The . 431 
 
 Cambridge, The 471 
 
 Cambridge v. Anderton 61 
 
 Camden v. Anderson 43 
 
 Camden & Amboy Railroad Co. v. 
 Baldauf 178, 179
 
 INDEX TO CASES CITED. 
 
 XXIU 
 
 Camden & Amboy Eailroad Co. v. 
 
 Belknap 177 
 
 Campbell v. Ship Alknomac 283 
 
 V. Jones 268 
 
 V. Perkins 234 
 
 • ~ V. Stein 99 
 
 V. Thompson 57, 435 
 
 v. Williamson 487 
 
 Campion v. Colvin 125 
 
 Canfield v. Northern Railroad Co. 220 
 
 Canizares v. The Santissima Trinidad 
 
 416, 452 
 Cannan v. Meaburn 60, 396, 397, 403, 435 
 Capper v. Forster 244 
 
 Card V. Hope 86, 110 
 
 Carey v. Scb. Kitty 469 
 
 Cariss i-. Johnston ' 136 
 
 Carl Johan, The 397 
 
 Carleton v. Davis 464 
 
 Carlisle v. Steamer Eudora 87 
 
 Carolus, The 197, 208, 485, 486 
 
 Carr v. Lancashire & Yorkshire lluil- 
 
 way Co. 179 
 
 Carrington v. Pratt 409, 419 
 
 Carroll v. Waters 89 
 
 Carruthers v. Sydebothara 485, 486, 487 
 Carsley v. White 192, 193 
 
 Carson v. Steamboat Daniel llillman 108 
 Carter v. Dowuish 20 
 
 V. Hall 447 
 
 Casco, The 124, 178, 185, 253, 281 
 
 Case c. Woolley 390 
 
 Castalia, The ' 471 
 
 Catherine, Tbe 59, 409, 410 
 
 Catherine of Dover, The 187, 188, 206, 
 
 210 
 Catherine, Sch. v. Dickinson 189 
 
 Catlett V. Pacific Ins. Co. 38 
 
 Catlcy V. Wintringham 153, 178 
 
 Cato V. Irving 226 
 
 Caton V. liiimney 176 
 
 Catlin v. Hill 191 
 
 Cazc V. Baltimore Ins. Co. 149, 160, 167, 
 
 168 
 I'. Kcilly 292 
 
 Celt, The 187, 203, 207 
 
 Center i'. Am. Ins. Co. 106 
 
 Certain Logs of Mahogany 125, 144, 145, 
 146, 233, 234 
 Chadwick v. City of Dublin Steam 
 
 Packet Co. 190 
 
 Chamberlain v. Chandler 395 
 
 r. Heed 225, 313, 332, 333 
 Chambers v. Crawford 09 
 
 Champion, Steamboat v. Jantzen 109 
 
 Champlin v. Butler 112 
 
 Chandler v. Belden 125, 126, 144, 360 
 V. Spraguc 138, 141, 30O 
 
 Chapman v. Durant 87, 89, 93 
 
 Cliai'lcton r. Cotosworth 379 
 
 Charleston & Col. Steamboat Co. v. 
 
 Bason 170 
 
 Charlotte, Steamboat, v. Kingsland, 502 
 
 Chase v. Westmore 
 
 
 145 
 
 Chauncy v. Jackson 
 
 
 107 
 
 Cheever i'. Smith 
 
 93 
 
 100 
 
 Cheriot v. Poussat 
 
 
 68 
 
 Chesley v. Thompson 
 
 
 85 
 
 Chester, The 
 
 195 
 
 196 
 
 Cheviot r. Brooks 
 
 
 435 
 
 Chickering i-. Fowler 
 
 
 155 
 
 Childc Harold, Bark 
 
 
 453 
 
 Child V. Sands 
 
 
 103 
 
 Childs V. Steamboat Brunette 
 
 
 501 
 
 Chinnery r. Blackburne 
 
 115 
 
 226 
 
 Chipiiendale v. Lancashire, etc. Rail- 
 way Co. 179 
 Chouteau v. Steamboat St. Anthony 109 
 Christiana, The (7 Notes of Cases) 483, 
 
 484, 485 
 
 (2 Hagg. Adm.) 485 
 
 Christie v. Lewis 125, 233, 252 
 
 V. Trott 239 
 
 Christina, The (8 Jurist) 206 
 
 (3 W. Rob.) 209, 484 
 
 Christopher, The 68 
 
 Christy v. Row 149,. 168, 221 
 
 iChusan, Banjue 93, 433, 492, 500, 502 
 
 Citizens Bank r. Nant. Steamboat Co. 175 
 
 City of New York, The Steamer 194 
 
 City of London, The 197, 199 
 
 Clapp V. Young 191 
 
 Clara M. Porter, The 1 96 
 
 Clarence, The 205 
 
 Clark 1-. Barnwxll 124, 135, 143, 150, 151, 
 
 170, 175, 185 
 
 r. Fax ton 177 
 
 r. Lardlaw 417,418 
 
 V. Bark Leopard 427 
 
 V. Mass. Fire &, M. Ins, Co. 100 
 
 V. Mauran 341 
 
 r. Uccan Ins. Co. 122 
 
 V. Smitli 495 
 
 I'. Spence (10 Watts) 150 
 
 V. United Mar. &. Fi^-c Ins. Co. 320 
 
 Clarke v. Batters 43 
 
 V. Cock 232 
 
 V. Crabtrec 247 
 
 V. Needles 132 
 
 V. Spence (4 A. & E.) 76 
 
 Clarkson v. Edes 125, 147, 233, 251 
 
 V. Phoenix Ins. Co. 299 
 
 Clav V. Harrison 340 
 
 Clement, The 192, 195, 196, 197, 201, 211 
 
 Clcmontson v. Blessig 274 
 
 Clemson v. Davidson 128, 159 
 
 Clendanicl v. Tuckcrman 151, 261, 262, 
 
 264 
 Clinton v. Brig Hannah 492, 498 
 
 (•lipsham v. Vertuc 270 
 
 Close V. Holmes 365 
 
 Cloutman v. Tunison 470, 472, 473, 4 74, 
 
 475, 476 
 Clutterbnck r. Coffin 448 
 
 Coats'r. Cliaplin 213 
 
 Coatcs V. Railton 354
 
 XXIV 
 
 INDEX TO CASES CITED. 
 
 Col)ban V. Downc 
 
 Cocliran v. Rctberg 
 
 Cock V. Taylor 219, 
 
 Cockburii V. Alexander 
 
 V. Thompson 84 
 
 Cocrninc, Sch. 499 
 
 Coffin V. Jculdns 470, 472, 473, 474, 475, 
 
 477 
 473 
 166, 167, 168, 169, 259 
 407, 432, 433, 439 
 417 
 
 V. Shaw 
 V. Storer 
 Cognac, The 
 ■ Cohen v. Sch. Amanda 
 V. Hnme 
 Cole V. The Atlantic 
 V. Bartlett 
 V. Goodwin 
 Coleman v. Brig Harriet 
 V. Lambert 
 V. Riches 
 Collier v. Valentine 
 Collins V. Union Transp. Co 
 Colombo, The 
 Colson V. Bonzey 
 Colt V. M'Mechen 
 Columbia, The 
 
 132 I Cordray v. Mordccai 
 266 I Corish v. The IMurpIiy 
 220 ! Cortelyoii v. Lansing 
 244 Cotcl V. Hilliard 
 Couch V. Steel 
 Countess of Durham, The 
 Countess of Harcourt, The 
 Courtney, The 
 Covell V. Hitchcock 
 Covin V. Hill 
 Covington v. Roberts 
 Cowas-jee v. Thompson 
 176 Cowell V. Simpson 
 492, 500 ! Cowing v. Snow 
 
 353, 
 134, 
 
 330 Cox V. Murray 
 
 Columbian Ins. Co. v. Ashby 291, 292, 
 
 31.3, 316, 329 
 
 V. Catlett 166 
 
 Columbine, The 194, 199 
 
 Columbus, The (3 Wm. Rob.) 206, 210 
 
 (Abbott, Adm.) 172, 192, 
 
 201, 206 
 
 Comet, The 68 
 
 Commerce, The ' 196, 202 
 
 Commissioners of Pilotage v. Low 488 
 
 Commonwealth v. Ricketson 481 
 
 Comstock V. Smith 93 
 
 Conard v. Atlantic Ins. Co. 59, 80, 81, 
 
 119, 360, 411, 419, 425, 437 
 
 Conner v. Smythe 264 
 
 Constable v. Cloberie 271 
 
 Constancia, Th« 302, 303, 429, 430, 431, 
 
 437, 439, 440 
 
 Constantia, The 371,372 
 
 Constantia Harlcsscn, The 
 
 Constitution, Sch. v. Woodwortli 
 
 Converse i'. Symraes 
 
 Conway v. Forbes 
 
 V. Gray 
 
 Conyers v. Ennis 339, 342, 370 
 
 Cook V. Com. Ins. Co. 434 
 
 V. Gourdin 176 
 
 V. Jennings 1C6, 168, 246 
 
 Cooke V. Wilson 214 
 
 Cooley I'. Board of "Wardens, &c. 480 
 
 Coolidge r. N. Y. Firem. Ins. Co 
 
 Coombes v. Mansfield 42, 43 
 
 Cooper V. South • 41 
 
 Coosa, Bark 277, 278 
 
 Cope V. Cordova 153, 157 
 
 V. Dodd 223, 224 
 
 Copenhagen, The '298 
 
 177 I V. Rcid 
 
 453 V. Troy 
 
 214, 220 I Coxe v. Harden 
 
 135 I Crabtree v. Clark 
 184, 270 j Craig v. U. S. Ins. Co. 
 222, 255 j Cram v. Aiken 
 
 143 Crammer v. The Fair American 
 41, 43, 57, 115 Crandall, Ex parte 
 150, 175 j Cranston v. Marshall 
 277, 278, 279«! Craven v. Ryder 
 
 115 
 119 
 118 
 472 
 454, 463 
 204 
 443 
 460 
 373 
 365 
 ■ 305 
 349 
 145 
 125 
 489 
 91 
 15 
 
 142, 212, 366 
 247 
 225 
 
 186,307, 309 
 4G8 
 472 
 130 
 
 134, 350 
 Crawford v. The "William Penn 412, 414, 
 
 429 
 
 Crawshay V. Eades 351 
 
 V. Homfray 145 
 
 V. Maule 84 
 
 Creery D. Holly 186 
 
 Creole, The • 207 
 
 Crockett u. Dodge 316 
 
 V. Newton 203 
 
 Croockewit v. Fletcher 230, 271 
 
 Crooke v. Slack 495 
 
 Crosby v. Fitch 123, 175, 180 
 
 Crow V. Falk 282 
 
 Crozier v. Smith 149, 259 
 
 Crusader, The 412, 444, 445, 450, 477 
 
 Cuibertson r. Shaw 194, 201 
 
 Cucullu V. La. Ins. Co. 68 
 
 Cuming v. Brown 362 
 
 Cummings v. Arnold 273 
 
 227 { Cummins v. Spruance 187, 202, 204 
 
 107 j Cunningham v. Hall 69, 498 
 
 105 ! Cupisino v. Perez 416, 421 
 
 275 ' Curling r. Long 128,218 
 
 275 } Curtis v. Hubbard 93 
 
 V. Perry 43, 57 
 
 Cuthbert v. Gumming 244 
 
 Cutler V. Rae 146, 292, 333, 334 
 
 r. Thurlo 112,115 
 
 V. Winsor 112, 229, 236, 237 
 
 Cutter V. Powell 446 
 
 40 j Cynosure, The 196 
 
 Cynthia, Brig (1 Pet. Adm.) 242 
 
 The (20 Eng. L. & Eq.) 387, 
 
 418, 429 
 
 Cvnthia Ann, The 207 
 
 Cypress, The . 447, 451
 
 INDEX TO CASES CITED. 
 
 XXV 
 
 D. 
 
 Da Costa v. Edmunds 
 
 
 
 309 
 
 V. Newnham 
 
 
 295, 
 
 300 
 
 Dafter v. Cresswell 
 
 
 
 448 
 
 Dao-lish V. Davidson 
 
 
 
 332 
 
 Dale V. Hall 
 
 
 
 132 
 
 Dalzell V. Steamer Saxon 
 
 
 
 218 
 
 Dante, The 
 
 
 409, 
 
 422 
 
 Darby v. Baines 
 
 
 
 98 
 
 V. Steamboat Inda 
 
 
 
 109 
 
 Daubicny v. Duval 
 
 
 
 363 
 
 David^Pratt, Tiie 
 
 
 447, 
 
 467 
 
 David V. Eloi 
 
 
 
 89 
 
 Davidson r. Cooper 
 
 
 
 230 
 
 V. Graham 
 
 
 178, 
 
 179 
 
 V. Gwynne 
 
 
 219, 
 
 270 
 
 Davics V. Mann 
 
 
 188, 
 
 192 
 
 Davis V. Child 
 
 117 
 
 489, 
 
 492 
 
 V. Garrett 
 
 
 
 123 
 
 V. James 
 
 
 
 213 
 
 V. Johnston 
 
 
 
 88 
 
 V. Marshall 
 
 
 
 388 
 
 V. A New Brig 
 
 
 116, 
 
 499 
 
 Dawes v. Cope 
 
 
 
 360 
 
 V. Peck 
 
 
 142, 
 
 213 
 
 Dawn, The 6G, 
 
 4G0, 
 
 461, 
 
 476 
 
 Day v. Noble 
 
 
 
 434 
 
 Dean v. Angus 
 
 
 394, 
 
 395 
 
 V. Hogg 
 
 
 
 233 
 
 V. M'Ghie 
 
 112 
 
 113, 
 
 226 
 
 r. liitter 
 
 
 109, 
 
 247 
 
 D'Aquila t-. Lambert 
 
 
 
 338 
 
 Debrecsia, The 
 
 
 
 477 
 
 De Cock, The 
 
 
 189, 
 
 206 
 
 Deffell r. Brocklebank 
 
 
 
 271 
 
 Delaware, Barque, v. Steamer Os 
 
 prey 
 
 193 
 
 Del Col V. Arnold 
 
 
 
 393 
 
 De JNIott V. Laraway 
 
 
 
 176 
 
 Dcnison v. Seymour 
 
 
 
 482 
 
 Denton v. Great Northern E 
 
 .Co 
 
 
 131 
 
 Depau V. Ocean Ins. Co. 
 
 
 
 333 
 
 De Hotlischild v. Royal Mail S. P 
 
 .Co. 
 
 179 
 
 Descadillas r. Harris 
 
 
 93, 
 
 408 
 
 De Silvale v. Kendall 
 
 
 
 224 
 
 Detouchcs v. Peck 
 
 
 
 223 
 
 Dc Vaux V. Salvador 
 
 
 189, 
 
 295 
 
 Dewell r. Moxon 
 
 
 
 388 
 
 Dewitt i\ Sch. St. Lawrence 
 
 
 106 
 
 497 
 
 De Wolf V. Harris .'i 
 
 7, 5 
 
 3, 80 
 
 112 
 
 V. N. Y. F. Ins. Cc 
 
 . 
 
 
 213 
 
 Dexter v. Bark Eichmond 
 
 
 
 480 
 
 Diana, The 227, 
 
 483 
 
 485 
 
 486 
 
 Dias V. The Privateer Eeven 
 
 SC 
 
 392, 
 
 393, 
 394 
 
 Dickcrson v. Scelye 
 
 
 134 
 
 137 
 
 Dickinson v. Haslctt 
 
 
 
 270 
 
 Dike c. Pro])eller St. Joseph 
 
 
 333 
 
 334 
 
 Dill l: The Bertram 
 
 
 132 
 
 183 
 
 Dispatch, The 
 
 
 
 279 
 
 Dixon I'. Baldwen 
 
 
 354 
 
 366 
 
 V. The Cyrus 452, 
 
 454, 
 
 455, 
 
 469, 
 471 
 
 Dixon V. Ewart 
 V. Yates 
 Doane i\ Keating 
 Dobree v. Schroder 
 Dohson V. Droop 
 
 V. Lyall 
 
 V. Wilson 
 Dockwray v. Dickenson 
 Doddington v. Hallet 
 Dodge V. Bartol 
 
 V. Union Ins. Co. 
 Dodson V. Wentworth 
 Doe V. Monson 
 Domett V. Beckford 
 Donaldson v. Fuller 
 Donath r. Broomhead ; 
 Dorr V. N. E. Mar. Ins. Co. 
 V. N. J. Steam Nav. Co 
 
 43 
 
 358, 371 
 
 307, 334 
 
 397, 398 
 
 264 
 
 425, 428, 440 
 
 302, 334 
 
 103 
 
 82, 83, 96, 102 
 
 307, 309 
 
 435 
 
 353 
 
 500 
 
 222 
 
 481 
 
 342,351,3.52,376 
 
 166 
 
 177, 178, 
 
 179, 183 
 
 66 
 
 185, 186 
 
 219, 220 
 
 V. Pacific Ins. Co 
 Dorsey v. Smith 
 Dougal V. Kemblc 
 Douglas 1-. Moody 263, 299, 302, 320, 321, 
 
 327, 435 
 Douglass V. Erye 444, 445 
 
 Dowell V. Gen. Steam Nav. Co. 188, 195 
 Dows V. Cobb ,139, 214 
 
 V. Greene 134 
 
 Dowthorpe, The 429 
 
 Draco, The 119, 120, 407, 409, 410, 411, 
 
 429, 433 
 
 Drew V. Bird 221 
 
 V. Steamboat Chesapeake 192, 211 
 
 Drinkwater i'. Brig Spartan 125, 147, 234, 
 
 251, 390 
 Druid, The 124, 392, 393 
 
 Drummond v. Winslow 
 Drysdale v. Sch. Eangcr 
 Duchesse De Brabant, The 
 Duchess of Kent, The 
 Dudley v. Steamboat Superior 
 
 224 
 
 468, 469 
 
 399 
 
 468, 469 
 
 46, 389, 
 
 492, 493, 499 
 
 115 
 
 179 
 
 263 
 
 242 
 
 188, 191, 392 
 
 410, 419, 429 
 
 484 
 
 Duff i\ Bayard 
 V. Build 
 V. Lawrence 
 Duffie V. Hayes 
 Duggins V. Watson 18 
 Duke of Bedford, The 
 
 Manchester, The 
 
 St. Albans i'. Shore 268 
 
 Sussex, The 207, 209, 485 
 
 Dunbar r. Smecthwaitc 270 
 
 Duncan v. Benson 418, 438 
 
 V. M'Calmont 440 
 
 Dundee, The 71, 72, 397, 402 
 
 Dunham v. Com. Ii}s. Co. 297 
 
 Dunlop V. Lambert 213 
 
 Dunn V. Comstock 446 
 
 V. McComb 188, 201 
 
 Dunnage v. Joliffe 170 
 
 Dunseth v. Wade 124, 150, 175, 179, 218 
 
 Dupout de Nemours v. Vance 239, 313, 
 
 330, 333, 334 
 
 VOL. I.
 
 XXVI 
 
 INDEX TO CASES CITED. 
 
 Dusar v. IMiirp^atroyd 
 Diitton V. Solomonsoii 
 l)wi};lit ('. Brewster 
 Dyer, Ex parte 
 V. Lewis 
 
 391 
 
 142, 21. '5 
 
 177 
 
 232 
 
 69, 70 
 
 Eagle, The 
 
 
 
 278, 
 
 451 
 
 Eaglcchildes case 
 
 
 
 
 19 
 
 Eakcn v. -Thom 
 
 
 
 
 454 
 
 Eakiiis V. East India Co. 
 
 
 
 59 
 
 Ealinj; Grove, The 
 
 
 
 
 468 
 
 Eastern Star, The 
 
 
 
 
 93 
 
 Eaton V. Jaques 
 
 
 
 
 114 
 
 Ehcnezer, The 
 
 
 
 187, 
 
 206 
 
 Eckford v. Wood 
 
 
 
 
 331 
 
 Eden, The 
 
 
 
 
 485 
 
 Edie V. East India Co. 
 
 
 
 
 21 
 
 Edniond v. Caldwell 
 
 
 
 
 93 
 
 Edwards v. Brewer 
 
 340, 
 
 342, 
 
 351, 
 
 354 
 
 V. Child 
 
 
 
 
 446 
 
 V. Havell 
 
 
 
 
 381 
 
 V. Steamer R. 
 
 F. Stockton 
 
 207 
 
 V. Sherratt 
 
 
 
 
 177 
 
 V. Todd 
 
 
 150, 
 
 172, 
 
 207 
 
 Elcphanta, The 
 
 
 410, 
 
 421, 
 
 422 
 
 Eli Whitney, The 
 
 
 
 230 
 
 238 
 
 Eliza, The 
 
 429, 
 
 430, 
 
 443, 
 
 471 
 
 Eliza & Abhv, The 
 
 
 
 
 187 
 
 Elizabeth Frith, The 
 
 449, 
 
 454, 
 
 463 
 
 474 
 
 Elizabeth, Ship, v. ll'ic 
 
 ;ers 
 
 453, 
 
 454, 
 
 472, 
 476 
 
 Ellershaw v. Mngniac 
 
 
 138, 
 
 141 
 
 349 
 
 Elliot V. Von Glehn 
 
 
 
 270 
 
 272 
 
 Elliott V. Rossell 
 
 
 175, 
 
 180 
 
 384 
 
 Ellis V. Hunt 
 
 
 354, 
 
 355, 
 
 373 
 
 V. Turner 
 
 
 
 
 177 
 
 V. Willard 
 
 
 136, 
 
 143 
 
 160 
 
 Elsee 1-. Gatward 
 
 
 
 
 177 
 
 Elsworth V. Woolmore 
 
 
 
 
 447 
 
 Elwell V. Martin 
 
 
 
 
 464 
 
 Ely V. Peck 
 
 
 
 
 443 
 
 Emancipation, The 
 
 
 407 
 
 408 
 
 420 
 
 Emblem, The 
 
 
 
 
 324 
 
 Emerson v. Howland 
 
 460 
 
 461 
 
 462 
 
 463 
 
 r. Proceeds of The 
 
 Pan 
 
 dora 
 
 490 
 
 Emery v. Herscy 
 
 
 
 
 434 
 
 Emily, The Brig 
 
 
 192, 
 
 195 
 
 196 
 
 Englaud, The 
 
 
 
 
 187 
 
 Enterprise, The 
 
 
 
 210, 
 
 451 
 
 Eolides, The 
 
 
 201, 
 
 205, 
 
 486 
 
 Eppes r. Tucker 
 
 
 
 
 292 
 
 Escopiniche v. Stewart 
 
 
 
 
 169 
 
 Esposito V. Bowdcn 
 
 
 
 
 274 
 
 Etna, Canal-boat, v. Tfcat 
 
 
 
 498 
 
 Eureka, Steamboat, v. 
 
 Noel 
 
 
 
 108 
 
 Europa, The 
 
 
 187, 
 
 198, 
 
 199 
 
 Evans v. Forster 
 
 
 
 
 262 
 
 i\ Ilutton 
 
 
 
 
 152 
 
 r. Marlett 
 
 
 138, 
 
 142, 
 
 359 
 
 V. ISiichol 
 
 
 
 134, 
 
 341 
 
 Evans v. Potter 363 
 
 V. Sonic 177 
 
 V. Truman 365 
 
 V. Williams 419 
 
 Everett v. Saltus 162, 213, 360 
 
 Everleigh v. Sylvester 176, 184 
 
 Ewart V. Kerr"(l llico) 170, 172 
 
 (2 M'Mullan) 170,172 
 
 V. Street 1.50 
 
 Ewbank v. Nutting 435 
 
 Exchange, The 448, 449, 451 
 
 Exeter, The 430, 439, 440, 449, 462 
 
 Express, The 209 
 
 Fairchild v. Slocum 
 
 Faith V. East India Co. 
 
 Falcon, The 
 
 Fa ma, The 
 
 Fanny, The 
 
 Fanny & Elmira, The 
 
 Farmer i: Davies 
 
 179 
 
 125, 241, 252 
 
 68 
 
 485 
 
 495 
 
 60, 66 
 
 388 
 
 Farmers & Mechanics Bank v. Cham- 
 
 plain Transp. Co. 
 Farr v. Smith 
 Farrar v. Beswick 
 Farrel v. M'Clea 
 Farrcll v. French 
 Fashion, Steamer 
 Fasliion v. Wards 
 Faulkner v. Wright 
 Favourite, The 
 Feise v. Wray 
 Fennings i\ Ld. Grcnvillc 
 
 156, 177, 178 
 
 85 
 
 85 
 
 388 
 
 463 
 
 502 
 
 187, 192, 200 
 
 132, 184 
 
 449 
 
 341, 342, 366 
 
 85 
 
 Fenton v. Dublin Steam Packet Co. 234 
 V. Pearson 370 
 
 Ferax, The 498, 501 
 
 Ferguson v. Cappeau 175 
 
 Fernandez i\ Silva 125, 127 
 
 Ferrara v. Barque Talent 453 
 
 Field ;.-. Chase 
 Fielding v. Kymcr 
 Finney i-. Steamboat Fayette 
 Fire Darner, Die 
 
 Fish V. Chapman 176, 177, 178, 1 
 Fisher v. Clisbee 
 
 V. Willing 112, 
 
 Fisk V. Steamboat Forest City 
 
 V. Newton 
 Fitch lu Livingston 
 
 ??. Sutton 
 Fitzsimmons v. Newport Ins. Co. 
 Flad Oven, The 
 Flash, the 
 Fletcher v. Bowsher 
 V. Brad dick 
 V. Heath 
 Flint r. Flemving 
 
 115, 
 
 266 
 363 
 109 
 393 
 181 
 176 
 389 
 ■ 109 
 154 
 58, 195 
 
 90 
 279 
 
 68 
 382 
 
 70 
 
 190, 236 
 
 365 
 
 122 
 
 Flint River Steamboat Co. r. Roberts 106, 
 
 498 
 Flower v. Young 40, 41, 45
 
 INDEX TO CASES CITED. 
 
 xxvn 
 
 Fontaine v. Beers 5fi, 120 
 
 V. Col. Ins. Co. 414, 436 
 
 V. Phoenix Ins. Co. 62 
 
 Forbes v. Brij;- Hannah 1 IS^, 41G 
 
 V. Parsons 4G4 
 
 V. Eice 1G5, 270 
 
 Ford ?'. Sproulc 339 
 
 Forest, The 456, 457, 458 
 
 Forth V. Simpson 127 
 
 Fortitude, The 60, 89, 385, 386, 414, 419, 
 
 421 
 
 Fortitudo, The 433 
 
 Fortuna, The (4 Rob. Adm.) 227 
 
 (5 Kol). Adm.) 278 
 
 (Edw. Adm.) 227 
 
 Forward v. Pittard 150, 177, 181, 182 
 
 Foster v. Frampton 353, 356 
 
 I'. Sch. Miranda 189, 193, 203, 206 
 
 V. U. S. Ins. Co. 99 
 
 Fotherjiill r. Walton 268, 271 
 
 Fowler v. Ludwii; 93 
 
 V. M'Ta-!U'art 347, 349 
 
 Fox V. State of Ohio 58 
 
 Fragano 1-. Long 142,213 
 
 Frances, The (8 Cranch) 214 
 
 (9 Craneh) 214 
 
 Francis v. Ocean Ins. Co. 68 
 
 Franklin v. Hosier 491 
 
 V. Pendleton 494 
 
 Ins. Co. V. Lord 437 
 
 Frascr r. Hopkins 41 
 
 Frail Ilsahe, The 278 
 
 Frazer v. Ilatton 448 
 
 V. MnYsh 1 1 1 
 
 Frederick, The 477 
 
 Frederick Molke, The 278 
 
 Freeman v. Baker 69, 130, 445, 456, 457, 
 
 470, 472 
 
 f. Birch 213 
 
 Sch., V. Buckingham 124, 132, 
 
 135 
 
 V. East India Co. 435 
 
 V. Tavior 123 
 
 V. Walker 468 
 
 French v. Backiiouse 99 
 
 V. Price 82, 93 
 
 Frctz V. Bull 200 
 
 Friend v. Woods 184 
 
 Friends, The 202 
 
 Frink v. King 109 
 
 Frith r. Barker 149,217 
 
 Frontine r. Frost 476 
 
 Frost V. Oliver 381 
 
 Frothingham v. Jenkins 144 
 
 Fuller V. Bradley 176, 258 
 
 V. Colby 464 
 
 Furiong V. Bartlctt 85 
 
 Furncll v. Thomas 264 
 
 Furniss v. Brig Magoun 419, 422, 428, 
 
 430, 439 
 
 Gaither r. Barnet 
 
 178 
 
 Gale r. Laurie 
 
 73, 397 
 
 Gallatin v. The Pilot 
 
 89 
 
 Gallop V. Newman 
 
 59 
 
 Galloway r. Hughes 
 
 155 
 
 V. Jackson 
 
 271 
 
 Gardiner v. Smith 
 
 225 
 
 Gardner v. Bibbins 
 
 463, 467 
 
 V. Cazenovc 
 
 226 
 
 f. Cleveland 
 
 83 
 
 r. Howland 
 
 59, 80 
 
 V. Ship New Jersey 389,390,453 
 
 r. Salvador 61 
 
 V. Smalhvood 185, 187 
 
 Garnctt v. Willan _ 179 
 
 Garnhan i-. Bennet 384 
 
 Garrison v. McAllister 108 
 
 V. Memphis Ins. Co. 183 
 
 Gatliffe v. Bourne 154, 183 
 
 Gauntlet, The tl 2, 423 
 
 Gazelle, The 195, 198, 199, 204, 205 
 
 Gazzani i-. Cincinnati Ins. Co. 296 
 
 General Brady, Steamboat, v. Buckley 498 
 
 Smith, The 116, 491, 492, 502 
 
 Steam Nav. Co. v. Gillou 203 
 
 V. Ihum 188 
 
 V. Tonkin 188, 
 
 189 
 
 Worth, Steamboat, v. Hopkins 107 
 
 Genesee Chief, Propeller, v. Fitzhugh 199 
 
 Gentleman, Bark 136, 240, 261 
 
 George, The (5 Notes of Cases) 195 
 
 (4 Notes of Cases, 9 
 
 Jur., 2 W. Bob.) 201,207, 
 
 483, 485 
 
 Brig (1 Sumner) 449, 456, 458 
 
 George Home, The 443 
 
 George r. Skcates 106, 498 
 
 Geraldes v. Donison 225 
 
 Germain v. Steam Tug Indiana 107 
 
 Gcrrish v. Johnson 481 
 
 Gibbens v. Buisson 262, 266 
 
 Gibbon r. Mendez 259 
 
 V. Pavnton 178 
 
 Gibbons v. Ogdcn 479, 480 
 
 Gibbsf. Gray 159,164 
 
 V. Potter 405 
 
 r. Sch. Texas 414,418 
 
 V. The Two Friends 393 
 
 Gibson v. Carruthers 340, 342 
 
 r. Culver 156 
 
 V. Inso 389 
 
 V. Phil. Ins. Co. 422 
 
 V. Sturge 150, 170, 172 
 
 Giddings, Ex parte 463 
 
 Gifford V. Kolloch 443, 444, 445, 473 
 
 Giles V. Brig Cvnthia 218, 223 
 
 V. Eagle Ins. Co. 296, 298, 302 
 
 I'. Vigoreux 253 
 
 Gilkison »•. Middleton 242, 252 
 
 Gillan v. Simpkia 223, 224, 228
 
 XXVlll 
 
 INDEX TO CASES CITED. 
 
 Gillcspy V. Coutts 80 
 
 Gillespie v. Tiionipson 170 
 
 Gillctt V. Ellis 307, 321, 327, 330, 435 
 
 Gilraore v. Bussey 
 
 
 93- 
 
 V. Carman 
 
 175, 
 
 179, 183 
 
 Gipsey Kinjj, The 
 
 209, 
 
 483, 485 
 
 Girard v. Ware 
 
 
 299 
 
 Girolamo, The 
 
 201, 
 
 483, 486 
 
 Gladiator, The 
 
 
 486 
 
 Gladstone v. Birlcy 
 
 
 124 
 
 Glalioim V. Hays 131, 
 
 2C0, 
 
 268, 271 
 
 Glascott r. Lang 
 
 
 440 
 
 Glasgow, The 
 
 
 60 
 
 Gledstuncs v. Allen 
 
 
 242, 252 
 
 Gleim r. Steamboat Belmont 
 
 497 
 
 Gloucester, The 
 
 
 463 
 
 Glover v. AiiPtin 
 
 
 77, 82 
 
 r, Diifour 
 
 
 173, 185 
 
 Goddard v. Bulow 
 
 
 282 
 
 r. Bark Tangier 
 
 
 155, 183 
 
 Godts r. I\osc 
 
 
 345 
 
 Goff V. Clinkard 
 
 
 132, 175 
 
 Gold Hunter, The 
 
 
 124, 439 
 
 Golden i\ JManning 
 
 
 153 
 
 Gondolier, The 
 
 
 449, 468 
 
 Good V. Blcwitt 
 
 
 84, 103 
 
 Goodonow v. Tyler 
 
 
 93 
 
 Goodhart r. Lowe 
 
 
 339 
 
 Goodridge v. Lord 
 
 
 239, 390 
 
 r. Peahody 
 
 
 447 
 
 Goodsill V. Brig St. Louis 
 
 
 109 
 
 Goold V. Chapin 
 
 
 157 
 
 Gordon v. Buchanan 17G, 
 
 179, 
 
 180, 181, 
 184 
 
 V. East India Co. 
 
 
 57, 80 
 
 V. Little 
 
 
 178, 179 
 
 V. Mass. F. & M. Ins. Cc 
 
 . 60, 61, 
 
 
 
 66 
 
 Gore V. Gardiner 
 
 
 423 
 
 Goslee v. Shutc 
 
 
 199, 211 
 
 Gosling V. Birnic 
 
 
 134, 346 
 
 V. Higgins 
 
 
 152 
 
 Goss V. Nugent 
 
 
 273 
 
 V. Quinton 
 
 
 72 
 
 Gould V. Hill 
 
 
 178, 183 
 
 V. Oliver 186 
 
 SOS, 
 
 309, 310 
 
 r. Stanton 
 
 86 
 
 , 98, 100 
 
 Governor, The 
 
 
 197 
 
 Govett r. Radnidge 
 
 
 104, 105 
 
 Gracie v. Palmer 125 
 
 127 
 
 146, 241 
 
 Grafton, The 
 
 
 124, 156 
 
 Graham r. Davis 
 
 150, 
 
 178, 179 
 
 V. Dvster 
 
 
 363 
 
 Grand Turk, The 
 
 
 389 
 
 Granon v. Ilartshorne 
 
 446, 
 
 447, 476 
 
 Grant ;•. M'Laehlin 
 
 
 66, 68 
 
 V. Norway 
 
 
 135 
 
 V. "Wood 
 
 
 222, 256 
 
 Gratitudine, The 302, 303, 312, 412, 429, 
 
 435, 436, 437 
 
 Graves v. Saweer 82, 85 
 
 Gray v. Wain 166, 167, 292, 314, 320, 
 
 321, 327, 328, 329 
 
 Greeley v. Watcrhousc 119, 407, 410, 411, 
 
 425 
 Greely v. Smith 409, 410, 411, 420, 421, 
 
 432, 433 
 
 V. Tremont Ins. Co. 289, 296 
 
 Green v. Briggs 82, 84 
 
 V. Haythorne 344 
 
 Greenway v. Fisher 363 
 
 Greenwood v. Cooper 132 
 
 Grevor v. The Black Warrior 405 
 
 Grieff v. Switzer 1 50 
 
 Griffith V. Ingledew 214 
 
 Griggs V. Austin 223, 227 
 
 Griswold v. N. Y. Ins. Co. 160, 215 
 
 V. Sharpe 193, 202, 483, 487 
 
 Grout V. Hill ' 367, 369 
 
 Grove v. Brien 134, 220 
 
 Groves v. Slaughter 58 
 
 Grozier v. Atwood 477 
 
 Guillot I'. Dossat 85 
 
 Gurney v. Belncnd 359, 360, 362, 365 
 
 V. Crockett 490 
 
 Gnstavia, The 381, 489, 490, 492 
 
 Gwillini V. Daniell 238 
 
 Gwynne, Ex parte • 340 
 
 H. 
 
 Hacker v. Young 41 
 
 Hackwood v. Lvall 41, 116 
 
 Hadlcy v. Clarke 152, 219, 267, 275 
 
 Hagedorn i\ Oliverson 99 
 
 Haille v. Smith 141, 341, 360 
 
 Hain ?•. Steamboat North America 193 
 
 Halderman v. Beckwith 195, 205 
 
 Hale V. N. J. Steam Nav. Co. 175, 177, 
 
 178, 182, 183 
 
 Halkett, Ex parte 53, 389 
 
 Hall V. The Buffalo 193 
 
 V. Cazcnove 272 
 
 V. Ship Chieftain 143 
 
 V. Franklin Ins. Co. 61, 62, 64 
 
 1-. Gurney 81 
 
 I'. Jansen 298 
 
 V. Ocean Ins. Co. 72, 289 
 
 Hallet v. Col. Ins. Co. 235 
 
 Hallett V. Bousfield 330 
 
 V. Wigram 295, 438 
 
 Hal werson r. Cole 148,167 
 
 Ham r. Steamboat Hamburg 107 
 
 Hamilton v. Steamboat Ironton 109 
 
 V. Warfield 259 
 
 Hammond v. Anderson 343, 345, 357 
 
 r. Blake 481 
 
 r. McClures 150 
 
 V. M'Crio 145 
 
 r. Rogers 483, 484, 485 
 
 Hampton v. Brig'^ Thaddeus 186, 307, 309 
 
 Hancox v. Dunning 494 
 
 Hand v. Baynes 123 
 
 Handaysyde v. Wilson 188, 192, 196, 203 
 
 Hannay v. Eve 435
 
 INDEX TO CASES CITED. 
 
 XXIX 
 
 Hanse v. New Orleans Mar. & F. Ins. 
 
 Co. 296 
 
 Hanson v. Mej'cr 257, 344, .'i58 
 
 Harden v. Gordon 441, 443, 445, 440, 447, 
 
 45G, 457, 458 
 
 Hardinj,^ r. Foxcroft 82, 83 
 
 ;;. Steamboat Maverick 191 
 
 Hardy v. Si)roiilc 
 
 Harkness v. CImreh 
 
 Harman v. Anderson 
 
 V. Clarke 
 
 V. Fisliar 
 
 V. (Randolph 
 
 V. JNlant 
 
 V. Vanhatton 
 
 Harmer v. Jiell 
 
 Harmonic, The 
 
 Iliirmuiiy v. IJiiigham 
 
 Harper c. Tlie New Brig 
 
 Harratt v. Wise 
 
 Harries v. Edmonds 
 
 Harriet, Ship (Olcott, Adm.) 
 
 Harriett, The (1 \V. Rob.) 
 
 Harrington v. Lyles 
 
 V. M'Shane 
 Harris v. Carter 
 
 V. Drcesman 
 V. Packwood 
 V. Watson 
 Hamson, JOx jKirte 
 
 V. Sch. Eclipse 
 V. Jackson 
 V. Si)aetli 
 V. Wright 
 Harrod v. Lewis 
 Hart I'. Allen 
 
 V. Fitzgerald 
 V. Brig Otis 
 Hartley v. Ponsonby 
 Harvest, Ship 
 Harvey, The 
 Haskell v. The Kennedy 
 Hassam v. St. Louis Bcrpet. Ins. Co. 
 
 294, 439 
 Hastings v. The llnppy Return 45C, 457, 
 
 458, 476 
 V. Pepper 135, 150, 173, 175, 185 
 Haswell v. Hunt 373 
 
 Hatch V. Smith 56 
 
 Hathaway r. Russell 104 
 
 Ilathorn v. Curtis 388 
 
 Ilause V. .Judson 339, 354, 373 
 
 Havelock v. Geddcs 219, 259, 269, 270 
 V. Rockwood 68 
 
 Ilawcs V. Bark James Smith • 496 
 
 V. Watson 134, 346 
 
 Hawkins v. Cardy 21 
 
 V. Dutchess & Orange Steam- 
 boat Co. 199,203 
 Hay V. Fairbairn 43, 80, 112 
 V. Lc Neve 189, 206 
 Haynian v. Molton GO, 62 
 Hays V. Steamboat Columbus 497 
 
 87, 89, 90 
 
 
 156 
 
 344 
 
 345 
 
 219 
 
 265 
 
 
 368 
 
 219 
 
 263 
 
 219 
 
 265 
 
 
 409 
 
 146 
 
 207 
 
 
 491 
 
 
 178 
 
 501 
 
 502 
 
 
 277 
 
 
 247 
 
 
 499 
 
 
 196 
 
 176 
 
 240 
 
 175, 182, 
 
 434 
 
 
 448 
 
 
 261 
 
 177, 
 
 178 
 
 
 448 
 
 82, 96, 
 
 102 
 
 
 388 
 
 
 231 
 
 
 222 
 
 
 283 
 
 
 300 
 
 175, 
 
 270 
 
 103, 
 
 104 
 
 
 470 
 
 
 448 
 
 
 499 
 
 
 450 
 
 
 189 
 
 Hays V. Mouille 
 Hayward v. JMiddleton 
 Hazard v. Israel 
 Heart of Oak, The 
 Ileathorn v. Darling 
 Hebe, The 
 
 Hcckscher v. McCrca 
 Heinecke v. Earle 
 Helena, The 
 Hclme V. Smith 
 Hemphill v. Chonie 
 Henderson r. Mayhew 
 Hennen v. IMonro 
 Henop V. Tucker 
 Hcnrick & Maria, The 
 Plenry, The 
 Henshaw r. Mar. Ins. Co. 
 
 V. Rollins 
 Herbert v. Hallctt 
 Heridia v. Ayres 
 
 342, 372 
 
 222 
 
 94 
 
 428, 432, 440 
 
 418 
 
 205, 206, 419 
 
 247, 248 
 
 368 
 
 56, 65 
 
 82, 99, 100 
 
 157 
 
 92, 115 
 
 298 
 
 460 
 
 68 
 
 61, 62, 137 
 
 296 
 
 381 
 
 160 
 
 480, 487 
 
 Hero, The 423, 426, 428, 429, 431 
 
 Herrin v. Eaton 85 
 
 Herron v. Sch. Peggy 474, 475, 476 
 
 Hersey, The 423, 429 
 
 Hesketli v. Stevens 115 
 
 Hcwes V. Doddridge 363 
 
 Hewett V. Buck 98, 124, 388 
 
 Hewitt V. Sturdevant 81, 83, 96 
 Heyliger v. N. Y. Firemen Ins. Co. 
 
 297, 311, .329 
 
 Hibbcrt v. Carter 138, 359 
 
 V. Rolleston 57 
 
 Hicks V. Palington 286, 299 
 
 V. Walker 449 
 
 Higgins V. Packard 92 
 
 Hilarity, The 381, 430 
 
 Hill I'.'Andrus 399 
 
 V. The Golden Gate 231, 493 
 
 V. Idle 264 
 
 Hills V. Sugbruc 242 
 
 Hindman v. Shaw 454 
 
 llinsdell v. Weed 149, 172, 220 
 
 Ilinton ('. Law 83 
 
 Hiram, The 167, 225 
 
 Hitchcock V. Covill 373 
 
 Hoarc i\ Cazenove 14 
 
 V. Clement 491 
 
 Hobart v. Drogan 479, 480 
 
 V. Norton 123 
 
 Ilodges r. Steward 20 
 
 Hodgkinson r. Fernio 190, 236 
 
 Hodgson i\ Butts 112, 390 
 
 r. Loy 340, 342, 348 
 
 Hoffman v. Noble 363 
 
 Ilofinung, The 219, 278, 281 
 
 lloghton. The 443, 447 
 
 Holdcrness ?-. Shackcls 83, 96, 100 
 
 Iloleman v. Steamboat P. H. White 106 
 
 Hollingsworth v. Najiier 344 
 
 Hollister v. Nowlen 177, 178 
 
 Holloway v. Steamboat Western Belle 108 
 
 llolman r. Jolinsou 225 
 
 Holmes V. Hutchinson 458
 
 INDEX TO CASES CITED. 
 
 Holmes V. PavcnstccU 
 
 ?.'. Sprowl 
 Hoist I'. Pownal 
 Holton V. Smith 
 Homes V. Crane 
 IIooc I'. (Jroverman 
 
 i\ Mason 
 Hoop, The 
 Hooper v. Lusby 
 
 V. The Sam Slick 
 
 Hope, The 
 Hopkins v. Forsyth 
 Hopner i\ Apjilehy 
 
 125, 233, 251 
 
 113 
 
 356, 374, 37G 
 
 363 
 
 118 
 
 233 
 
 166 
 
 299 
 
 99 
 
 496, 500, 501, 
 
 502 
 
 203 
 
 82, 83, 390 
 
 68 
 
 Horc V. Steamboat Belle of Attakapas 108 
 
 Horn r. Bensusan 262 
 
 V. Gilpin 86 
 
 Horncastle v. Fan-an 145 
 
 Horsley v. Rush 231 
 
 Hoskins v. Pickersgill 72 
 
 V. Slayton 381 
 
 Houghton, Ex parte 43 
 
 House V. Sch. Lexington 154 
 
 Houston V. Darling 112, 236 
 
 Howard i;. Cobb 131,139 
 
 V. Macondray 147, 254, 273, 363 
 
 V. Shepherd 139 
 
 V. Tucker 252 
 
 Ship, I'. AVissman 136 
 
 Howatt V. Davis 376 
 
 Howland v. Brig Lavinia 218, 223, 227 
 
 Hoyt V. Wildfire 454, 462, 463 
 
 Hozey r. Buchanan 44, 56, 57 
 
 Hubbell i\ Dcnison 501 
 
 Hubbersty v. AVard 135 
 
 Hudson, Steamboat 477 
 
 V. Clementson 263 
 
 V. Gucstier 68 
 
 Hugg V. Augusta Ins. & B. Co. 161, 162, 
 
 163, 216 
 Hughes V. Morris 57 
 
 Hull of a New Ship 499 
 
 Humbcrston, In re 349 
 
 Humplireys v. Brig America 469 
 
 V. Reed 170, 172, 176 
 
 Huntress, The 150, 153, 
 
 Ilurd V. Darling 
 
 Huron, Canal-boat, v. Simmons 
 
 Hurley v. Milward 
 
 Hurry v. Hurry 
 
 V. Ship "jolm & Alice 119, 
 
 V. Union Ins. Co. 
 Hunn V. Bowne 
 Hunt V. Card 
 
 V. Carlisle 
 
 V. Propeller Cleveland 
 V. Haskell 
 t". Mickey 
 V. Morris 
 V. Brig Otis 
 V. Ward 
 Hunter, The 
 
 V. Bcal 
 V. Fry 
 
 329 
 
 340 
 
 480 
 
 481 
 
 151 
 
 165 
 
 481 
 
 183 
 
 474 
 
 354 
 
 408, 420, 423, 428, 432 
 
 346, 355, 375 
 
 237 
 
 r. Gen. Mut. Ins. Co. of N. Y. 324 
 
 v. M'Gown 398 
 
 V. Parker 57, 60 
 
 V. Prinsep 66, 148, 161, 164 
 
 Hunters v. iMoniing Star 183 
 
 V. Mangles 
 Hurst V. Usbornc 238, 
 
 Ilurtige Hane, The 
 Hurtin r. Phoenix Ins. Co. 
 
 V. Union Ins. Co. 
 Hussey i\ Allen 
 
 I'. Christie 
 V. Fields 
 Hutchinson v. Coombs 
 Hutson V. Jordan 
 Hutton V. Bragg 125, 
 
 Hyde v. Stone 
 
 V. Trent & Mersey Nav. Co, 
 V. Willis 
 
 157, 175 
 
 85 
 106 
 310 
 
 119, 231 
 
 417, 419, 
 
 425 
 
 343 
 
 282, 283 
 278 
 301 
 
 166, 168 
 
 91, 384 
 
 389 
 
 477 
 
 461, 463 
 464 
 
 233, 250 
 84, 85 
 
 153, 175 
 247 
 
 Idle V. Royal Exchange Ass. Co. 60, 61 
 
 Ilsley V. Jewett 93 
 u. Stubbs 214,-341,347 
 
 Indiana, The 193, 195 
 
 Inflexible, The 205 
 
 Inga, The 199 
 
 IngersoU r. Van Bokkelin 256 390 
 
 Inglis V. Usherwood 348 
 
 Ingraham v. Albee 471, 472 
 
 V. AVhceler 80 
 
 Inman r. Funk 202,211 
 
 Innis V. Steamer Senator 193 
 
 Ins. Co. of Penn. v. Duval 422 
 
 N. A. V. Jones 300 
 
 Invincible, L' 393 
 
 Ireland r. Thompson 61 
 
 Iron Duke, The 192, 198 
 
 Irving V. Clegg 243 
 
 Isabella, The 447 
 
 Isa!)ella Jacobina, The 276 
 
 Isham V. Greenham 144 
 
 Itinerant, The 187, 206 
 
 Jackson v. Charnock 293, 331 
 
 r. Galloway 263 
 
 V. Nichol 357 
 
 t>? Robinson iS2 
 
 V. Rogers 177 
 
 r. The Julia Smith 124 
 
 V. Vernon 115 
 
 V. AVhite 447 
 
 Jacob, The 429, 431 
 
 JaiTgers c. Binnings 103 
 
 James Watt, The 198 
 
 James i'. Bixby 89, 91, 381, 384, 385
 
 INDEX TO CASES CITED. 
 
 XXXI 
 
 James v. Griffin 340, 354, 35G, 367, 376 
 
 V. Junes 234 
 
 V. Steamboat Pawnee 109 
 
 Jameson v. Drinkald 187, 195, 19G, 199 
 
 V. Ship Kegulus 450 
 
 Jamieson v. Laurie 264, 266 j 
 
 Jane, Tiie 411,412,419,420! 
 
 Jane & Matilda, The 478 I 
 
 Janncy v. Columliian Ins. Co. 66 
 
 Janscn v. The Heinrieh 443, 450, 475, 476 
 
 Jarbee v. Steamboat Daniel Hillman 109 
 
 Jarvis v. Sherwood 464 
 
 Jay V. Almy 467, 477 ; 
 
 Jencks v. Coleman 175, 177 j 
 
 Jenks V. Lewis 464 , 
 
 Jenkyns v. IJrown 349 
 
 V. Usborne 138, 342, 344, 360 
 
 Jennings v. Griffiths 91 
 
 1-. Ins. Co. of Tcnn. 407, 408 
 
 r. Merrill 364 
 
 Jerusalem, The 430, 492 
 
 Jesse V. Kov 446 
 
 Jesson V. Solly 219 
 
 Jeune Eugenie, La 225 
 
 Job V. Langton 326 
 
 Johan & Siegmund, The 86 
 
 Johann Friederieh, The 203 
 
 Johannes Cluistoph, The 389 
 
 John, The 224, 429, 491 
 
 John Brotherick, The 196 
 
 John Buddie, The 187 . 
 
 John Counter, The 209 
 
 John Dunn, The 398 
 
 John Feiirinan, The 431 
 
 John Owen, fcifcamboat, v. Johnson 148 
 
 John Perkins, The 304, 334 
 
 John Walls, Jr., The 501, 502 
 
 Johns r. Simons 380, 414 
 
 Johnson v. Ship Coriolauus 467 
 
 v. Dalton 448 
 
 v. Doubtv . 458 
 
 r. The Eliza 469 
 
 V. Friar 179, 184 
 
 i\ Greaves 406, 437 
 
 I', lluckins 456 
 
 i\ Hunt 76 
 
 V. Miln 237 
 
 V. Steamboat Sandusky 495 
 
 V. Shippen 59, 118, 119, 406, 421 
 
 V. Sims 446 
 
 V. Wingate 381 
 
 Johnston v. Crane 186, 307 
 
 Jones, Ex parte 43 
 
 V. Blum 91 
 
 V. Bradner 134 
 
 V. Steamboat Commerce 106 
 
 V. Hart 94 
 
 V. lloyt 148 
 
 t'. Jones 356, 358 
 
 V. Steamboat Jlon-isett 108 
 
 r. Brig Phoenix 475 
 
 V. Pitcher 40, 41, 176, 179, 181, 
 
 191, 211 
 
 Jones V. Sims 
 
 
 
 214 
 
 V. Vooriiees 
 
 
 
 177 
 
 V. Whyte 
 
 
 
 204 
 
 Jordan r. James 
 
 
 125, 
 
 340 
 
 c. Warren Ins. Co, 
 
 . 159, 
 
 160, 
 
 162, 
 
 
 164, 
 
 167, 
 
 215 
 
 V. Wilkins 
 
 
 
 106 
 
 V. Williams 
 
 463, 
 
 467, 
 
 471 
 
 1-. Young 
 
 
 
 382 
 
 Joseph Cunard, The 
 
 
 489, 
 
 490 
 
 Joseph E. Coffee, The 
 
 
 
 494 
 
 Joscj)h Harvey, The 
 
 
 
 484 
 
 Joshua Barker, The 
 
 
 151, 
 
 ,436 
 
 Joy 1-. Allen 
 
 
 469, 
 
 , 477 
 
 V. Sears 
 
 
 80, 81 
 
 Joyccj V. Williamson 
 
 
 413, 
 
 , 422 
 
 Judith Randolph, The 
 
 
 
 189 
 
 JuH'row Maria Schroeder, 
 
 The 
 
 
 278 
 
 Julia, The 
 
 
 
 225 
 
 Juliana, The 
 
 
 443 
 
 ,446 
 
 Juliet Erskine, The 
 
 
 
 187 
 
 Jumel 1-. IMarine Ins. Co. 
 
 
 
 302 
 
 Jupiter, The 
 
 
 
 196 
 
 Justin c. Ballam 
 
 116, 
 
 ,436, 
 
 ,491 
 
 K. 
 
 Kain v. Old 
 
 Kalamazoo, The 
 
 Kammerhevie Roscnkrantz, The 
 
 Karasan, The 393, 
 
 Kearsarge, The 495, 496, 497, 499, I 
 
 Keating v. Spink 
 
 Kecler v. Fireman's Ins. Co. 479, 
 
 Keene ;•. Li/.ardi 
 
 Keith V. IMurdoeh 
 
 Kell V. Anderson 
 
 Kelley v. ^Merrill 
 
 Kellogg r. Brennan 
 
 Kelly V. Cunningham 188, 
 
 I". Dickinson 
 Kclsey v. Barney 
 Kemp V. Clark 
 
 r. Coughtry 175, 
 
 Kcnnard i\ Barton 
 Kennedy v. Strong 
 Kenncrsley Castle, The 412, 420, 
 
 Kenrig r. Eggleston 
 Kentucky, Steamboat, r. Brooks 107, 
 
 Kern v. Groning 
 
 Kerswill r. Bishop 
 
 Key r. Cotes worth 
 
 Iveyser v. llarbeck 
 
 Kicrlighett. The 
 
 Kicrsage, The 
 
 Kimbal r. Blanc 
 
 Kimball v. Kut. & BM. Railroad 
 
 »■. Tucker 
 Kinder v. Shaw 
 
 113 
 1.38 
 128, 
 
 132.495 
 
 Co. 
 177, 
 
 238, 
 
 69 
 433 
 431 
 403 
 ^)00, 
 502 
 106 
 487 
 395 
 414 
 262 
 384 
 106 
 193 
 381 
 202 
 219 
 4.34 
 192 
 363 
 432 
 178 
 109, 
 497 
 331 
 226 
 349 
 134 
 
 68 
 499 
 
 89 
 
 178 
 259 
 363
 
 xxxu 
 
 INDEX TO CASES CITED. 
 
 King V. Gillett 273 
 
 V. Lenox 379, 392 
 
 V. Lowry 88, 93 
 
 V. P(MTV 413 
 
 V. Shci)liCRl 150, 175, 181 
 
 Kingston By-Sc:i, The 209 
 
 V. Gii-iird 300 
 
 Kinlocli t\ Cniig 341 
 
 Kirk V. Gibbs . 242 
 
 Kirkley v. Hodgson 80 
 
 Kissam v. The Albert 190 
 
 Kleine v. Catara 242, 249 
 
 Knagg V. Goldsmith 474, 475, 476 
 
 Knap V. Brig Eliza and Sarah 468 
 
 Knight r. The Attila 119 
 
 V. Cargo of Bark Salem 241, 283 
 
 V. Parsons 457, 477 
 
 Knowlton i\ Sanford 202 
 
 Knox V. Campbell 82 
 
 V. The Niuctta 123, 124, 134, 137, 
 
 151, 210 
 
 Kohn V. Packard 154 
 
 r. Sch. Renaisance 225 
 
 Kuckein v. Wilson 363 
 
 Kymer v. Suwercropp 341 
 
 Kynter's Case 71 
 
 L. 
 
 Lacey v. Ingram 485 
 
 Lack V. Seward 188 
 
 Lacombe r. Wain 261 
 
 Ladv Anne, The 196, 203 
 
 Lady Campbell, The 468 
 
 Laidler v. 13urlinson 
 Laing v. Colder 
 Lalhmde v. Steamboat C. D 
 Lamb v. Briard 
 V. Durant 
 V. Park man 
 Lamson i'. Westcott 
 Lander r. Clark 125, 
 
 Lane v. Cotton 
 
 V. Crombie 
 
 V. Jackson 
 
 V. Penniman 
 Lanfear v. Sumner 
 Lang r. Holbrook 
 Langdon Cheves, The 
 Langstaff f. Rock 
 Langton v. Ilorton 
 Laiinoy r. Werry 
 Lano V. Neale 
 Larch, The 
 Latham c. Lawrence 
 Lavcroni r. Drury 
 Lavinia, Shin, v. Baixlay 
 Lawler v. Kea(iuick 
 Lawrence v. Mintur^^l85, 
 
 Lawson i\ Carr 
 
 V. Diimlin 
 
 Lawson v. Iliggins 
 Layng v. Stewart 
 Leak v. Isaacson 
 Leavenworth v. Delafield 
 
 r, 
 
 Jr. 
 
 76 
 
 179 
 
 201 
 
 459 
 
 56, 80, 82 
 
 136, 185, 241 
 
 456, 457 
 
 234, 251, 252 
 
 177 
 
 192 
 
 366, 367, 373 
 
 125, 143, 390 
 
 80 
 
 460, 472, 475 
 
 225 
 
 108 
 
 43, 73, 226 
 
 264 
 
 71 
 
 97, 100, 390 
 
 235 
 
 175 
 
 380, 416, 426 
 
 434 
 
 214, 308, 312, 
 
 313 
 
 193 
 
 488 
 
 497, 498 
 
 222 
 
 447 
 
 300,301, 321, 
 
 327, 329 
 
 Lebanon, Steamboat, v. Grevison 497 
 
 Leddo V. Hughes 89, 492, 497, 498 
 
 Lee c. Boardman 93 
 
 V. Grinnell 287, 289, 293, 298, 304, 
 
 314, 316, 317, 321, 327, 328, 329 
 
 Leech v. Baldwin 170, 172 
 
 Leeds v. Wright 354 
 
 Lceming r. Snaith 238 
 
 Leer v. Yates 263 
 
 Leeson v. Holt 177 
 
 Lehigh, Steamboat, v. Knox 108 
 
 Leidcmann v. Shultz 263 
 
 Leland v. The Medora 93, 117, 407, 408, 
 
 420, 430, 433, 492, 500, 502 
 
 Leman v. Gordon 223 
 
 Lengsfield v. Jones 176, 239 
 
 Lenox r. United Ins. Co. 289, 307, 332 
 
 V. The Wiuisimmet Co. 189, 193, 
 
 206 
 
 Leonard v. Hcndrickson 176 
 
 r. Huntington 41, 56, 112 
 
 Leonidas, The 302, 384, 449 
 
 Leopard, The 200 
 
 Le Ray De Chaumont v. Griffin 372 
 
 Leslie v. Wilson 105 
 
 Lewis, Ex jiarte 430, 492 
 
 V. Sch. Cleveland 107 
 
 V. Davis 
 V. Hancock 
 V. Marshall 
 V. Williams 
 
 Leycestcr v. Logan 
 
 License Cases 
 
 Lickbarrow v. Mason 
 
 Liddard v. Lopes. 
 
 Lidgett i\ AVilliams 
 
 Liebart v. Ship Emperor 
 
 Ligo, The 
 
 Ligon r. Orleans Nav. Co 
 
 Limland v. Stephens 
 
 Lincoln i>. Wright 
 
 Lindsay v. Gibbs 
 
 Lineker v. Ayeshford 
 
 Lister v. Baxter 
 I'. Payn 
 
 Litt V. Cowley 
 
 Littlejohn, The 
 
 V. Jones 
 
 Little William, The 
 I Livingston i-. Tremper 
 
 Lloyd V. Howard 
 I V. Loai'ing 
 
 ; Lochiel, The 
 i Lochlibo, The 
 I Locke V. Swan 
 
 Lockwood f. Lashell 
 
 468 
 
 125, 256, 390 
 
 ^ • 218 
 
 297, 332 
 
 397, 399 
 
 58 
 
 135, 138, 338, 340, 
 
 359, 360, 361 
 
 166, 168, 259 
 
 232, 248 
 
 426 
 
 187 
 
 41,45 
 
 471 
 
 45 
 
 43, 226 
 
 1.39 
 
 374, 
 
 Loeschman r. Williams 
 
 380 
 
 43 
 
 375 
 
 ' 463 
 
 176 
 
 279 
 
 106 
 
 361 
 
 84 
 
 415, 417 
 
 187, 201, 483, 484 
 
 259 
 
 197 
 
 354
 
 Railroad 
 
 Co. 
 
 
 
 177 
 
 London racket, Tlie 
 
 
 
 196 
 
 LojH's i\ Winter 
 
 
 
 298 
 
 Lord Cociiranc, The 420 
 
 426 
 
 432 
 
 436 
 
 Lord V. Fer<^ason 
 
 41, 44, 79 
 
 115 
 
 I'. Kimball 
 
 
 
 474 
 
 V. Neptune Ins. Co. 
 
 159, 
 
 161, 
 
 107, 
 
 O 1 "i 
 
 Lorillard v. Palmer 
 
 
 
 J 1 -> 
 
 152 
 
 Lorin<r i\ Neptune Ins. Co. 
 
 
 
 3.33 
 
 Lotty, Baric 202 
 
 204 
 
 485 
 
 487 
 
 Louisa, The 
 
 
 
 281 
 
 Loui.sa Bertha, The 
 
 
 4.30 
 
 477 
 
 Low I'. Commissioners of Pilota 
 
 ^c 
 
 479 
 
 V. l)e Wolf 
 
 
 
 362 
 
 V. jMumford 
 
 
 105 
 
 403 
 
 Lowry v. Steamboat Portland 
 
 197, 
 
 199, 
 
 
 
 
 203 
 
 V. Russell 
 
 
 
 123 
 
 Lowthorp V. Smith 
 
 
 
 85 
 
 Lucas V. Dorrien 
 
 
 
 344 
 
 V. Noekells 
 
 
 12.3, 
 
 145 
 
 V. Steamboat Swann 
 
 
 
 188 
 
 Ludlow V. Bownc 
 
 
 
 213 
 
 V. Van Rensselaer 
 
 
 
 225 
 
 Luft V. Steamboat Envoy 
 
 
 
 109 
 
 Lukev. Lydc 151,101, 
 
 165, 
 
 160, 
 
 168, 
 
 
 
 169, 
 
 215 
 
 Luna, The 
 
 
 
 278 
 
 Lutwid^e v. Grey 
 
 
 
 165 
 
 Liixfbrd r. Large 
 
 
 
 188 
 
 Lylc V. The Conestoga 
 
 
 
 199 
 
 Lyman v. Redman 
 
 2.34, 
 
 235, 
 
 3S8 
 
 Lyon V. AlvBrd 
 
 
 297, 
 
 312 
 
 V. Mells 
 
 
 
 179 
 
 Lyons v. Martin 
 
 
 
 94 
 
 M. 
 
 M'Andrew v. Adiuns 
 MeArthur r. Sears 
 M'Bride r. filar. Ins. Co. 
 
 175 
 219, 267, 
 
 McCabe v. Doe 
 MeCalmont i\ Rankin 
 M'CIures r. Hammond 175 
 
 MeCready v. (ioldsmith 
 M'Culloeh V. The Lethe 
 V. Maryland 
 M'Dcrmott v. The S. G. Owens 
 McDonald r. Joplia 
 M'Ewan v. Smith .342 
 
 M'Gaw V. Ocean Ins. Co. 149, 159, 
 
 McGilvcry r. Capen 
 
 M'Gregor v. Kilgore 175, 179, 
 
 McGuire v. Canal Boat Kentucky 
 
 Mac.hel, Ex ])arte 
 
 Mcintosh r. (Jasteniiofer 136 
 
 r. Slade 
 MTntyre r. Bownc 
 
 123 
 
 180 
 275, 
 300 
 253 
 
 42 
 240 
 198 
 448 
 
 58 
 489 
 476 
 344 
 160, 
 215 
 237 
 218 
 497 
 115 
 150 
 485 
 233 
 
 ASES CITED. 
 
 
 XXXIU 
 
 MTntyre n. Carver 
 
 
 
 127 
 
 V. Scott 
 
 
 
 115 
 
 MTvcr r. IIuml)lc 
 
 
 
 41 
 
 IMackay v. Roberts 
 
 
 193, 195 
 
 196 
 
 Mackensie r. Pooley 
 
 
 41, 91 
 
 382 
 
 jSIackcnzie v. Rowc 
 
 
 
 234 
 
 1 Mackintosh r. Mitcheson 
 
 
 89 
 
 MackrcU r. Simond 
 
 
 149 
 
 259 
 
 McLcllan r. Reed 
 
 
 
 236 
 
 j JNl'Manus r. Crickett 
 
 
 
 94 
 
 ; M'Millan v. Union In? 
 
 .Co. 
 
 
 487 
 
 1 IMacombcr r. Thompson 
 
 460, 468 
 
 469 
 
 IMactier «•. Wirijman 
 
 
 
 283 
 
 Macy V. De Wolf 
 
 82, 
 
 83, 89, 93 
 
 100 
 
 Maddox r. Goddard 
 
 
 
 85 
 
 JNIadison, Steamboat, i 
 
 . Wells 
 
 108 
 
 Madonna DTdra, The 
 
 
 430 
 
 4.52 
 
 MagalJiaens r. Bushcr 
 
 
 
 130 
 
 Magee r. The filoss 
 
 444, 
 
 445, 407, 
 
 471, 
 474 
 
 Mager v. Grinia 
 
 
 
 58 
 
 Maggratii r. Church 
 
 
 304, 305 
 
 328 
 
 Malioon r. The Gloccster 
 
 
 463 
 
 Mair v. Glennie 
 
 4.3, 80, 112, 
 
 477 
 
 Maisonnaire v. Keating 
 
 
 299 
 
 Majestic, Bark 
 
 
 
 153 
 
 Malonc r. Brig Mary 
 
 
 472, 
 
 474 
 
 Malpica r. McKown 
 
 
 384, 
 
 395 
 
 Malta, The 
 
 
 
 468 
 
 Mancely v. M'Gec 
 
 
 
 93 
 
 Manficld v. Maitland 
 
 
 
 223 
 
 Mangerton, The 
 
 
 194 
 
 199 
 
 Manro r. Almeida 
 
 
 
 393 
 
 Manter v. Holmes 
 
 
 112 
 
 2.53 
 
 Many v. Noyes 
 
 
 
 494 
 
 Marcardier v. Clicsapcakc I 
 
 ns. Co. 
 
 233, 
 
 
 
 
 251 
 
 Jlargarct, The 
 
 
 
 38 
 
 filaria. The (1 W. Rob.) 
 
 483, 485, 
 
 486, 
 
 
 
 
 487 
 
 (Blatchf. &II. 
 
 Adm.) 
 
 463, 
 
 
 
 407, 408, 
 
 469 
 
 Marine Ins. Co. v. Lenox 
 
 
 169 
 
 Marine Ins. Co. of N 
 
 y. 
 
 V. United 
 
 
 Ins. Co. 
 
 
 166, 
 
 168 
 
 Mariners c. Ship Kens 
 
 ngton 
 
 468 
 
 V. Ship Wasl 
 
 ington 
 
 453 
 
 Marion, Schooner 
 
 il7 
 
 ,491,492 
 
 500 
 
 Markbam r. Dozier 
 
 
 
 108 
 
 jNIanpiand r. Banner 
 
 
 233, 
 
 251 
 
 r. Webb 
 
 
 104, 381, 
 
 3S4 
 
 Maniot v. Stanley 
 
 
 
 192 
 
 Marsh v. Blvthe 
 
 
 191, 196, 
 
 197 
 
 r. Redder . 
 
 
 221, 
 
 250 
 
 r. Robinson 
 
 
 
 43 
 
 Marshall r. Garner 
 
 
 292, 
 
 316 
 
 Marsliam r. Dutrcy 
 
 
 
 334 
 
 Martiia, Ship (Olcott, 
 
 Adm 
 
 .) 
 
 150 
 
 The (3 Rob. 
 
 \dm 
 
 ) 
 
 2S1 
 
 ( Blatchf. 
 
 &1I 
 
 Adm.) 
 
 474. 
 
 
 
 475, 
 
 476 
 
 Martin v. Hilton 
 
 
 
 481 
 
 V. Paxton 
 
 
 
 113
 
 XXXIV 
 
 INDEX TO CASES CITED. 
 
 Mixrtiiulalc v. Smith 
 Miirtini v. Coles 
 Martino v. Bofrss 
 Marv, The (S) Cranch) 
 (1 Mason) 
 
 340 
 
 36.3 
 
 391 
 
 67 
 
 45 
 
 (1 Paine) 110,408,410,411, 
 429. 
 
 (Ware) 453, 454 
 
 Mary Ann, The (4 Notes of Cases, & 
 
 lOJnrist) 417,419,420, 
 
 429, 431,, 435 
 
 (9 Jurist) 429, 430 
 
 (Ahhott, Adm.) 471 
 
 Mary Ann Guest, Sdi. 139, 360 
 
 Marv Blane v. Bcehler 108 
 
 Mary Caroline, Tiie 397, 399 
 
 Maryland Ins. Co. v. "Woods 279 
 
 Masiiiter v. Bullcr 223, 224 
 
 Massaehusetts, The 201, 483, 485 
 
 Matthews, Ex parte 80, 81, 112 
 
 V. Lowthcr 248 
 
 V. OtHev 462 
 
 Mathewson r. Clarke 380 
 
 Maury v. 8heddeu 275 
 
 Maving r. Todd 177 
 
 Max V. Roberts 105 
 
 May V. Babcock 134, 137 
 
 V. Kelly 386 
 
 Mayell v. Potter 154 
 
 Mayhew v. Herrick 85 
 
 Mayo V. Snow 236 
 
 Mealiurn v. Leckie GO 
 
 Medeiros r. Hill 277, 279, 280 
 
 Medley v. Hughes 154 
 
 Meech v. Robinson 291 
 
 Meeker v. Klemm 321 
 
 Melanie, La ' 278 
 
 Meletopulo u. Ranking 339, 349 
 
 Melledge v. Boston Iron Co. 93 
 
 Mellish V. Motteux 69 
 
 Mellon V. Smith 195, 199 
 
 Mellona, The 204 
 
 Mentor, The 449, 468, 469 
 
 Mercantile Mut. Ins. Co. v. Chase 134, 
 
 178, 183 
 Mcrcurius, The 277 
 
 Merian v. Funek 219, 220 
 
 Merrick v. Avery 110, 502 
 
 Merrill v. Bartlett 82, 96, 102 
 
 Merrimac, The 214 
 
 Merriman v. Canal Boat Col. Butts 107 
 
 r. Brig May Queen 150, 179 
 Merritt v. Johnson 76 
 
 Mersereau v. Norton • 85 
 
 Mershon i'.,Hobensack 175 
 
 Merwin v. Shailer 89, 425 
 
 Mesner v. The Suffolk Bank 449 
 
 Mestacr r. Gillesjiie 43 
 
 Miehaelson r. Di'uison 463 
 
 INIiehensou r. I5rgliie 244 
 
 Michiuau Central Railroad Co. v. 
 
 Ward 178 
 
 Middlesex, Ship 153, 154, 156, 183, 214 
 
 Middleton v. Fowler 
 Midlothian, The 
 Milburn v. Guythcr 
 Miles V. Gorton 
 Miller i'. Brant 
 i\ Kelly 
 
 94 
 
 210 
 
 82, 85 
 
 342, 343, 358 
 
 472 
 
 477 
 
 Snow Rebecca 431 
 
 Milles V. Fletcher 59 
 
 Milligan v. Propeller B. F. Bruce 450 
 
 Millot V. Lovett 447 
 
 Mills V. Ball 354, 356, 375 
 
 V. Shult 131 
 
 Milni'. Spinola 91, 112, 115 
 
 Milward r. Hallett 381, 385, 386, 419 
 
 r. Hibbert 310 
 
 Miner v. Harbeck 460 
 
 Minerva, The 443, 445, 471 
 
 Minor v. Ship Astracan 203 
 
 Minot V. Durant 267, 
 
 Minturn v. Maynard 490 
 
 Miston V. Lord 167 
 
 Mitchel V. Ede 140, 214, 348 
 
 Mitchell V. Ship Orozimbo 469 
 
 V. Scaife 125, 252 
 
 V. Tarbutt 105 
 
 V. Tavlor 56, 57 
 
 Mitcheson v. Oliver 41, 90, 91, 380, 381, 
 
 382 
 Mobile, The 484, 485 
 
 Moffat V. East India Co. 218 
 
 Moffatt V. Farquharsou 83, 103 
 
 Mogadara v. Holt 20 
 
 Moller V. Young 144, 219, 257 
 
 Monarch, The 189, 206 
 
 Monk V. Whittenbuiy • 365 
 
 Monkhouse v. Hay 43, 81 
 
 Montgomery v. Wharton 86 
 
 Monticello, "Propeller, v. Mollison 199 
 Montreal, The 189, 206, 487 
 
 Moody V. Brown 76 
 
 V. Buck 85 
 
 Moore v. American Transp. Co. 406 
 
 V. Evans 178 
 
 V. State of Illinois ' 58 
 
 r. Moss 20.3,211 
 
 V. Shcridine 214 
 
 V. Wilson 213 
 
 Moorsom v. Bell 266 
 
 V. Greaves 219, 281 
 
 V. Kymer 221 
 
 V. Page 243 
 
 Moran v. Baudia 471 
 
 Mordy v. Jones 161 
 
 Morewood v. Pollok 183 
 
 Morgan's Ex'rs v. Biddle 57, 80 
 
 Morgan v. Con^don 127 
 
 r. Ins. Co. of N. A. 152 
 
 INIorris v. Cornell 449, 465, 470 
 
 I'. Rol)inson 66, 435 
 
 ISIorrison i\ General Steam Naviga- 
 tion Co. 193 
 V. Parsons 226 
 Morse v. Slue 132, 175, 181, 384
 
 INDEX TO CASES CITED. 
 
 Morville v. Great Northern llaihvav 
 
 Co. " 179 
 
 Moseley v. Lord 434 
 
 Moses V. Boston & Matne Railroad 177 
 V. Steamboat Missouri 107 
 
 Moslem, Tlic 454, 469 
 
 Mottrara v. Heycr 351, 352, 373, 374, 37G 
 
 285 
 
 187, 190 
 
 75 
 
 229, 277 
 
 87, 89, 91, 92, 100 
 
 225 
 
 166, 168, 223, 227 
 
 163 
 
 69 
 
 82, 83, 96, 97 
 
 218 
 
 393 
 
 150 
 
 429 
 
 492 
 
 Mouse's Case 
 Moxey, The 
 Muckiow V. Mangles 
 Mugji;ridgc v. Eveleth 
 Muldon r. Wliitlock 
 Muiler V. Gernon 
 Mulloy V. Backer 
 Mumlord v. Comm. Ins. Co. 
 V. M'Flierson 
 V. Nicoll 
 Munn V. Baker 
 Murfree v. Redding 
 Murphy v. Staton 
 Murray v. Lazarus 
 Murson V. Fales 
 Mut. Safety Ins. Co. v. Cargo of Ship 
 George 320,321,327,329 
 
 Bri- 
 
 George 139, 292, 333 
 
 Myer v. Vander Deyl 307 
 
 Myers v. Baymorc 312, 436 
 
 V. The Harriet 314 
 
 V. Perry 187, 188, 201, 204, 210, 
 
 211 
 
 V.Willis 41,91,112,115 
 
 N. 
 
 Nanoy, The 
 
 Napoleon, Steamhoat, v. Etter 
 Narragansett, Steamboat 199, 
 
 Nathan v. (iiles 
 
 r. State of Louisiana 
 Nathaniel Hooper, The 148, 160, 161, 
 1(17, 168, 235, 267, 281, 301, 328, 
 Nautilus, The • 188, 180, 
 
 Navade, Brig 278, 279, 
 
 Naylor v. Dcnnic 351, 366, 367, 372, 
 V. Taylor 277, 278, 279, 
 
 Neal I'. Saunderson 
 Ncave v. Pratt 
 Ncill V. Ridlev 
 
 Nelson, The 384, 407, 412, 416, 419, 
 421, 426, 428, 
 V. Belmont 290, 293, 297, 
 .306, 314, 317, 323, 326, 
 V. Stevenson 
 Neptune, The (1 ])ods.) 
 (3 Wheat.) 
 
 (3 Hagg.) 489, 
 
 Steamboat (Uleott, Adm.) 
 
 Neptunus, The (1 ]^)b. Adm.) 277, 
 
 (2 Kob. Adm.) 
 Neshitt I'. Lushin"ton 
 
 Nestor, Brig 93, 116, 118, 433, 491, 492, 
 
 502 
 Netherlands Steamboat Co. r. Stvles 198, 
 199, 201 ,'483, 485 
 Nevitt V. Clarke 457, 459, 463 
 
 Newall V. Hussey 93 
 
 Newark, The 185 
 
 Newberry v. Colvin 235 
 
 Newbold r. Wright 363 
 
 New Brunswick, The 439 
 
 New Brunswick Steamboat Co. v. 
 
 Tiers 181 
 
 New Champion, The 200 
 
 New Dra])cr, Tho 86 
 
 New England Mar. Ins. Co. v. Dc 
 
 Wolf 231 
 
 New England Ins. Co. v. Brij: 
 
 Ann 
 Newhall r. Dunlap 
 V. Vara as 
 
 Sarah 
 60, 61, 64 
 388, 390 
 340, 341, 342, 347, 
 350, 376 
 New Haven Steamboat Co. v. Van- 
 
 derbilt 192, 193 
 
 New Jersey, Steamboat 191, 199, 210 
 
 New Jersey Steam Nav. Co. v. Mer- 
 chants Bank 146, 175, 177, 178, 179, 
 
 183 
 Newman v. Cazalet 332 
 
 New Phamix, The 468 
 
 Newsom v. Thornton 139, 338, 360, 363, 
 
 370, 371 
 Newton v. Stebbins 199, 200 
 
 New World, Steamboat, v. King 387, 388 
 New York, Steamboat, v. Rea 58, 192, 195, 
 198, 199, 201, 209 
 New York «& Virginia Steamship Co 
 
 278 
 
 V. Calderwood 
 
 
 
 194, 
 
 200 
 
 100 
 
 Niagara, The 
 
 
 
 
 203 
 
 204 
 
 Niciiolls V. Lc Fcuvrc 
 
 
 
 
 376 
 
 305 
 
 Nichols V. De Wolf 
 
 
 
 
 393 
 
 58 
 
 V. Jewett 
 
 
 
 
 263 
 
 166, 
 
 r. Tremlett 
 
 
 
 123, 
 
 263 
 
 329 
 
 Nicholson v. May 
 
 
 
 491, 
 
 494 
 
 205 
 
 Nickolson ?■. Willan 
 
 
 
 177, 
 
 178 
 
 435 
 
 Nickerson v. Mason 
 
 
 
 
 481 
 
 373 
 
 ?'. Sch. ]\Ion: 
 
 oon 
 
 
 384 
 
 492 
 
 280 
 
 !'. Tyson 
 
 
 
 .307, 
 
 316 
 
 180 
 
 Nicoll I'. Mumford 
 
 
 82, 96, 
 
 102 
 
 446 
 
 Nieto V. Clark 
 
 
 
 
 461 
 
 249 
 
 Nimick r. Holmes 284, 
 
 288, 
 
 305. 
 
 313 
 
 317 
 
 420, 
 
 Nimrod, The 207, 313, 
 
 457,' 
 
 461, 
 
 463, 
 
 467 
 
 429 
 
 Nix V. Olive 
 
 
 142 
 
 352, 
 
 375 
 
 298, 
 
 Noble V. Adams 
 
 
 
 
 349 
 
 329 
 
 V. Steamboat St. 
 
 Ant 
 
 lony 
 
 
 109 
 
 217 
 
 Norris v. City of Boston 
 
 
 
 58 
 
 484 
 
 North V. Brig Eagle 
 
 
 
 
 492 
 
 38 
 
 Northern Indiana, The 
 
 
 198, 
 
 199 
 
 200 
 
 491 
 
 Northern v. Williams 
 
 
 
 154 
 
 156 
 
 194, 
 
 Northcy r. Pield 
 
 
 
 352, 
 
 374 
 
 199 
 
 Nostra Senora del Carmine, 
 
 The 
 
 
 437 
 
 278 
 
 Nostra Signora de los Dolores, The 
 
 43, 
 
 277 
 
 
 
 
 56 
 
 393 
 
 299 
 
 Niiova Loanesc, Tho 
 
 
 387 
 
 415 
 
 427
 
 XXXVi 
 
 INDEX TO CASES CITED. 
 
 0. 
 
 
 
 
 Parish ;•. Crawford 
 Parker v. Ship Calliope 
 
 
 170, 234 
 447 
 
 Oakoy V. Ilnsscll 
 
 
 175, 
 
 384 
 
 V. Flagg 
 
 
 175, 182 
 
 Oakley '•. StL-ain Packot Co 
 
 
 
 181 
 
 V. James 
 
 
 123 
 
 OakiiKin r. Steamboat Rescue 
 
 
 208 
 
 V. MTver 
 
 
 339, 373 
 
 Oastc i\ Taylor 
 
 
 
 19 
 
 Parkinson r. Steamboat Robert Ful- 
 
 O'Brien r. Gilchrist 
 
 
 134, 
 
 137 
 
 ton 
 
 
 108 
 
 Ocean, The 
 
 417, 
 
 428, 
 
 491 
 
 Parks V. Hall 
 
 
 342 
 
 Ocean Ins. Co. i\ Francis 
 
 
 
 08 
 
 Par m lee v. The Charles Mears 
 
 493, 498 
 
 Ocean Queen, The 
 
 
 
 491 
 
 Parr v. Applebee 
 
 
 42 
 
 Odiornc v. Maxcy 
 
 
 
 363 
 
 Parry, Ex parte 
 
 
 102 
 
 Odiin ;•. Ins. Co. of Penu. 
 
 
 267, 
 
 274 
 
 Parsons v. Hardy 
 
 
 165, 176 
 
 Ogdcn r. Barker 
 
 
 
 277 
 
 V. Monteath 
 
 
 178, 183 
 
 V. Coddinston 
 
 
 172, 
 
 214 
 
 V. Scott 
 
 
 299 
 
 V. Gen. Mut. Ins. Co 
 
 
 162, 
 
 216 
 
 Passenger Cases 
 
 
 58 
 
 V. Orr 
 
 
 
 460 
 
 Patapsco Ins. Co. v. Southgate 
 
 60, 61 
 
 V. Saunders 
 
 
 
 58 
 
 Paterson v. Tash 
 
 
 363 
 
 Offlc V. AVrangham 
 
 
 
 98 
 
 Patrick V. Tafts 
 
 
 496 
 
 Ohl V. Eagle Ins. Co. 
 
 
 54, 82 
 
 Patron r. Silva 
 
 
 267, 275 
 
 Oliver r. Fielden 
 
 
 
 271 
 
 Patten v. Gurney 
 
 103 
 
 105, 403 
 
 OUive V. Booker 
 
 131, 
 
 270, 
 
 271 
 
 Patterson v. Chalmers 82, 83 
 
 ,84, 
 
 87,93,99 
 
 Opi)cnlicim i'. Russell 
 
 
 351, 
 
 356 
 
 Patton r. JMagrath 
 
 182 
 
 , 184, 384 
 
 Oranse Bank v. Brown 
 
 
 
 175 
 
 V. Sell. Randolph 
 
 96, 
 
 380, 416, 
 
 Oratava, The 
 
 
 189, 
 
 194 
 
 
 
 417, 428 
 
 Oregon, Steamer, v. Rocca 
 
 
 200, 
 
 203 
 
 Paul V. Birch 
 
 
 252 
 
 Orclia, The 412, 
 
 418, 
 
 419, 
 
 429 
 
 Pawson V. Donnell 
 
 
 379 
 
 Oriental, The 
 
 
 415, 
 
 427 
 
 Payson v. Coolidge 
 
 
 232 
 
 Orleans, Steamboat, v. Phoebns 
 
 389, 
 
 390 
 
 Pcakc v. Carriugton 
 
 
 481 
 
 Orne i\ Townscnd 460, 
 
 401, 
 
 469, 
 
 475 
 
 Pearce (-•. Piper 
 
 
 84 
 
 Orrok r. Commonwealth Ins 
 
 . Co 
 
 
 298 
 
 Pearl, The 
 
 
 473, 475 
 
 Osborn v. Bank of the United States 
 
 58 
 
 Pearson v. Bark Tangier 
 
 
 155, 183 
 
 Osceola, Brig 443," 
 
 451, 
 
 473, 
 
 476 
 
 Pearsons v. Tincker 
 
 
 497 
 
 Osuood r. Groning 
 
 
 
 149 
 
 Peck V. Sanderson 
 
 
 199 
 
 Osmanli, The 417", 424, 429, 
 
 436 
 
 437 
 
 440 
 
 Peel r. Price 
 
 
 131 
 
 Ospre)^ The 
 
 
 
 199 
 
 Peirce v. Ocean Ins. Co. 
 
 
 60, 65 
 
 Ostrander v. Brown 
 
 
 154, 
 
 155 
 
 Peirson v. Pounteys 
 
 
 18 
 
 Otis r. Thorn 
 
 
 
 191 
 
 Pelayo v. Fox 
 
 
 226 
 
 V. Brig Whitaker 
 
 
 
 501 
 
 Pellecat v. Angell 
 
 
 225 
 
 Oviatt V. Sage 
 
 
 
 84 
 
 Pendleton v. Franklin 
 
 
 494 
 
 Owston V. Ogle 
 
 
 8. 
 
 2, 98 
 
 Pennell r. Alexander 
 
 
 360 
 
 
 
 
 
 Penn., Del. & Md. Nav. Co. r. 
 
 Dan- 
 
 
 
 
 
 dridge 
 
 
 176 
 
 P. 
 
 
 
 
 Penny v. X. Y. Ins. Co. 
 Penoyer r. Hallett • 
 
 
 300, 301 
 259 
 
 P. H. White, Steamboat, i'. Levy 
 
 106, 
 
 497, 
 
 Penrose i-. Wilks 
 
 
 221 
 
 
 
 
 498 
 
 Pensher, The 
 
 
 204 
 
 Pacific, The 
 
 
 
 223 
 
 People V. Brooks 
 
 
 58 
 
 Packard ?•. Sloop Louisa 
 
 
 
 432 
 
 People's Ferrv Co. v. Beers 
 
 
 498, 499 
 
 Packet, The Ship 302, 303, 
 
 383, 
 
 390, 
 
 416, 
 
 Perkins r. Hill 
 
 
 125, 241 
 
 417,428, 429, 
 
 432 
 
 436, 
 
 439 
 
 Perry v. Ohio Ins. Co. 
 
 
 297 
 
 Pactolus, The 
 
 
 
 204 
 
 V. Osborne 
 
 112 
 
 229, 236 
 
 Padclfurd v. Boardman 
 
 
 293 
 
 296 
 
 Perth, The 
 
 
 198 
 
 Page V. Hubbard 
 
 
 
 93 
 
 Peters r. Ballistier 
 
 360 
 
 , 388, 435 
 
 V. Sheffield 
 
 
 447, 
 
 451 
 
 V. Davis 
 
 
 104 
 
 Paine v. Bowker 
 
 
 
 157 
 
 V. Milligan 
 
 
 323 
 
 Palmer v. Gracie 
 
 125, 
 
 2.33 
 
 241 
 
 V. Warren Ins. Co. 
 
 302, 
 
 311, 325, 
 
 V. Lorillard 144, 
 
 152, 
 
 159, 
 
 267, 
 
 
 
 333 
 
 
 274 
 
 275 
 
 277 
 
 Peterson v. Gilison 
 
 
 445 
 
 Panama, Ship 151,223,410 
 
 ,411 
 
 ,422 
 
 439 
 
 Pettingill v. Diusmore 
 
 
 465 
 
 Panther, The 
 
 
 
 193 
 
 Peyroux r. Howard 116, 
 
 492, 
 
 494, 501, 
 
 Paradine i\ Jane 
 
 
 
 280 
 
 *' 
 
 
 502 
 
 Paragon, The 
 
 
 124 
 
 186 
 
 Peytona, The 135, 153, 
 
 154 
 
 185, 186 
 
 Pardee v. Drew 
 
 
 
 175 
 
 Pliebe, The 124, 229, 
 
 251 
 
 , 395, 403
 
 INDEX TO CASES CITED. 
 
 XXX vu 
 
 Phelps V. Steamboat Eureka 497 
 
 V. AVilliamson 223 
 
 Philadclpliia, The 475 
 
 Philadelpliia & Heading Railroad Co. 
 
 ?'. Derby 392, 395 
 
 Philadelpiiia v. Naglec 251 
 
 Phile V. The Anna 
 
 
 
 
 392 
 
 Philips V. Ledley 
 
 36, 
 
 54, 5 
 
 ', 89 
 
 115 
 
 l^hillimore r. Barry 
 
 
 
 
 343 
 
 Phillipj)s V. Briard 
 
 
 
 
 273 
 
 Phillij)s r. Chifrgett 
 
 
 
 
 103 
 
 V. Clai-k 
 
 
 
 
 191 
 
 V. Huth 
 
 
 
 
 365 
 
 V. Purington 
 
 
 
 
 83 
 
 V. Rodie 
 
 
 
 
 128 
 
 V. Tapper 
 
 
 
 
 384 
 
 V. Tlie Thomas 
 
 Scatterg 
 
 3od 
 
 389, 
 
 
 
 
 
 501 
 
 V. Wright 
 
 
 494, 
 
 495 
 
 502 
 
 Philpot V. Williams 
 
 
 
 
 80 
 
 Phoulie, Sch., v. Dignum 
 
 
 
 474 
 
 Pickering v. Barkley 
 
 
 20, 
 
 180, 
 
 181 
 
 V. Dowson 
 
 
 
 
 69 
 
 V. Holt 
 
 
 
 
 231 
 
 Pickman v. Woods 125, 145, 251, 254 
 
 Piehl V. Balchen 443, 444, 447, 451 , 453, 
 
 471, 473 
 Pierce v. Patten 
 Pierson v. Robinson 
 Pigot's Case 
 Pike V. Balfh 
 Pillans V. Van Mierop 
 Pinkncy v. Hall 
 
 Pinney v. Wells 
 Pinto I'. Atwater 
 Pirie v. Anderson 
 Pitkin r. Braiiierd 
 Pitman v. Hooper 
 Pitt, The 
 
 458 
 
 124, 389 
 
 230 
 
 64 
 
 21, 232 
 
 21 
 
 127, 145 
 
 166, 167 
 
 40, 41, 44, 45, 56 
 
 230, 2.35 
 
 222 
 
 66 
 
 Plaisted i\ Boston & Kennebec Steam 
 
 Nav. Co. 180, 182, 183, 191 
 
 Planehe v. Fletebor 225 
 
 Plumincr r. Wildman 293, 294, 298 
 
 Plvniontli Cordage Co. v. Sprague 42 
 
 Po'llok (-•. McAlpin 483, 484 
 
 Polydore v. Prince 465 
 
 Pomcrov !'. Donaldson 176 
 
 Pool j;. Welsh 460,461 
 
 Pope i\ Bavidgo 260 
 
 V. Nickerson 60, 162, 177, 380, 383, 
 400, 408, 409, 422, 431, 435, 436, 438 
 V. Steamer R. B. Forbes 194 
 
 Porcupine, The 450 
 
 Pordagc v. Cole 269 
 
 Porter v. Andrews 455 
 
 V. Steamboat New England 109 
 Portcrfield r. Humphreys 175 
 
 Portland Bank v. Staccy 57, 80 
 
 V. Stubhs 80, 112, 164 
 
 Port Wardens of New York v. Cart- 
 wright 58 
 Post V. Jones 61, 435 
 V. Robertson 148, 166, 168, 246 
 
 Posten, The 
 Potter V. Lansing 
 
 V. Ocean Ins. Co. 
 
 V. Pettis 
 
 i;. Providence Wash. Ins. Co, 
 Powell V. Layton 
 Power V. Whitmore 
 Pozzi u. Shipton 
 
 279 
 213 
 
 296 
 
 211 
 
 289 
 
 105 
 
 295, 305, 332 
 
 105 
 
 59, 80 
 
 386, 490, 491, 492 
 
 89 
 
 457, 458 
 
 306 
 
 154, 155, 156, 213 
 
 136, 150 
 
 58 
 
 471 
 
 Pratt V. Parkinan 
 
 V. Reed 
 
 V. Tnnno 
 
 Pray v. Stinson 
 
 Price V. Noble 
 
 V. Powell 
 
 V. Ship Uriel 
 
 Prigg V. Commonwealth of Penn 
 
 Prince Edward v. Trevcllick 
 
 Prince Frederick, The 445, 469 
 
 Prince George, The 450 
 
 Prince Regent, Tlie 437 
 
 Prince of Saxe Cobourg, The 418, 440 
 
 Pringle i\ MoUett 264 
 
 Pritciiard v. Sch. Lady Iloratia 492 
 
 Protector, The 485, 486 
 
 Providence, The 449 
 
 Provost V. Patchin 382 
 
 V. Wilcox 106 
 
 Puller V. Halliday 249 
 
 V. Staniforth 249, 268 
 
 Purington v. Hull of a New Ship 499, 500 
 Purviance i\ Angus 
 Purvis I'. Tunno 
 Putnam v. Dutch 
 
 r. Sch. Polly 
 
 r. Tillotsoa 
 
 V. Wise 
 
 V. Wood 
 
 395 
 
 240 
 
 80, 81 
 
 416, 418 
 
 133 
 
 84 
 
 238, 239, 240 
 
 Q. 
 
 Quarman i\ Burnett 
 Queiroz v. Trueman 
 
 R. 
 
 Racehorse, The 219, 
 
 Raisin r. Mitchell 
 
 Ralston v. The States Rights 
 
 392, 
 
 Rand ?». The Barge 
 
 Randall r. Lyncii 
 
 Randal|)h r. The United States 
 
 Hands r. Thomas 
 
 Rappahannock, Ship, r.Woodrul 
 
 Raritan, Steamboat, v. McCloy 
 V. Pollard 
 r. Smith 
 
 Rathbun r. Payne 188, 
 
 Raymond r. Sch. Ellen Stewart 
 V. Tysou 
 
 Raync, Ex parte 
 
 94 
 
 363 
 
 227 
 
 281 
 
 
 192 
 
 180, 
 
 204, 
 
 393 
 
 394 
 
 
 108 
 
 2G3 
 
 2G6 
 
 
 201 
 
 
 41 
 
 T 
 
 173 
 
 
 108 
 
 
 109 
 
 
 109 
 
 192, 
 
 195 
 
 501, 
 
 502 
 
 144, 
 
 146 
 
 
 398 
 
 VOL. I. 
 
 D
 
 XXXVIU 
 
 INDEX TO CASES CITED. 
 
 Rca V. Bnrnis 
 Head V. Bonham 
 i\ t!liiipman 
 
 V. Hull of a New Brig 116, 499, 
 Reafle r. Comin. Ins. Co. 9-3, 414, 
 Ready v. Steand)oat Highland Marv 
 
 180, 
 Rebecca, The (Ware) 124, 130, 18.5, 
 
 395 
 (Blatchf. & H. Adm.) ' 
 
 (5 Rob. Adm.) 4.33, 
 Reed v. Canfield 456, 
 
 V. Dick 
 
 V. Husscy 
 
 V. Upton 
 
 I'. White 91, 93, 
 
 Reeder v. Steamship George's Creek 
 
 499, 
 Reeside, Sch. 175,180,184, 
 
 Reeve v. Davis 111, 
 
 Reeves v. Capper 
 
 V. Ship Constitution 187, 189, 
 Reid V. Darby 
 
 V. Fairbanks 
 
 V. Hoskins 
 Relf V. The Maria 461, 466, 469, 
 
 Reliance, The 420, 431, 
 
 Relief, Steam Ferry-boat 
 Remnants in Court 
 Renard i'. Sampson 
 Reno i\ liogau 
 
 Renshaw v. Steamboat Pawnee 
 Renteria v. Ruding 139, 
 
 Resort, Barge, i'. Brooke 93, 
 
 Reusse v. Meyers 41, 44, 
 
 Revens v. Lewis 82, 88, 
 
 Revenue Cutter No. 1, The 499, 
 
 Rex V. Collector of Customs 
 Reynolds v. Ocean Ins. Co. 292, 
 
 V. Tdppan 
 Rhadamanthe, The 412, 415, 416, 
 Rhode Island, The 197, 
 
 Rice V. Clendining 
 
 V. Haylet 
 
 V. The Polly & Kitty 45^, 463, 
 
 ?'. Shute 
 Rich V. Coe 
 
 i\ Kneeland 
 V. Lambert 
 V. Parrott ' 
 Richardson v. Clark 
 V. Goss 
 
 V. Maine F. &M. Ins. Co. 
 
 225, 275, 
 
 V. Nourse 
 
 V. Whiting 
 
 Richmond, The 
 
 Richmond Turnpike Co 
 
 bilt 
 Rickcr r. Cross 
 Ricord v. Bettenham 
 
 116,381, 
 132, 
 124, 
 
 302, 
 
 Vander- 
 
 245 
 59 
 449 
 500 
 420 
 109, 
 184 
 186, 
 403 
 195, 
 196 
 440 
 457 
 270 
 477 
 93 
 100 
 492, 
 500 
 185 
 235 
 118 
 488 
 65 
 77 
 274 
 471 
 435 
 192 
 502 
 2.30 
 179 
 109 
 220 
 109 
 238 
 389 
 501 
 82 
 293 
 112 
 431 
 205 
 170 
 446 
 464, 
 471 
 104 
 384 
 175 
 185 
 243 
 73 
 366 
 152, 
 277 
 327 
 390 
 399 
 
 392 
 
 80 
 
 299 
 
 Rigby V. Hewitt 
 
 
 
 191 
 
 Riley v. Home 
 
 150, 
 
 177 
 
 178 
 
 King V. Franklin 
 
 41 
 
 , 42 
 
 115 
 
 Ringold r. Crocker 
 
 
 457, 
 
 464 
 
 Kii)lcy r. Scaife 
 
 219, 
 
 238, 
 
 259 
 
 Kipon, The 
 
 
 
 485 
 
 Ritchie v. Atkinson 
 
 
 149, 
 
 268 
 
 r. Bowsfield 
 
 
 
 485 
 
 Ritter v. Steamboat Jamesto 
 
 wn 
 
 
 10* 
 
 R. B. Forbes, Steamer 
 
 
 
 208 
 
 Robert Fulton, Ship 
 
 
 
 502 
 
 Robert Morris, Steamboat, v. 
 
 Will 
 
 iam- 
 
 
 son 
 
 
 
 106 
 
 Roberts v. Brett 
 
 
 
 269 
 
 V. Dallas 
 
 
 
 464 
 
 V. Havelock 
 
 
 
 246 
 
 V. Holt 
 
 
 
 221 
 
 Robertson v. Bethune 
 
 
 262, 
 
 266 
 
 V. Clarke 
 
 
 
 60 
 
 V. French 
 
 
 44, 56 
 
 V. Kennedy 
 
 
 
 181 
 
 V. Smith 
 
 
 
 105 
 
 V. United Ins. Co. 422, 440 
 Robinson v. Commonwealth Ins. Co. 60, 
 
 61 
 V. Gushing 104 
 
 V. Gleadow • 99 
 
 V. Steamer Lotus 106 
 
 V. Lyall 414 
 
 V. M'Donnell 81 
 
 V. Macdonnell 43, 80, 81 
 
 V. Manufacturers Ins. Co. 122 
 V. Marine Ins. Co. 166, 168, 169 
 V. Steamboat Red Jacket 107 
 158 
 
 V. Turpin 
 Rocher v. Busher 
 Rockefeller i\ Thompson 
 Rodrigues i-. Melhuish 
 Rodriguez v. Hetfernan 
 Rogers v. Hunter 
 
 V. McCune 
 
 r. Mechanics Ins. 
 
 V. The Rival 
 
 V. Steamer St 
 
 Co. 
 
 V. Thomas 
 Rollcston V. Hibbert 
 Romp, Sch. 
 Rose, The 
 Rose V. Himely 
 Rosetto V. Gurney 
 Ross V. Ship Active 
 
 V. Walker 
 Rossiter v. Chester 
 Routh V. Thompson 
 Roux V. Salvador 
 Rovena, The 470, 472, 473, 474, 475 
 
 Rover, Steamboat, v. Stiles 107 
 
 Rowe V. Pickford 353 
 
 Rowlev V. Bigelow 135, 340, 349,*360 
 
 RovarStuart,''The 418, 419, 427, 428 
 
 Rubicon, The 412, 422 
 
 385,386, 419 
 494 
 485, 487 
 363 
 264, 265 
 211 
 322 
 189, 206 
 Charles 189, 193, 
 198 
 340,369,370,371 
 57 
 112 
 192, 196, 198 
 68 
 161, 163 
 293,296, 416, 426, 
 436 
 479 
 165, 166 
 99 
 162
 
 INDEX TO CASES CITED. 
 
 XXXIX 
 
 Eucher v. Conyngham 407, 41G, 419, 
 
 Ruck V. Hatfield 134, 
 
 Ruckman r. Mott 231, 
 Rugg r. Minett 
 
 Ruggles V. Bucknor 125, 145, 146, 
 
 Runguist V. Ditchell 
 Russc'l V. The Asa R. Swift 
 Russell V. Wiggin 
 Rutherford r. M'Gowen 
 Ryall V. Kolle 
 
 V. Rowles 
 Ryberg v. Snell 
 
 423, 
 426 
 350 
 236 
 344 
 233, 
 251 
 130 
 501 
 232 
 176 
 118 
 81 
 360 
 
 Sagcman r. Sch. Brandywine 478 
 
 Sager v. Portsmouth S. & P. Rail- 
 road Co. 176, 179 
 St. Amaiul v. Lizai-di 395 
 St. Catherine, The 420, 422, 431, 439 
 St. Jago de Cuba, The 110,492 
 St. Jolin, Bark, r. Bark MaryBanna- 
 
 tvnc 196, 203 
 
 St.John V. Paine 197, 199, 200, 203 
 
 St. Louis Pcrpct. Ins. Co. r. Ford 108 
 Salmon Falls Co. v. Bark Tangier 153, 
 
 155, 183 
 Salomons r. Nissen 360, 362 
 
 Salte V. Field 366 
 
 Saltus V. Everett 162 
 
 V. Ocean Ins. Co. 160, 161, 162, 
 304 
 Sam Slick, The 496 
 
 Samnis v. Stewart 176 
 
 Sampayo v. Salter 149, 166 
 
 Sampson, Steam Tug 209 
 
 V. Smith 464, 466 
 
 Sanders v. Vanzeller 139, 219, 222 
 
 Sanderson v. Rusher 130 
 
 V. Columbus 199 
 
 San Juan Baptista, The 393 
 
 Sansom v. Ball 299, 305 
 
 Santa Clans, The 193, 195, 197, 203 
 
 Sappho, The 187, 189 
 
 Sarah, Tiie 192 
 
 Sarah Ann, The 60, 61, 64 
 
 Sarah Jane, The 444, 446, 477 
 
 Saratoga, The 460, 461 
 
 Sarchet i-. Sloop Davis 490, 492, 493 
 
 Saunders v. Buckup 464 
 
 r. Drew 224 
 
 Saunc V. Tourne . 200 
 
 Savory r. Clements 471 
 
 Sawyer v. Joslin 355, 373 
 
 V. Maine F. & Mar. Ins. Co. 67 
 Sayward v. Stevens 149, 185, 186 
 
 Scaife r. Tobin 219,330 
 
 Scarborough v. Lyrus 406, 419 
 
 Sehacht v. Otter 278 
 
 Schclter v. York 464 
 
 Schemerhorn v. Loincs 87, 89, 92 
 
 Schieffelin v. Harvev 178, 181 
 
 V. N. Y. Ins. Co. 161 
 
 Schilizzi V. Derry 275 
 
 Schneider i'. Heath 69, 70 
 
 Scholfield V. Bell 366 
 
 Schureman v. Witliers 170, 172 
 
 Scioto, The 187, 188, 189, 193, 201, 202, 
 
 206 
 
 Scott V. Libby 152, 167, 259, 277 
 
 V. Miller 379 
 
 V. Pcttit 353, 354, 373 
 
 V. The Plymouth 106, 493 
 
 V. Russell 468 
 
 Scottin V. Stanley 92 
 
 Scuddcr v. Balkam 495 
 
 V. Bradford 289, 314, 319 
 
 Scull r. Briddle 64 
 
 Sea Bird, Steamboat, v. Bechler 109 
 
 Seabrook i'. Rose 83, 96 
 
 Searlc v. Scovell 161, 163, 436 
 
 Sears v. Certain Bags of Linseed 145 
 
 Secomb v. Xutt 339, 357, 358, 372, 373 
 
 Sedgworth v. Overend 103 
 
 Sec Keutcr, The 86 
 
 Segura v. Reed 155 
 
 Seidcn r. Hendrickson 119, 408, 414, 417 
 
 V. Hiekock 85 
 
 Selina, The ' 430 
 
 Selleck v. Smith 363 
 
 Seringapatam, The 189 
 
 Servante v. James 104 
 
 Sewall V. Allen 175 
 
 V. Hull of a New Ship 495, 499 
 
 Shackleford r. Wilcox 186 
 
 Shadforth v. Iliggin 260, 271 
 
 Shank, Ex parte 116,491 
 
 Shannon, The (2 Hagg. Adm.) 199, 203 
 
 (1 W.Rob.) 187 
 
 Sbannon, The, & The Placidia 206 
 
 Shannon v. Comstock 247 
 
 V. Owen 72 
 
 Sharp V. United Ins. Co. 45 
 
 Sharplev r. Hurrel 407 
 
 Shatzell I'. Hart 127 
 
 Shaw V. Gftokin 390 
 
 V. The Lethe 448 
 
 r. Thompson 219, 252 
 
 V. York & Korth Midland Rail- 
 
 wav Co. 179 
 
 Shetlield r. Page 463 
 
 Shelton i: Brig Mary 296, 298, 302, 305, 
 
 311,329 
 Shepard v. De Bernalcs 221 
 
 Shepherd r. Kain 69, 70 
 
 v. Mitchell 480 
 
 V. Pybus 69 
 
 Shepherdess, The 279 
 
 Shcplev V. Davis 345 
 
 Shcppard v. Wright 334 
 
 Sheridan v. Fnrliur 464, 4()5 
 
 Shersby v. Hilibcrt 484 
 
 Sherwood c. Hall 383
 
 xl 
 
 INDEX TO CASES CITED. 
 
 Shirwood V. Mcintosh 
 
 449 
 
 471 
 
 472 
 
 474 
 
 Smith V. Wilson 
 
 
 
 
 259 
 
 V. Riiggles 
 
 240 
 
 326 
 
 333 
 
 334 
 
 V. Wright 
 
 
 
 186 
 
 307 
 
 Sliiolds V. Davis 
 
 
 
 170 
 
 172 
 
 Smyrl ;;. Niolon 
 
 
 
 150 
 
 184 
 
 Shift" V. La. State Ins. 
 
 Co. 
 
 
 
 332 
 
 Snaith v. Burridge 
 
 
 
 
 140 
 
 Shipley V. Kymer 
 
 
 
 
 363 
 
 Snee v. Baxter 
 
 
 
 
 338 
 
 Shipton V. Tiiornton 
 
 
 159, 
 
 161 
 
 163 
 
 V. I'rescot 
 
 
 142, 
 
 371 
 
 374 
 
 Shoemaker v. Norris 
 
 
 
 
 497 
 
 Snell V. Faussatt 
 
 
 
 
 68 
 
 Shone v. Lucas 
 
 
 
 
 372 
 
 V. The Independe 
 
 nee 
 
 
 474 
 
 475 
 
 Shorey v. Kennell 
 
 4G4, 
 
 465 
 
 466 
 
 467 
 
 V. Marryatt 
 
 
 
 
 130 
 
 Shrewsliury v. Sloop Two Friends 
 
 492 
 
 V. Rich 
 
 
 
 
 482 
 
 Shuhriek v. Sahuond 
 
 
 
 
 260 
 
 Snow V. Carruth 
 
 
 1.32 
 
 173 
 
 214 
 
 Shultz V. Ohio Ins. Co 
 
 
 
 
 163 
 
 V. Wope 
 
 
 
 444 
 
 467 
 
 Shumway v. Reed 
 
 
 
 
 93 
 
 Soames v. Lonergan 
 
 
 
 
 260 
 
 Slevcking v. Maass 
 
 
 
 
 261 
 
 Soares v. Rahri 
 
 
 418 
 
 419 
 
 440 
 
 Sift'ken v. Wray 
 
 
 340 
 
 366 
 
 368 
 
 Sodergreen v. Flight 
 
 
 125, 
 
 257 
 
 258 
 
 Sigard v. Roberts 
 
 
 
 
 471 
 
 Solly «'. Rathbone 
 
 
 
 
 363 
 
 Sills V. Brown 
 
 
 188, 
 
 192 
 
 195 
 
 Solomon r. Higgins 
 
 
 
 
 168 
 
 Simmons v. Swift 
 
 
 
 
 ^58 
 
 Somes V. Sugrue 
 
 
 
 
 60 
 
 Simonds v. Hodgson 
 
 
 
 407 
 
 431 
 
 Soomc V. Gleen 
 
 
 
 
 407 
 
 V. White 
 
 287, 
 
 320 
 
 330 
 
 332 
 
 Sophie, The 
 
 
 89, 
 
 489 
 
 492 
 
 Simpson v. Hand 
 
 
 188, 
 
 191, 
 
 194 
 
 Soule V. Rodocanachi 
 
 
 
 
 137 
 
 Sims V. Brittain 
 
 
 
 
 98 
 
 Souter V. Baymore 
 
 
 
 123 
 
 210 
 
 V. Gurney 
 
 289, 
 
 291, 
 
 313 
 
 314 
 
 Southcote's Case 
 
 
 
 
 178 
 
 V. Howard 
 
 
 
 152, 
 
 253 
 
 Southerne v. Howe 
 
 
 
 
 71 
 
 V. Sundry Mariners 
 
 
 
 472 
 
 Sonthwick v. Packet Boat Clvde 
 
 107 
 
 501 
 
 Sinchair v. Bowles 
 
 
 
 
 246 
 
 Spafford v. Dodge 267, 
 
 281 
 
 296, 
 
 300, 
 
 302, 
 
 Singleton r. Hilliard 
 
 
 
 175, 
 
 182 
 
 
 
 316, 
 
 321 
 
 327 
 
 Sinnott v. Steamboat Dresden 
 
 
 211 
 
 Spalding v. Mure 
 
 
 
 
 106 
 
 Siordet v. BrOdie 
 
 
 
 
 228 
 
 V. Ruding 
 
 
 
 
 361 
 
 Sisters, The 
 
 
 51, 5 
 
 2, 56 
 
 Sparks v. Kittredge 
 
 
 
 294 
 
 326 
 
 Skinner v. Dodge 
 
 
 
 
 363 
 
 V. West 
 
 
 
 
 172 
 
 Skolfield V. Potter 
 
 
 
 
 2.53 
 
 Speed. The 
 
 
 
 
 195 
 
 Slade V. The State 
 
 
 
 
 488 
 
 Speering v. Degrave 
 
 
 
 
 381 
 
 Sleat V. Fagg 
 
 
 
 
 179 
 
 Specrman i\ Degrave 
 
 
 
 
 381 
 
 Sloan V. Ship A. E. I. 
 
 
 
 416 
 
 423 
 
 Spence v. Chodwick 
 
 
 
 
 152 
 
 Slocum V. Fairchild 
 
 
 
 177, 
 
 179 
 
 Spencer v. Daggett 
 
 
 
 
 176 
 
 Slubey v. Heyward 
 
 
 
 
 357 
 
 V. Eustis 
 
 
 470, 
 
 473, 
 
 474 
 
 Small V. Moates 
 
 
 159, 
 
 252, 
 
 253 
 
 V. White 
 
 
 
 
 222 
 
 Smith V. Bowles 
 
 
 
 
 341 
 
 Spes, The, & The Irene 
 
 
 
 
 279 
 
 V. riondry 
 
 203, 
 
 204, 
 
 205, 
 
 486 
 
 Spildt V. Bowles 
 
 
 
 
 226 
 
 V. The Creole 
 
 209, 
 
 485, 
 
 486, 
 
 487 
 
 Sprague v. Kain 
 
 
 
 
 469 
 
 V. Davenport 
 
 
 
 152, 
 
 434 
 
 V. West 
 
 
 
 262, 
 
 265 
 
 V. De Silva 
 
 
 
 96, 
 
 100 
 
 Sproat V. Donnell 112, 
 
 186, 
 
 236, 
 
 307, 
 
 309 
 
 V. Dobson 
 
 
 189, 
 
 192, 
 
 198 
 
 Sproul V. Hemmingway 
 
 
 
 
 208 
 
 V. Duncanson 
 
 
 
 
 76 
 
 Sprowl V. Kellar 
 
 
 
 176, 
 
 181 
 
 V. Steamer Eastern Railroad 
 
 500, 
 
 Spurr )'. Pearson 
 
 
 
 
 468 
 
 
 
 
 
 501 
 
 Stainbdck v. Rae 
 
 
 
 
 187 
 
 V. Field 
 
 
 
 
 367 
 
 Stainbank v. Fcnning 
 
 382, 
 
 407, 
 
 408, 
 
 421 
 
 V. Flowers 
 
 
 
 
 219 
 
 V. Shepard 
 
 
 
 
 382 
 
 r. Fuge 
 
 
 
 
 41 
 
 Stanley v. Ayles 
 
 
 
 
 104 
 
 V. Goss 
 
 
 
 
 372 
 
 Stanton v. Eager 140, 
 
 141, 
 
 142, 
 
 340, 
 
 360 
 
 V. Gould 417 
 
 , 423, 
 
 424, 
 
 428 
 
 431 
 
 Starr v. Goodwin 
 
 
 
 
 72 
 
 V. Home 
 
 
 
 177, 
 
 179 
 
 V. Knox 
 
 
 
 42, 
 
 115 
 
 I'. Jordan 
 
 
 
 
 450 
 
 Stavers v. Curling 
 
 
 
 
 271 
 
 V. Lay 
 
 
 
 
 98 
 
 Steamboat Co. v. Whilldin 
 
 187, 
 
 197, 
 
 204, 
 
 V. Martin 
 
 
 
 
 162 
 
 
 
 
 
 211 
 
 V. Pierce 
 
 
 
 
 176 
 
 Steele v. Thatcher 
 
 
 
 
 471 
 
 i\ Plummer 
 
 
 
 
 389 
 
 Steelman v. Taylor 
 
 
 
 
 216 
 
 V. Seward 
 
 
 
 
 176 
 
 Stein metz v. U. S. Ins. 
 
 Co. 
 
 
 
 66 
 
 V. Shepherd 
 
 
 
 
 181 
 
 Stephen Allen, The 
 
 
 491, 
 
 492, 
 
 502 
 
 t". Sieveking 
 
 
 
 
 220 
 
 Stephens v. Sole 
 
 
 
 
 81 
 
 V. Swift 
 
 
 
 480 
 
 481 
 
 V. Ward 
 
 
 
 
 .501 
 
 V. Treat 
 
 
 
 461, 
 
 469 
 
 V. Wilkinson 
 
 
 
 
 340
 
 INDEX TO CASES CITED. 
 
 xli 
 
 Sterlinp; v. Hanson 
 
 Stert, The 
 
 Stevens v. Steamboat S. "W. Downs 
 
 V. Savward 
 
 V. Wilson 
 Stewart v. Hall 
 Sticrneld v. Holden 
 Stilk V. Mj-riik 
 Stillnian v. Hard 
 Stindt v. Koherts 
 Stinsou V. Wyman 
 
 Stockcr V. Corlett 
 Stoddard v. Lon 
 
 185, li 
 
 97 
 
 278 
 
 187 
 
 149 
 
 364 
 
 87, 91, 381, 385 
 
 363 
 
 448 
 
 436 
 
 219 
 
 ,301, 395, 
 
 399, 403 
 
 384 
 
 Island Railroad Co. 
 
 178, 179 
 
 Stokes v. Came - 41 
 
 V. La Riviere 346, 375 
 
 Stonai-d V. Dunkin 346 
 
 Stone V. Ketland 391 
 
 V. Patterson 267 
 
 V. Swift 361 
 
 V. Waitt 434 
 
 Stonchouse v. Gent 414 
 
 Storer v. Gordon 268 
 
 Stort.r. Clements 488 
 
 Stoujihton V. Rappalo 152, 276 
 
 Stovcld V. Hughes 344, 354 
 
 Stoyel V. Westcott 105 
 
 Strachan v. Trustees of Knox 352 
 
 Stratton r. Babbage 443, 444 
 
 Strelly v. Winsou 86 
 
 String V. Hill 448 
 
 Strong V. Hart 256 
 
 V. N. Y. Fireman Ins. Co. 332, 333 
 
 Strother v. Lovejoy 106, 109 
 
 Strout V. Foster 201 
 
 Stuart V. Iscmongcr 483, 485 
 
 Stubhs V. Lund 347, 360 
 
 Sturges V. Gairdner 165, 242, 246 
 
 V. Murphy 189 
 
 Sturgess v. Gary 288, 292, 293, 334 
 
 V. Steamboat Columbus 218 
 
 Sydnor v. Hurd 
 Sydney Cove, The 
 
 384 
 416, 4.30, 433 
 
 T. 
 
 Taber v. United States 30 
 
 Taggard v. Loring 56, 112, 229, 236 
 
 Taggart v. Buck more 495 
 
 Talbot (;. Three Brigs 393 
 
 Tanner v. Scovell 358 
 
 Taplev V. Martens 221, 255, 256 
 
 Tarrahocliia v. Hickie 270, 271 
 
 Tartar, The 412, 419, 420, 421, 428 
 
 Taunton Copper Co. v. Merchants 
 
 Ins. Co. 185,309,310 
 
 Taylor v. Bullen 70 
 
 V. Clav 263, 264 
 
 Sturgis V. Gary 
 Sullivan r. Ingrahara 
 
 V. Morgan 
 Sumnieril i\ Elder 
 Summit, Sch. 
 Sumiicr r. Hamlet 
 Sunilay v. Gordon 
 Sutherland r. Lishnan 
 Sutton r. The Albatross 
 V. Buck 
 V. Kcttell 
 Swain V. Shepherd 
 
 Swaiiision v. (Jarrick 
 
 Swanton c. Rccil 
 
 Swanwick v. Sothern 
 
 Swea, The 
 
 Swearington r. Steamboat Lynx 
 
 Sweet r. Pym 
 
 Sweeting r. Darthcz 
 
 Swift r. Clark 
 
 Swindler v. Hilliard 
 
 273, 
 
 310 
 468 
 462 
 341 
 201 
 
 395 
 447 
 
 501, 502 
 
 53 
 
 137 
 
 192, 214 
 185 
 230 
 
 345, 346 
 192 
 109 
 371 
 
 259, 261 
 
 447 
 
 176, 178, 179, 183 
 
 V. Curtis 
 
 V. Kymer 
 
 V. Laird 
 
 V. Steamboat 
 bell 
 
 V. Truman 
 Teed v. Baring 
 V. Martin 
 Test, The 
 Thames, The 
 Thacher v. Dinsmore 
 Thatcher r. McCuUoh 
 Thiseldon v. Gilihons 
 Thistleton v. Gibbons 
 Thomas Martin, The 
 
 306 
 365 
 477 
 Robert Carap- 
 
 108 
 
 365 
 
 90 
 
 41 
 
 203 
 
 391 
 
 93 
 
 123, 124, 151, 173 
 
 399 
 
 399 
 
 194 
 
 V. Boston & Providence Rail- 
 road Co. 
 
 177 
 
 V. Clarke 
 V. Foyle 
 V. Gray 
 V. Lane 
 V. Osbom 
 
 Thompson v. Busch 
 V. Collins 
 
 V. Cook 
 V. Davenport 
 V. Doiniuy 
 V. Finden 
 V. Gillcspy 
 
 238, 242, 244 
 
 44, 56 
 
 467 
 
 447, 465 
 
 124, 236, 380, 381, 
 
 385, 418, 493 
 
 449 
 
 469 
 
 85 
 
 91 
 
 139 
 
 87, 89, 91, 100 
 
 172 
 
 V. Hamilton 112,229,236, 251 
 r. Ilavclock 448 
 
 V. lloskins 103 
 
 V. Inglis 242, 271 
 
 V. Slii]) Oakland 445 
 
 V. Ship Philadelphia 475 
 
 V. Small 123, 1.34 
 
 V. Smith 43 
 
 V. Snow 112, 236 
 
 V. Thompson 372 
 
 V. Trail 128, 348 
 
 Thomson v. Roval Exch. Ass. Co. 409, 422 
 Thorn r. Hicks 115.384 
 
 Thorndikc v. DeWolf 82 96 
 
 V. Stone 119, 410, 411, 420
 
 Xill 
 
 INDEX TO CASES CITED. 
 
 Thome V. White 447, 461, 4G3, 466, 467, 
 
 469 
 Thoriilcy, The 187, 206 
 
 Thornton v. U. S. Ins. Co. 296, 332, 333 
 Thorojiood r. Bryan 191 
 
 Thurston r. Blanchard 93 
 
 Tillcy V. Farrow 480 
 
 Tilton, Sch. 60, 66, 68 
 
 Time, Steamboat, v. Parmlee 109 
 
 Tiudal II. Taylor 128, 139, 159, 160, 
 
 213, 273 
 Tindall v. Bell 20.5 
 
 Tingle f. Tucker 461,467 
 
 Tinkler v. Walpole 40, 41, 45 
 
 Tio V. Vance 161 
 
 Tobago, The 118,413 
 
 Tobin V. Crawford 220 
 
 Tom V. Goodrich 106 
 
 Tourrcl v. Fabry 396 
 
 Touteng ;•. Hubbard 275 
 
 Towle V. KettcU 259, 265 
 
 Townley v. Crump 343, 345 
 
 Towse V. Henderson 240, 250 
 
 Train v. Bennett 472 
 
 Transit, The 485 
 
 Trantor v. Watson 410 
 
 Trask v. Duvall 220 
 
 Traveller, The 196 
 
 Treadwell v. Union Ins. Co. 161, 162 
 
 Tree v. The Indiana 492, 493, 502 
 
 Tremenhere v. Tresillian 59 
 
 Tremont, The 65 
 
 Trent Navigation Co. v. Wood 173, 175, 
 
 180, 181 
 
 Trial, The 451 
 
 Tribune, The 231, 232, 382 
 
 Trident, The 414, 423, 430, 431, 432, 439 
 
 Triheton, The 277 
 
 Trinity House v. Clark 236 
 
 Triton, The 451 
 
 Tronson v. Dent 161, 214 
 
 Trowbridge v. Chapin 132 
 
 Truesdale v. Hazzard 107 
 
 Tnistces, &e. v. Kendrick 93 
 
 Tucker v. Buffington SO, 112, 115 
 
 V. Cappes 322 
 
 V. Humphrey 341, 344, 354, 361 
 
 Tuckerman v. Brown 233 
 
 Tudor V. Macomber 328, 329 
 
 TuH" V. Warman 188 
 
 Tunno v. Ship Mary 416 
 
 Turnbull i\ Sliip Enterprise 492 
 
 V. Ross 68 
 
 Turner's case 464, 466, 475 
 
 Turner ;•. Burrows 98, 99 
 
 V. Coolidge 80, 81 
 
 V. Lewis 109 
 
 V. Trustees of the Liverpool 
 
 Docks 138, 348 
 
 Tumcy v. Wilson 150, 176, 179, 184 
 
 Tutela, The 277 
 
 Twentyman v. Hart 115 
 
 Twitchcll V. Steamboat Missouri 109 
 
 Two Sisters, The 470, 476 
 
 Twyne's Case 80 
 
 Tyler v. Currier 496 
 
 U. 
 
 Ulary v. Ship Washington 471, 474, 475 
 Ulster County Bank v. McFarlan 232 
 Underwood v. Robertson 436 
 
 Union, The 463, 470, 474, 475 
 
 Ship, V. Jansen 470, 474, 475 
 
 Union Bank of South Carolina v. 
 
 Union Ins. Co. • 296 
 
 Union Ins. Co. v. Lenox 149, 166 
 
 United Ins. Co. v. Robinson 93 
 
 V. Scott 89, 93, 386, 434, 
 436 
 United States v. Alden 464 
 
 1'. Amedy 56 
 
 V. Ashton 455 
 
 V. Barker 445 
 
 V. Baitlett 38 
 
 V. Brune 31, 46 
 
 V. Brig Burdett 38 
 
 V. Coffin 462 
 
 V. Collins 464 
 
 V. Cutler 464, 465 
 
 V. Delaware Ins. Co. 119, 
 406 
 V. Forbes 482 
 
 V. Freeman 463 
 
 V. Gillies 37 
 
 V. Grundy 37 
 
 V. Grush 464 
 
 V. Hatch 459 
 
 V. Sch. Hawke 36 
 
 V. Hunt 464 
 
 V. Jenkins 31 
 
 V. Johns 40 
 
 V. Lendholm 465 
 
 V. Lunt 462 
 
 V. Lynch 482 
 
 V. Marigold 58 
 
 V. Matthews 471 
 
 , Steamboat, v. Mayor 202 
 V. Netcher 462 
 
 V. Nye 455 
 
 t'. Peters 58 
 
 V. Peterson 464 
 
 V. Ship Recorder 39 
 
 V. Rogers 30 
 
 V. Ruggles 462, 466 
 
 V. Small 464 
 
 V. Smith 463 
 
 V. Staly 444, 455 
 
 V. The Thomas Swan 227 
 V. Wickham 463 
 
 V. Wilder 324, 333 
 
 V. Willings 37, 56 
 
 V. Winn 464
 
 INDEX TO CASES CITED. 
 
 xliii 
 
 Urann v. Fletcher 
 Ure V. Coffman 
 Utility, The 
 
 V. 
 
 Valentine l\ Clcugh 
 
 Vall(f^ V. Wheeler 
 
 Valpy I'. Gibson 
 
 Van Amringe v. Peabody 
 
 Van Bcuren v. Wilson 
 
 Van Bokkelin v. Ingersoll 125, 
 
 Van Casteelr. Booker 138, 141, 213, 
 
 Vandenheuvel v. United Ins. Co. 
 Vanderbilt, The 
 
 Vanderplank v. Miller 188, 
 
 Vanderslice v. Steam Tow-boat Supe- 
 rior 
 Vandewater v. Mills 
 Vanheath v. Turner 
 Van Norden v. Littlejohn 
 Van Omeron i'. Do^\^k 
 Vansyckle v. Sch. Thomas Ewing 
 Vantine v. The Lake 
 Varner v. Koblcborough 
 Varuna, The 
 Vaux I'. Shcffer 
 Veacock v. M'Call 
 Vclona, Brig 
 
 Veltman v. Thompson 494, 
 
 Vennall v. Garner 188, 192, 
 
 Vent V. Osgood 
 
 Venus, The 37, 
 
 Vernard v. Hudson 143, 183, 
 
 Vernon, The 203, 
 
 Vertue v. Jewell 341, 
 
 Verunia, Brig, v. Clark 
 Vibilia, The 89, 418, 419, 422, 423, 
 
 Victoria, The (Edw. Adm.) 
 
 (3 W. Eob.) 189, 
 Vinal V. Burrill 4: 
 
 Virgil, The 187, 
 
 Virgin, The 408, 41 G, 419, 420, 
 
 Vlierboom V. Chapman 149, 
 107, 
 Volant, The 
 Volcano, The 
 Volunteer, Sch. 124, 125, 144, 
 
 Voorhees v. Steamboat Eureka 
 Vose V. Morton 
 Vrow Anna Catharina, The 
 Henrietta, The 
 
 192 
 
 5, 56 
 192, 
 
 422, 
 430, 
 
 162, 
 168 
 207, 
 
 145, 
 252 
 
 112 
 194 
 500 
 
 194 
 251 
 .354 
 363 
 460 
 127 
 348, 
 349 
 302 
 202 
 192 
 
 176 
 132 
 19 
 167 
 435 
 487 
 202 
 93 
 444 
 189 
 447 
 167 
 502 
 196 
 473 
 214 
 187 
 485 
 371 
 187 
 
 432, 
 491 
 68 
 201 
 229 
 198 
 
 428, 
 431 
 
 166, 
 435 
 398 
 202 
 
 2.33, 
 254 
 498 
 370 
 227 
 227 
 
 W. 
 
 Wainwright v. Crawford 
 Wait V. Baker 
 
 89, 384, 408 
 138, 141, 349 
 
 Wait V. Gibbs 
 Walcutt r. Wilcutt 
 Waldcn v. Chamberlain 
 
 452, 
 
 413, 416, 
 
 418, 
 
 V. Le Koy 296, 
 
 Waldo, The 124, 185, 186, 391, 
 
 ^V*alker, Ex parte 
 
 Walker v. Jackson 
 
 V. U. S. Ins. Co. 289, 
 
 Wallace i-. Agry 
 V. Breeds 
 V. Fielden 
 Wallcy V. Montgomery 140, 
 
 415, 
 141, 
 212, 
 147, 
 
 332, 
 
 462, 
 
 194, 
 
 197, 200, 
 
 Wallis V. Cook 
 Walpole V. Bridges 
 
 V. Ewer 
 Walsh V. Homer 
 Walter v. Brewer 
 
 V.Ross 140,360,361, 
 
 Walton V. Ship Neptune 456, 
 
 Wape r. Hcmenway 
 Ward i\ Ames 
 
 V. Armstrong 
 V. Sch. Dousman 
 V. Felton 
 V. Green 
 
 r. The Ogdcnsburgh 197,198, 
 V. Whitney 134, 
 
 r. Willson 
 Wardell i-. jMourilh'an 
 Waring v. Clarke 
 
 V. Morse 173, 185, 
 
 Warman v. Faithfull 
 Warner v. Martin 140, 
 
 Warren v. Peabody 
 ?7. Sproule 
 Warrington, The 
 Warrior, The 
 
 AVashington, The Steamboat 
 Washington Irving, The 
 Washington, Pilot Boat, i>. The Sa- 
 luda 
 Watkins v. Atkinson 
 
 V. Hill 
 Watkinson v. Bernadiston 116, 389, 
 V. Laughton 175, 181, 
 
 Watson V. Christie 
 
 V. Duykinck 223, 224, 
 
 Watt V. Potter 
 Watts V. Steamboat Saxon 
 Wattson V. Marks 181, 402, 404, 
 
 Wave, The (Blatchf. & II. Adm.) 
 
 (4 Eng. L. & Eq.) 415, 
 V. Ilycr 
 Wavcrly, Stcaml)oat, v. Clements 
 Wayhan'd r. IMosely 134, 
 
 Wavnc V. Steamboat Gcn'l Pike 107, 
 Wcail V. King 
 
 Weaver v. The S. G. Owens 44, 45, 
 493, 497, 
 Webb V. Brooke 
 
 V. Duckingficld 446, 
 
 477 
 383 
 417, 
 425 
 3Ul 
 434 
 375 
 176 
 291 
 
 93 
 344 
 427 
 147, 
 372 
 410 
 180 
 422 
 123 
 392 
 365 
 458 
 443 
 471 
 200 
 201 
 220 
 231 
 199 
 137 
 107 
 152 
 192 
 186 
 232 
 363 
 244 
 342 
 450 
 
 66 
 197 
 199 
 
 485 
 107 
 93 
 491 
 384 
 464 
 227 
 435 
 158 
 405 
 479 
 423 
 479 
 106 
 137 
 156 
 105 
 5g, 
 501 
 299 
 476
 
 xliv 
 
 INDEX TO CASES CITED. 
 
 Webb V. rcii-cc 112, 236, 2').'} 
 
 V. Winter 214 
 
 Webster v. Brig Andes 501 
 
 V. Seckamp 89, 381, 386, 387 
 
 Weed V. Paniima Kailroad Co. 394 
 
 Wef^encr w. Smith 219 
 
 Weissor v. Maitland 260 
 
 Welch V. Hicks 164, 166 
 
 y. McCIintock 391 
 
 Weld V. Oliver 84 
 
 Welles V. Gray 299 
 
 Wells V. Meldrun 460, 4G1 
 
 V. Steam Nav. Co. 176, 178 
 
 Wcndover v. Hogcboom 56 
 
 Wentwoith v. Outhwaite 340, 353, 358 
 
 West V. Barge Lady Franklin 107 
 
 Westerdell v. Dale 43, 57, 89, 115, 116 
 
 Western v. Wildy 409 
 
 Westmorland, The 444, 470, 475 
 
 Weston r. City Council of Charleston 58 
 
 V. Foster 243 
 
 V. Minot 243, 246 
 
 V. Penniman 41, 51, 52, 54 
 
 V. Train 325 
 
 Westzinthus, In re 361 
 
 Wheeler r. Bavidge 281 
 
 V. Curtis 168, 243 
 
 V. The Eastern State 197, 198, 
 
 203, 211 
 
 r. Sumner 57, 80 
 
 Wheelwriglit v. Dcpeyster 68, 103 
 
 Whitall ('.""Brig William Henry 240 
 
 Whitcomh V. Williams 93 
 
 White V. Baring 256, 389 
 
 V. Crisp 202 
 
 V. Ship Daedalus 407 
 
 V. Osborn 84 
 
 V. Wilson 447 
 
 Whitehead v. Anderson 353, 374, 376 
 
 Whitehouse v. Frost 345 
 
 Whiteman v. The Neptune 447 
 
 Whitesides v. Russell 150, 179, 184, 218 
 
 V. Thurlkill 191 
 
 Whitfield V. Parfitt 43 
 
 Whitmore r. Steamboat Caroline 109 
 
 Whitney v. Eager 447, 465 
 
 V. Gauche 150 
 
 V. N. Y. Firemen Ins. Co. 
 
 161,162,215 
 Whittel i;. Crawford 195 
 
 Whitteridge i\ Norris 285 
 
 Whitton r. Brig Commerce 461, 472, 475 
 Wick V. Tiie Samuel Strong 106 
 
 Wickham v. Bliglit 450 
 
 Wightman r. Macadam 296, 312 
 
 Wilcox i>. Parmclee 218 
 
 AVilelmiua Elconora, The 227, 281 
 
 Wilkins v. Carmichael 389, 491 
 
 V. Reed 93 
 
 Wilkinson v. Frasier 477 
 
 r. Wilson 415 
 
 Willard v. Dorr 389, 443, 451, 468 
 
 William, The 487 
 
 William & Emmeline, The 124, 407, 409, 
 
 415, 416, 418 
 
 William Harris, The 455, 457, 467 
 
 William Young, Steam Tug 192, 199 
 
 Williams v. African Steamship Co. 405 
 
 V. Barton 363 
 
 V. Bosanquet 115 
 
 V. Branson 179 
 
 V. Everett 345 
 
 V. Grant 175, 180, 181, 184 
 
 V. Kennebec Ins. Co. 162 
 
 i: London Ass. Co. 328 
 
 V. Steamboat Morrisett 108 
 
 V. Nichols 434 
 
 V. Peytavin 132 
 
 V. The Polly 492 
 
 V. Smith 166 
 
 V. Steadman 409 
 
 V. Suffolk Ins. Co. 314, 315 
 
 V. Williams (Carthew.) 20 
 
 (23 Maine) 112, 236 
 
 Williamson v. Barrett 205, 211 
 
 V. Steamboat Missouri 108 
 
 V. Price* 485, 487 
 
 Wilmer v. The Smilax 119, 409, 410, 432, 
 
 43.5 
 
 Wilmhurst v. Bowker 340, 349 
 
 Wilson V. Dickson 396, 397, 398, 403 
 
 v. Hamilton 176 
 
 V. Hicks 247 
 
 V. Kymer 125, 220 
 
 V. The Mary 466, 467 
 
 V. Millar 435 
 
 V. Reed 85 
 
 Winchester v. Patterson 148 
 
 Winslow V. Norton 360 
 
 V. Prince 48'I 
 
 V. Tarbox 115 
 
 Winsor r. Cutts 236 
 
 V. McLellan 80,81 
 
 Winthrop ik Carleton 458 
 
 Wirgman v. Mactier 224 
 
 Wirrall, The 199 
 
 Wiseman v. Vandeputt 338, 371 
 
 Withers i'. Lys 345 
 
 Wolcott V. Eagle Ins. Co. 122, 218 
 
 Wolfe V. Myers 134, 137 
 
 Wolverton v. Lacey 442, 478 
 
 Wood 1-. Bell 72, 76 
 
 V. Bodwcll 93 
 
 r. Jones . 341,375,376 
 
 V. The Nimrod 445, 449, 450, 466, 
 
 467, 474 
 
 V. Roach 341 
 
 V. Yeatman 342, 356, 373 
 
 Woodrop Sims, The 187, 195 
 
 Woods r. Clark 65 
 
 V. Russell 72, 75, 78 
 
 Woodward v. Rowe 19 
 
 Wooly V. Ship Peruvian 497 
 
 Worms V. Storev 240 
 
 Wright V. Caldwell 133 
 
 V. Campbell 138, 359, 364
 
 INDEX TO CASES CITED. 
 
 xlv 
 
 "Wright r. Ilantcr 
 
 82, 89 
 
 V. Lawes 
 
 355, 356 
 
 V. Snell 
 
 179 
 
 V. Wilcox 
 
 394 
 
 Wyatt V. Marquis of Ilertford 
 
 93, 100 
 
 Wyld V. Pickford 
 
 179 
 
 Wynne v. Raikes 
 
 232 
 
 y. 
 
 Yallop, Ex parte 
 
 40, 43, 57 
 
 Yates V. Brown 
 
 482, 485, 487 
 
 V. Duflf 
 
 131 
 
 V. Hall 
 
 449 
 
 V. Wiiyte 
 
 204 
 
 Yorkshircman, The 
 
 205 
 
 Young, Ex parte 
 
 82, 96, 100, 102 
 
 Young ^Mechanic, The 118, 132, 491, 499 
 Young Sam, Ijhe 491, 495, 500 
 
 Young r. Steamboat Virginia* 106 
 
 Ysabel, La 414, 422, 432 
 
 Zachrisson v. Ahman 
 
 Zagury v. Furnell 
 
 Zane v. Brig President 
 
 Zenobia, The 
 
 Zephyr, Tiie 
 
 Zerega v. Poppe 
 
 Ziele V. Campbell 
 
 Zodiac, The 387, 418, 432, 433, 491 
 
 Zwilchcnbart v. Henderson 219 
 
 Zwingcr v. Samuda 344 
 
 364 
 344 
 
 490, ^92, 502 
 
 181, 223, 227, 391 
 
 420, 429, 431, 438 
 
 150, 173 
 
 105
 
 BOOK I . 
 
 ON THE LAW OF SHIPPING.
 
 A TREATISE 
 
 LAW OF MARITIME PROPERTY AKD CONTRACTS. 
 
 CHAPTER I. 
 
 ON THE HISTORY AND ORIGIN OF THE LAW OF SHIPPING. 
 
 SECTION I. 
 
 OF THE PRINCIPAL FOREIGN CODES AND WRITERS AVHICII TREAT OF 
 
 TEIS LAAV. 
 
 While the common law of England was acquiring form and 
 authority, the commerce of England was much less than that of 
 some other of the states of Europe ; and, in comparison with 
 that of the same country in recent times, was slight and unim- 
 portant. Hence the principles of the common law are not ade- 
 quate nor always applicable to the present exigencies of com- 
 merce. 
 
 There are occasional intimations, in even the oldest books of 
 the law, that England had then shijjping and merchants, and 
 that questions in relation to ships came sometimes before the 
 courts. Even in those ages, the usage of merchants was evi- 
 dently — and sometimes expressly — referred to as a guide, if not 
 a master, in cases of this kind. As, with the growing commerce
 
 4 ON THE LAW OF SIIIPPIXG. [bOOK I. 
 
 of England, those questions grew more frequent, more diversified, 
 and more imi)ortant, this usage was referred to more and more 
 constantly, and perhaps with increasing deference, until, out of 
 this usage, or rather in conformity with it, but yet importantly 
 modified by those rules of law with which the courts were most 
 familiar, the law merchant of England gradually acquired force 
 and authority. Sometimes it is said to have grown up along- 
 side of the common law. Bat, in fact, it was adopted step by 
 step, as an integral part of the common law ; and the flexi- 
 bility of that system, and the vital force with which, as a living 
 thing, it yielded to the new influences and supplied the new 
 wants presented by successive changes in the condition of the 
 people, are well illustrated by the way in which the law mer- 
 chant became, to a very great extent, a part of the common law, 
 and as such came over to this country, and is our law as it is 
 that of England. 
 
 As this mercantile law was formed under the modifying, 
 though not controlling, influence of the common law, so, on the 
 other hand, it exerted a reciprocal influence upon the common 
 law, through nearly all branches of the law of contracts. Thus 
 the rules respecting sales, agency, parties, consideration, assent, 
 and construction generally, all exhibit the clearest indications that 
 the customs of merchants have produced important modifications 
 of them. But the law of shipping, the law of marine insurance, 
 and the law of negotiable paper, may be regarded as the princi- 
 pal topics which belong in an especial manner to the law mer- 
 chant. They may be said to have had no other origin than the 
 custom of merchants. The common law yielded somewhat 
 slowly and reluctantly to their demands ; and even when it 
 adopted them, insisted upon the application of its own princi- 
 ples. In some instances these were retained and enforced, when 
 they were incongruous, and incompatible with those customs ; 
 and sometimes the law merchant has suffered detriment from 
 this cause, which has not, perhaps, wholly ceased to operate in 
 England, or even in this country. 
 
 By the custom of merchants, which is thus regarded as the 
 parent of the law merchant, is not meant merely the custom of 
 English merchants at the time the English courts first took 
 cognizance of them ; and not merely the custom of English or 
 American merchants at different periods from the beginning of
 
 en. I.] PRINCIPAL FOREIGN CODES AND WRITERS. 5 
 
 the law merchant of England to the present day. For, if this 
 were the case, we should have no other sources of authority for 
 this custom, or for the rules derivable froni it, especially in its 
 earliest periods, than the brief and unfrequent cases in the 
 early English reports in which questions of this kind are con- 
 sidered. 
 
 The common law has its old books of authority; and they are 
 numerous and excellent; Statham, Fitzherbert, Glanville, Brooke, 
 in the sixteenth century, and in the next, Bracton, Fleta, Britton, 
 Rolle, Shcppard, and — at the head, perhaps, of all — Coke, give 
 not only to the antiquarian, but to the student, for present and 
 practical purposes, needed and trustworthy information. To 
 these we may add the reports of adjudged cases, which exhibit 
 with the utmost clearness the history of the law for six centuries. 
 But, in the treatises and digests above enumerated, we find little 
 that can indicate more than the existence of a law merchant, or 
 of the custom of mcrciiants. And, although the earlier reports 
 are not quite so barren in this respect, the notices they give of 
 the law merchant are scanty, and of comparatively little value. 
 
 We are not, however, destitute of authority and precedent for 
 the earlier, and, as they may well be called, the fundamental 
 rules, of this great branch of the law. Indeed, this authority 
 ascends to a far remoter anti(|uity; and the books, to which we 
 must refer for it, have two other important advantages over their 
 brethren of the common law. One of them is, that they give us 
 the rules, not of one people or country, but of the commercial 
 world, and therefore they are more free from local and partial 
 causes of error or limitation. Tlio other is, that, founded as they 
 were upon the cxjjerience, the necessities, and the usages of the 
 merchants generally of the then civilized world, they are charac- 
 terized by a profouiul rationality and an exact justice, which 
 are seldom, if ever, materially afl'ected by the rigjits or jirejndices 
 of caste or class, or by that devotion to, and p(M-petual considera- 
 tion of war with, one's neighbors, which was the soul of the 
 feudal system, and, through that system, necessarily inlluenced 
 and injured the whole body of muniei[)al law in all feudal 
 nations. 
 
 These books retain at this day their utility, if not their authority. 
 And no lawyer should consider himself safe in his knowledge of 
 the law merchant, who has not studied them, at the very least, 
 
 1*
 
 6 ON THE LAAV OF SHIPPING. [BOOK I. 
 
 enough to enable him to make use of them when profes- 
 sional exigencies require him to do so. These books are, those 
 of the Roman civil law, the Consolato del Mare, the Laws of 
 Oleron, the Laws of Wisbuy, Le Guidon, the Marine Ordon- 
 nance of Louis XIV., with the Commentaries of Valin, and 
 the principal treatises on this branch of the law by Pothier and 
 other eminent writers of continental Europe. 
 
 It is true that neither the civil law nor either of these earlier 
 codes treats of negotiable paper ; ^ for that' was a later invention. 
 But it is also true, that the laws of continental Europe in rela- 
 tion to bills and notes are of much and growing importance and 
 utility in the investigation of the questions presented under our 
 own law in reference to those instruments ; and these Em-opean 
 systems are based upon the civil law, and qualified by it, at least 
 as much as our own law is by the common law. 
 
 A similar remark may be made of insurance; excepting that, 
 as the law of marine insurance is obviously dependent upon the 
 law of shipping, as, for example, in questions of wreck, jettison, 
 average, and contribution, and maritime contracts generally, we 
 may learn much that is now useful, not to say indispensable, 
 for the understanding and application of the existing rules of 
 insurance law from those earliest sources. 
 
 When we come to the law of shipping itself, w^e find at once 
 that the present rules and principles, some even of those which 
 might seem to be most peculiar, ascend to a higher antiquity 
 than any thing in the common law, or in any other existing sys- 
 tem of law. Even the Roman civil law, in the rubric de lege 
 Rhodia de jactu, (Dig. 14, 2,) quotes and confirms the law of 
 Rhodes concerning jettison. It would seem that this island pos- 
 sessed a flourishing commerce, at least a thousand years before the 
 Christian era ; that a system of law was there in force, which 
 won a general acceptance in those ages, and was itself probably 
 founded upon their established usages. Of this system we have 
 preserved, certainly, only the fragment contained in the above 
 cited rubric; for the collection of maritime laws which may be 
 found in the commentary of Vinnius, under the name of the 
 Rhodian Laws, is undoubtedly a later compilation. But in this 
 fragment we have the modern law of jettison, average, and con- 
 
 1 But sec on this subject, Domat, Cusbing's edition, sect. 1200.
 
 CH. I.] PRINCIPAL FOREIGN CODES AND WRITERS. 7 
 
 tribution, as distinctly stated as in any recent text-book. It is in 
 these words : " Lege Rliodia cavetur, ut si levandLc navis gratia 
 jactus mercium factus est, omnium contributione sarciatur 
 quod pro omnibus datum est." And the whole title of the 
 Digest about this rule is wise and instructive. 
 
 There are, however, many other rubrics of the civil law which 
 relate to shipping, and are not traceable to any earlier origin. 
 Th» rubric immediately preceding that just quoted, is, " De Ex- 
 ercitoria actione," of which the general purpose is to make the 
 ship-owner responsible for the acts of the master of the ship. 
 
 The rubric, " Nautte, caupones, stabularii, ut recepta restitu- 
 ant," (Dig. 4, 9,) provides that mariners, (limited, however, in the 
 title to the master of the ship,) and the keepers of inns and sta- 
 bles, should be responsible for property committed to their 
 charge. And this is confirmed in the rubric, " Furti adversus 
 nautas, caupones, stabularios." Dig. 47, 5. 
 
 The rubric, » De nautico fscnore," (Dig. 22, 2, Code, 4, 33,) 
 gives us the present rules which regulate loans on bottomry and 
 respondentia. 
 
 in the rubric " de Incendio, ruina, naufragio, rate, nave expug- 
 nata," (Dig. 47, 9,) it is provided that fourfold damages should 
 be paid by the plunderer of a vessel in distress. 
 
 In these rubrics there are provisions applicable especially to 
 ships, and to those who own or navigate ships. And it should 
 be added also, that, upon some other topics of deep interest in 
 the law merchant, as payment, and imputation (or, as we term 
 it, appropriation) of payment, carriage of goods, novation, loans, 
 and hiring of money, pledge, partnership, and finally the great 
 topic of sales, the civil law is full of most profitable instruction. 
 
 It is perhaps- to be regretted that the study of this system of 
 law, which certainly deserves, if ever any system of law did, the 
 proud title of "ratio scripta," is not more extensively pursued in 
 this country. In England there was, formerly at least, a posi- 
 tive hostility to it; and it lingers there still, and may have come 
 over to this country, and still exert some inlluence. If this were 
 the proper place, it might not be dillicult to show that it is at 
 least questionable whether the common law doctriiie of sales, — 
 which, upon the central question, when and how the property or 
 ownership in the thing sold passes from the seller to the buyer, 
 is in direct antagonism with the civil law, — is (juite so well
 
 8 ON THE LAW OF SHIPPING. [liOOK I. 
 
 adapted to mercantile purposes ; and whether, even now, a more 
 extensive use of the civil law distinction between the jus ad rem 
 and the jus in re would not assist in determining questions 
 which must still be regarded as unsettled. If we do not mis- 
 take, there are some indications that the courts and the profes- 
 sion are beginning to find that the common law, which is ours 
 by inheritance, may be usefully illustrated at least, and, possibly, 
 qualified, by principles drawn from the Roman civil law. • 
 
 Students are often deterred from any examination of the 
 civil law, by a belief that useful knowledge of it cannot be 
 acquired, without the expenditure of a vast amount of time and 
 labor. But this is a mistake. A thorough knowledge of all its 
 principles cannot be acquired by less than a life of labor. This, 
 however, is not necessary; and the orderly arrangement of this 
 law, the exactness and clearness of its phraseology, the complete 
 and well adapted apparatus for its study, which now exist, and 
 the excellent introductions to it, which have been published in 
 our language, enable a student in his hours of collateral study 
 alone, to learn much of its history and general character, and of 
 the order in which its topics are presented, and of the manner in 
 which the principal books of reference to this law are con- 
 structed. Having learnt this, he will fi.nd no difficulty in 
 afterwards examining fully any question which may arise in his 
 study or practice; and we are persuaded that no lawyer who 
 shall pursue this course will afterwards find reason to believe 
 that the hours thus employed were wasted. " It is most cer- 
 tain," says Dr. Strahan, in his preface to his translation of Domat, 
 " that it is in the body of the civil law that we have the most 
 complete, if not the only collection, of the rules of natural 
 reason and equity, which are to govern the actions of mankind." 
 This is high praise ; but even if it be deserved, the advice of 
 Chancellor D'Aguesseau to his son may not be the less neces- 
 sary. He wishes him "to distinguish for himself that which 
 belongs to natural and immutable justice from that which is 
 only the work of a positive and arbitrary will ; to avoid being 
 dazzled by the subtilties which are frequently diffused in the 
 Roman jurisconsults ; and to draw with safety from their treas- 
 ury of reason and common sense." 
 
 The Consolato del Mare is a code of maritime law of great 
 antiquity and equal celebrity. But it is not open to the English
 
 CII. I.] PRINCIPAL FOREIGN CODES AND WRITERS. 9 
 
 student, as no translation into our language, excepting of a few 
 chapters, has ever been published. The origin of this code is 
 not certainly known ; neither the names of its authors, nor the 
 time nor the place of its earliest promulgation, can now be ascer- 
 tained. It was first printed, however, somewhere in the four- 
 teenth century, but is supposed to have been in force and in 
 general use for a considerable time before. And, indeed, we 
 consider the most reasonable theory of its origin to be that 
 which regards it as a gradual collection, or digest of all the prin- 
 cipal rules and usages established among commercial nations 
 from the twelfth to the fourteenth century. Very many topics 
 of maritime law are treated of in it, and various commercial 
 regulations have been added in the editions which have appeared, 
 from time to time, in Europe. It may be referred to profitably, 
 in relation to the ownership of ships, and the rights and the 
 obligations thereto ; to the rights and responsibilities of master 
 and seaman ; to the law of freight, of equipment and supply, of 
 jettison and average, of salvage, of ransom, and eyjiecially to 
 the law of prize, in regard to which it has of late years exercised 
 an important authority. The best edition by far, and by com- 
 mon consent, is that of Pardessus, in his Collection of Mari- 
 time Laws. We are in hopes that an English translation 
 from this edition will soon be made and published in this 
 country. 
 
 Next to the Consolato in time, or, perhaps, — for this is dis- 
 puted, — before it, come the Laws of Oleron. We know that 
 these were collected, or at all events promulgated and publi^^hed, 
 as the rules then in force for the regulation of shipping, in the 
 small island of Oleron, off' the coast of France. The French 
 claim that Queen Eleanor, who was Duchess of the province of 
 Guienne, near which Oleron lies, authorized and caused their 
 publication ; the English say that her son, Richard I., did this. 
 The only thing certain is, that no one knows who their author 
 was ; but they were undoubtedly first established somewhere in 
 the twelfth century. This code has been repeatedly published 
 in English, and is most accessible to American students in the 
 A))pendix to the first volume of Peters' Admiralty Reports. 
 Their value to the student of the law of shipping may be 
 inferred from an enumeration of the principal topics. These are 
 the navigation and sale of a ship, the duties and the rights of
 
 10 ON THE LAAV OF SHIPPING. [bOOK I. 
 
 master and mariners, wreclc, freight, salvage, jettison, injuries to 
 cargo, quarrels on board ships, collision, anchorage, supplies and 
 repairs, the intentional stranding of a ship, pilots, partnership in 
 vessels, and goods taken from wrecked ships. 
 
 The next code of which we shall speak is that known as 
 " The Laws of Wisbuy." The exact date of these also is 
 uncertain ; and by some they are supposed to be older than the 
 Laws of Oleron. The weight of authority is, however, that they 
 were founded upon the Laws of Oleron, and were only modified 
 so far as to make them better adapted to the usages or the 
 wants of the commercial states or cities of northern Europe; 
 and that the code was published about the twelfth or thirteenth 
 century, immediately after the Laws of Oleron. Wisbuy was 
 a convenient port on the north-western coast of Gott-land, an 
 island in the Baltic, about equally distant from Sweden, Russia, 
 and Germany. These laws, its former celebrity, and the works 
 of art and luxury now found among its ruins, indicate that this 
 city was the emporium of a great trade ; although there is noth- 
 ing in its position, and nothing preserved in its history, which 
 explains either this or the rapid and total decay of its prosperity. 
 Some historians, however, attribute its decline and destruction 
 to dissensions and conflicts among its own citizens ; and if they 
 existed and endured, they would have been, indeed, a sufficient 
 cause for swift and utter ruin. 
 
 This code covered a wide ground, embracing most of the top- 
 ics of the law of shipping; but it is cojicise and sententious 
 and very brief, occupying but a few pages in the Appendix to 
 Peters' Admiralty Reports ; and a cursory examination shows a 
 coincidence with the Laws of Oleron quite too uniform to be 
 casual. 
 
 The sixty-sixth section of the laws of Wisbuy has given rise 
 to a curious question. It is in these words : " If the merchant 
 obliges the master to insure the ship, the merchant shall be 
 obliged to insure the master's life against the hazards of the sea." 
 Here is a distinct recognition of the contract of insurance ; and 
 in terms which imply that it was familiarly known to mercantile 
 persons. It follows, therefore, either that the Laws of Wisbuy 
 are a much later work than is commonly supposed, — and 
 against this theory the internal as well as the external evidence 
 is very strong, — or that this section is an interpolation of later
 
 CH. I.] PRINCIPAL FOREIGN CODES AND AVRITERS. 11 
 
 date, which is perhaps the prevailing opinion; — or that ma- 
 rine insurance and life insurance existed, and were common, cen- 
 turies earlier than is commonly supposed. It is not the place 
 here to go into a critical examination of this question ; but we 
 confess a strong disposition to adopt this last view, which 
 seems to us supported by facts as well as arguments, and for 
 which we have the high authority of Emerigon. 
 
 Sometime in the sixteenth century, there was published a 
 French work, commonly known by the name of " Le Guidon," 
 of which the whole title is " Le guidon utile et necessairc pour 
 ceux qui font merchandise et qui mettent a la mer." This work 
 was highly praised, as well as published and illustrated, by 
 Cleirac, about a century after its first appearance, and is not un- 
 frequently cited by writers on maritime law. But it relates 
 mainly to bottomry and insurance, and, though there is some 
 reference to other topics of the law of shipping, they are not pre- 
 sented with much fulness, and the work is of less value than 
 those previously mentioned. 
 
 At length we reach the Ordonnance de la Marine of Louis 
 XIV., published in 1681. Our own Kent calls this " a monu- 
 ment of the wisdom of his reign, far more durable and more 
 glorious than all the military trophies won by the valor of his 
 armies." It covers the whole ground of maritime law, includ- 
 ing insurance ; enacting with clearness and perspicuity all the 
 provisions then in force, whether derived from the sources above 
 enumerated, from a more general tradition, from previous enact- 
 ments, or from usage. These it arranges in an excellent order ; 
 and displays a learning and ability in those who prepared it 
 which forbids the supj)osition that they were mere compilers. 
 But, strange to say, tlie authors of this ordinance are wholly 
 unknown. This, also, is inserted in the Appendix to Peters' 
 Admiralty Rejiorts. 
 
 Almost a century after this ordinance appeared, Valin pub- 
 lished his Commentary upon it. This admirable work acquired 
 at once celebrity and authority, and is now oftener referred to in 
 this country than any foreign work on maritime law. It was 
 not, like Coke's Commentary on Littleton, a vast and ill- 
 arranged luass of learning, that utterly submerged the treatise 
 whicii it proposed to illustrate. But, while doing full justice to 
 the ordinance, not only admitting its excellence in general, but
 
 12 ON THE LAW OF SHIPPING. [bOOK I. 
 
 exhibiting it clearly in detail, it is itself a work of the greatest 
 utility, unci of the highest authority. 
 
 We might now enumerate a long list of commentators and ju- 
 risconsults who have written, in some instances, for the purjDose 
 of illustrating the above-mentioned codes or laws, but more fre- 
 quently, independent works of their own. The catalogue of 
 names would, however, be of little use, unless we could present 
 at least a general view of the particular merits of each one ; and 
 this would require far more space and far more labor than we 
 could give to it. It may, however, be of some assistance to the 
 student, if we mention the names of a few of the most important, 
 and describe their writings briefly. 
 
 We begin with Cleirac, a French author, who published, in 
 1647, at Bordeaux, a volume entitled " Us et coutumes de la mer" 
 — (Usages and Customs of the Sea). It is divided into three 
 parts, which upon the title-page are called, 1st. Of navigation. 
 2d. Of naval commerce and maritime contracts. 3d. Of the 
 jurisdiction of the marine. In fact, however, the first part, con- 
 taining 212 pages, consists of the Laws of Oleron, the Laws of 
 Wisbuy, and the Ordinances of the Hanse towns, determined 
 at Lubeck in 1597. The second part contains Le Guidon, in 
 twenty chapters, of which we have already spoken. To this are 
 added certain formularies or rules upon some of these subjects, 
 which were in force in Antwerp and Amsterdam. The third 
 consists of various ordinances of the governments of France, 
 Spain, and the Netherlands, concerning the jurisdiction of the 
 admiralty. All of these, however, and especially Le Guidon in 
 the second part, are accompanied by very valuable notes and 
 comments, making the whole book a complete and most trust- 
 worthy exhibition of the whole maritime law of that age. 
 
 In 1655, Roccus, a Neapolitan jurisconsult and lawyer, pub- 
 lished a large work on maritime law, from which was taken and 
 compiled a smaller work, published in Amsterdam in 1708, 
 entitled " De Navibus et Naulo, item de assecurationibus, nota- 
 bilia " (of ships and freight, and of insurance). This is a 
 learned, very able, and, at this day, very useful work. It does 
 not purport, like Cleirac's volume, to be a reprint or compilation 
 of any previously existing works. But it gives the whole law 
 merchant of that day, as it was known to a lawyer of full prac- 
 tice and high authority. The orderly arrangement of the topics,
 
 CH. l] principal foreign codes and writers. 13 
 
 and the directness and simplicity with which they are treated, 
 make a reference to this book, and the use of it, very easy. 
 Each of the " Notabilia " contains a distinct statement of some 
 rule or princijsle, followed by citations of authorities. Most of 
 them are very brief, few covering so much as a page. An 
 excellent summary at the beginning of the first part, of ships 
 and freight, and another at the beginning of the second part, 
 assurance, enables a student to turn readily to the precise thing 
 he wishes to see. To these two parts are added select answers 
 and arguments of Roccus in actual cases. We find this work 
 more frequently referred to than the former ; they are, however, 
 very different, and neither supersedes the other. 
 
 Passing over a century, we come to another Italian legist, 
 Casaregis ; who, after many years of full practice in mercantile 
 cases, received the appointment of judge in the high courts of 
 Tuscany, and held it for twenty years. His works were pub- 
 lished after his death in four volumes, folio. The first two of 
 these consist of two hundred and twenty-six " Discursus Le- 
 gales," which cover the whole ground of commercial law, in- 
 cluding insurance, the law of shipping, partnership, and exchange.. 
 The third volume contains an edition of the Consolato del i\Iare,. 
 with an ample commentary. The fourth volume is usually 
 bound up with the third, both together being only about as large 
 as either of the others. This last volume does not treat of com- 
 mercial law, but of successions, and other analogous topics. 
 Casaregis is a far more voluminous author than either, of the 
 preceding ; and his matter is not so well arranged ; certainly not 
 so well for the mere convenience df the student. But his vol- 
 umes contain a treasury of the law merchant. Scarcely any 
 topic is omitted ; and many curious questions seem to have been 
 anticipated, and are illustrated with the combined light of learn- 
 ing and genius. Story said of him, " I cannot say much about 
 this book from my own knowledge, for I have only referred to it 
 occasionally. But rarely have I looked into his works upon any 
 contested question, without being instructed and enlightened by 
 the perusal." And Valin has declared emphatically, that Casa- 
 regis is incontestably the best of all maritime authors. 
 
 We close this list with the name of Pothier; in some respects 
 the greatest name of all. Born in 1699 ; at the age of fifty, after 
 he had acquired the highest reputation as a jurisconsult, he 
 
 2
 
 14 ox THE LAW OF SHIPPING. [BOOK I. 
 
 accepted the office of Professor of Law in the University of 
 Orleans, to which he was appointed by D'Aguesseau. A year 
 before, he had begun the publication of the Pandects. In the 
 two centuries which have followed, there have been celebrated 
 civilians, whose almost boundless knowledge may have sur- 
 passed Pothier. But the common consent of those of the Eng- 
 lish and American judges and lawyers, who have sought the aid 
 of the civil law in deciding questions of the present day, has 
 given to Pothier the credit of being the most useful and the 
 most trustworthy of civilians. 
 
 He was for some years employed in completing his edition of 
 the Pandects. And then he poured forth in rapid succession a 
 series of treatises upon a great variety of subjects, in which the 
 student will find all that the most complete acquaintance with 
 the civil law could give, but qualified, illustrated, and made 
 thoroughly practical by an equal knowledge of the actual law of 
 his time, and, yet more, by the clearest view of the great and 
 abiding principles of truth and justice and order, of which the 
 rules of law must be the exponents, or be erroneous and perish- 
 able. Of these treatises, those which refer especially to com- 
 mercial law, are, on obligations, in 1761 ; of the contracts of 
 sale, in 1762; of bills of exchange, in 1763; of hiring, in 1764; 
 with a supplement to this latter, in 1765, which treats of mari- 
 time hiring, and of partnership. Of the treatise on obligations, 
 an English translation by Martin was published in 1802, and a 
 better one by Evans, in 1806 ; this last has been republished in 
 this country several times. The treatise on maritime hiring 
 has been translaied by Calet) Gushing, in 1821, and that on the 
 contract of sale, by L. S. Gushing, in 1839. Both of these' 
 translations are excellent, and the books are in common use. 
 
 Sir William Jones, in a passage in which he claims the credit 
 of introducing Pothier to the acquaintance of his countrymen, 
 and regards this alone as discharging his debt to the profession, 
 says : " I seize with pleasure an opportunity of recommending 
 Pothier's admirable treatises on all the different species of express 
 or implied contracts to' the English lawyer; exhorting him to 
 read them again and again." ^ 
 
 1 See Jones on Bailments, p. 29. In the case of Hoare v. Cazenove, 16 East, 398, 
 Lord Ellenljorongh, in a decision in which he cites several continental v>'riters who are
 
 CH. I.] PRIXCIPAL FOREIGN CODES AND "WRITERS. 15 
 
 It is undoubtedly true, that the books above mentioned are 
 wholly unknown to the great body of the profession in this 
 country, and to many of those who stand in its front ranks. 
 But it is quite as certain that some of those who have attained 
 the very highest position, and who have been most useful, and 
 have done for the law of their country a good, a great, and a 
 permanent work, have studied these books, and from these an- 
 cient and abounding sources have drawn the principles and 
 arguments, the rules and the reason, which have enabled them 
 to strengthen the foundations of the jurisprudence of their coun- 
 tries, or incorporate in the superstructure that which will never 
 be taken away. 
 
 To speak only of the dead, and of two only of them. In 1756, 
 Mansfield took his place upon the bench of England. Then, 
 her commercial jurisprudence began to acquire form and regu- 
 larity. He had the sagacity to see that the technical rules, and 
 indeed the principles, of the common law, were not sufficient for 
 the growing exigencies of British commerce. And he had the 
 greatness to leave his own peculiar ground, and go where he 
 could find the resources which he needed. 
 
 He brought to the commercial law of England three distinct 
 
 in conflict -with each other, coincides with Pothier, and saj-s that he is "a most 
 learned and eminent writer upon every subject connected with the law of contracts, and 
 intimately acquainted with the, law merchant in particular." In the case of Cox v. 
 Troy, 5 B. & Aid. 474, relating to the law of bills of exchange, Abbott, C. J., and 
 Ilolroi/d, J., speak of Pothier as of very high authority, and Best, J., says, " The 
 authority of Pothier is expressly in point. That is as high as can be had, next to the 
 decision of a court of justice in this country." And closes additional remarks in his 
 praise, by saying, " His writings have been constantly referred to by the courts." .... 
 " We cannot, therefore, have a better guide than Pothier on this subject." Byles, in 
 the preface to his excellent work on bills and notes, says that Pothier " evinces a pro- 
 found acquaintance with the principles of jurisprudence, .and extraordinary acumen and 
 sagacity in their application ; the result of the laborious exercise of his talents on the 
 Roman law." He adds, " There cannot be a greater proof of the surpassing merit of 
 his works, than that, after the lapse of more than half a century, and a stupendous 
 revolution in all the institutions of his country, many parts of iiis writings have been 
 incorporated, word for word, in the new Code of France. The Tniite dii Contrat de 
 ChivKje is often cited in tlie English courts of law." For tlie estimation in which 
 he is held in tliis country, I can only refer to the very frcciuent reference to liim, not 
 only in numerous cases, but by all our writers who look at all to civilians and writers 
 of continental Europe. In some of Story's works, for example, we find note after note 
 repeating Potliicr's name, through many successive pages ; and frequently with expres- 
 sions of the liighest commendation.
 
 16 ON THE LAW OF SHIPPING. [BOOK I. 
 
 elements. One of these was his own accurate and profound 
 knowledge of the common law. Another was the usage of mer- 
 chants, which he openly adopted as a guide, and endeavored to 
 ascertain, as well by personal inquiries among them, as by spe- 
 cial juries composed of them, and by examination of merchants 
 as witnesses. But he added also yet a third, and it was a dili- 
 gent study and a careful consideration of those old codes and 
 writers that we have enumerated. In Scotland, the civil law 
 is the basis of the municipal law, as the common law is in Eng- 
 land. Murray, afterwards Lord Mansfield, was a Scotchman, 
 and received a Scotch education, and thus became an excellent 
 civilian. And the use he made of this knowledge was never 
 obtruded, but never concealed. In one case, Luke v. Lyde, 2 
 Burr. 882, where the important question of freight 7?ro rata was 
 for the first time fully considered in an English court, he cited, 
 from the Pandects, the laws of Rhodes, — calling them " the 
 ancientest laws in the world," — the Consolato del Mare, the 
 Laws of Oleron, from Cleirac's Us et Coustumes de la mer, 
 the Laws of Wisbuy, and Roccus de Navibus et naulo, and the 
 Ordinance of the Marine of Louis XIV. Thus, in this one case, 
 referring to nearly all those works which we have enumerated. 
 Marshall, in his book on insurance, exhibits Mansfield as almost 
 the creator of the law of insurance for England, and supposes 
 him to have drawn much of his knowledge on this subject from 
 the ordinance of Louis, and the commentary of Valin. 
 
 I have already mentioned the name of our own Story. Placed 
 in early life upon the bench of the supreme court of the nation, 
 it was his fortune to be called upon to exercise the judicial func- 
 tions in the infancy of our national jurisprudence. One great 
 question met him at the beginning : what is the admiralty juris- 
 diction secured to the courts of the United States by the consti- 
 tution. Many, and probably a great majority, of the lawyers of 
 this country, had no other idea of it than that which the shat- 
 tered and fettered admiralty of England could give them. And, 
 judging from all human probability, we have some right to say, 
 that, if Story had not at that time held that place of high author- 
 ity, the present admiralty jurisdiction of England would have 
 been ours at this moment. 
 
 None can deny that it was he who settled this question ; and 
 he was obliged to maintain his ground against obloquy and
 
 cii. l] principal foreign codes and writers. 17 
 
 reproach which might well have shaken any man. Bat the great 
 and admitted utility of the free and wide admiralty jurisdiction, 
 actually established among us, may induce an opinion that if 
 Story had not taken that ground, and if, at his day, and at the 
 beginning, this question had been decided otherwise, this same 
 jurisdiction would have vindicated itself, and by some other 
 instrumentality been restored to the fair proportions of which- it 
 was curtailed in England in a succession of ages, by the attacks 
 of rival and victorious courts. The answer is, that it was only 
 by the greatest effort and the greatest firmness that t^ie difficult 
 work of restoring the admiralty system to its original extent and 
 vigor was then accomplished. If it had been delayed, this work 
 would have been with every added year more difficult, until it 
 became impossible. And it is to be remembered that the pro- 
 fession would not then have had the opportunity of judging by 
 experience of the utility and safety of this jurisdiction. 
 
 Story could not find all the true and original principles of 
 admiralt}-, or of the law of shipping, in English law. He fol- 
 lowed the lead of Mansfield, and went where they could be 
 found ; v,^ent to continental Europe ; to the successive codes 
 which in successive ages have defined that jurisdiction and built 
 up that law, and to the many learned men who have illustrated 
 both. But he went with a freer step than iNIansfield, and a still 
 wider research brought to him, on every point of the law mer- 
 chant, still greater and more constant assistance. Story's fame 
 does not need exaggeration nor concealment. If it be admitted 
 that his vast and various official duties and personal under- 
 takings, and the very extent of his inquiries, necessarily resulted 
 in much knowledge that was only superficial, and some oj)inions 
 that were erroneous, it will still always remain true, that to his 
 sagacity, his firmness, his iiidastry, his learning, and though last, 
 not j)erhaps least, to the beautiful amenity and ciiarming cour- 
 tesy of his personal demeanor and the universal kindness which 
 helped him so much in the many conflicts he was obliged to 
 sustain, this country is very largely indebted for its admirable 
 system of commercial law and commercial jurisprudence. 
 
 2*
 
 18 ON THE LAW OF SHIPPING. [lOOK I. 
 
 SECTION 11. 
 
 OF THE ENGLISH ADJUDICATION WHICH CREATED Oil DEFINED THIS 
 
 LAW. 
 
 It has been already intimated that the common law has wel- 
 comed and adopted the law merchant; at least, to a certain 
 extent. It is instructive to observe the successive steps of this 
 progi'ess. Indeed, at the beginning, or in the early ages of the 
 common law, the "customs of merchants" appear to have had 
 almost a greater respect paid to them, and a more positive 
 authority allowed them, than in later times. And this, if it be a 
 fact, may be explained in part by the want of that power and 
 that rigidity in the common law which came with age, and its 
 accumulation of precedents, and its observance of technicalities ; 
 and in part by the infrequency of questions of a commercial 
 nature, and the apparent absence of danger, even if the few 
 which came up were permitted to be decided by a law of their 
 own. In Magna Charta itself (1215), the forty-seventh section^ 
 runs thus, " All merchants shall have safe and secure conduct to 
 go out of and to come into England and to stay there, and to 
 pass as well by land as by water, to buy and sell by the ancient 
 and alloiced customs, without any heavy tolls, except in time of 
 war, or when they shall be of any nation at w-ar with us." And 
 the next section defines the rights of alien merchants- in war 
 time. 
 
 In subsequent reigns, especially those of the Edwards, 
 various statutes were passed, expressly " de mercatoribus," 
 securing to them valuable privileges. At a later period, a ques- 
 tion arose whether the "custom of merchants" was to be 
 pleaded as a custom of certain places, or to be regarded as a 
 part of the general law, of which the courts would of them- 
 selves take cognizance. In Peirson v. Pounteys, Yelverton, 135 
 (1609), the court say, " the judges ought to take notice of that 
 which is used amongst merchants for the maintenance of traffic." 
 
 1 Forty-seveuth in Professor Bowen's excellent edition, but usually cited as the 
 thirtieth.
 
 CII. I.] ENGLISH ADJUDICATION WHICH DEFINED THIS LAW. 19 
 
 And in Vanheath v. Turner, Winch's Rep. 24 (1622), Chief Jus- 
 tice Hohart declared that " tlie custom of merchants is part of 
 the common law of this kingdom, of which the judges ought 
 to take notice ; " and he added, " and if any doubt arise to 
 them about their custom, they may send for the merchants to 
 know their custom." And Coke, 1 Inst. 182 a, says that " the 
 lex mercatoria is part of the laws of this realm;" and in 2 Inst. 
 58, in commenting upon Magna Charta, he uses similar lan- 
 guage. 
 
 There also arose another question ; it was, whether the cus- 
 tom of merchants applied to mercantile contracts between any 
 parties, or only to contracts between merchants. At first, the 
 latter view seemed to be held, as in Oaste v. Taylor, Cro. Jac. 
 306, (1613,) where a drawee of a bill was sued on his accept- 
 ance, and it was held that the declaration was insufficient, 
 because it was not alleged therein that the defendant was a 
 merchant at the time of the acceptance. 
 
 A similar doctrine was maintained in Eaglcchildes case, 
 reported in Hetley, 167. This occurred in 1632 ; but in 1634, in 
 Barnaby v. Rigalt, Cro. Car. 301, where the defendant was 
 called a merchant, it was held that the court would intend that 
 he was a merchant at the time. And in 1666, in Woodward v. 
 Rowe, 2 Keble, 105, and afterwards, page 132, it \vas distinctly 
 held, that the custom of merchants was a part of the law of the 
 land, that it attached to the contract, which was a bill of 
 exchange, and that " the custom is good enough generally for 
 any man without naming him merchant." 
 
 Two years afterwards, in an anonymous case, in Hardres, 
 485, (in 1668,) which seems to have been very carefuJiy con- 
 sidered, being declared by the court to be " of weight and con- 
 cern for the future," it was held that a reference to the custom 
 of the realm in the declaration was unnecessary, the Chief Baron 
 adding, "it were worth while to inquire what the course has 
 been amongst merchants, .... for altiiough we must take no- 
 tice in general of tlie law of merchants, yet all their customs we 
 cannot know but by information." It would seem, from these 
 words, that the court would ask merchants to tell them thi; law; 
 and this again might appear so inconsistent with llie duty and 
 the position of the court, that it would be suj)posed that mer-
 
 20 ON THE LAW OF SHIPPING. [bOOK I. 
 
 chants testified only as to the facts for the jury. But in 1649, in 
 Pickering v. Barivley, Style, 132, where to covenant on a charter- 
 party containing the exception " perils of the sea," the defendant 
 pleaded capture by pirates, and the plaintiff demurred bringing 
 up the special question of law, whether this was a peril of the sea. 
 " The court desired to have Granly, the master of the Trinity 
 House, and other sufficient merchants, brought into the court, to 
 satisfy the court viva voccP And on this evidence and sundry 
 certificates, the court decided the law against the demurrer, and 
 in favor of the defendants. 
 
 It is very remarkable how long it continued to be made a 
 question in the courts, whether the lex mercatoria, or custom of 
 merchants, was a part of the law of tlje land, or only a special 
 custom or usage, which affected only those persons, or those 
 agreements, that were alleged, and could be proved to be 
 within it. For many years, and indeed ages, the profession 
 seems to have resisted the doctrine, that it was a part of the gen- 
 eral law of the realm ; but this was held by the courts uniformly 
 and emphatically. 
 
 Twenty-two years after the case in Hardres (1689), there was 
 a demurrer" in Carter v. Downish, 1 Shower, 127, which raised 
 precisely this question, and again it was held that " all this law 
 of merchants is part of the law of the land, and the judges are 
 obliged to take notice of it, as well as of any other law." Ven- 
 tris, one of the justices, said, " You here depend on the law of 
 merchants, which at present, I think, we ought to take notice 
 of." The uncertainty implied in the words " at present," is 
 nearer to a doubt on this subject on the part of the court than 
 we find in any other case. Again, this question was raised two 
 years later (1691), in Mogadara v. Holt, 1 Show. 317, and 12 
 Mod. 15 ; and Holt^ Chief Justice, said, " the time is well enough 
 by the law of merchants, and that is the same with our law." 
 And Eijrcs., Justice, said : " The law of merchants is jus gen- 
 tium^ and we are to take notice of it." And again, three years 
 later (1694), in Willams v. Williams, Carthew, 269, the same 
 question being raised, the rule in Carter v. Downish was em- 
 phatically confirmed ; so also by Lord Holt in Hodges v. Stew- 
 ard, 12 Mod. 36 (in the same year) ; and, four years afterwards, 
 the same question and the same decision may be found in Pink-
 
 CII. I.] ENGLISH ADJUDICATION WHICH DEFINED THIS LAW. 21 
 
 ney v. Hall, 1 Lord Raymond, 175, (1698). Again, in the same 
 year, in Bromwich v. Lloyd, 2 Lutwyche, 1585, and in Hawkins 
 V. Cardy, 1 Lord Raymond, 360. 
 
 In Edie v. The East India Co., 2 Bm-r. 1226 (1760), the 
 com-t spoke in very positive language, as if they would prevent 
 this question from ever being mooted again; Foster, J., saying: 
 " The custom of merchants, or law of merchants, is the law of 
 the kingdom, and is part of the common law. People do not 
 sufficiently distinguish between customs of different sorts. The 
 true distinction is between general customs, which are part of 
 the common law, and local customs, which are not so. This 
 custom of merchants is the general law of the kingdom, part of 
 the common law, and therefore ought not to have been left to 
 the jury after it has been already settled by judicial determina- 
 tions." And Justice Wilmot says : " The custom of merchants is 
 part of the law of England ; and courts of law must take notice 
 of it as such. There may, indeed, be some questions depending 
 upon customs among merchants, where, if there be a doubt 
 about the custom, it may be fit and proper to take the opinions 
 of merchants thereupon." And, after referring to two cases, 
 in which the precise question of this case as to the manner of 
 indorsement was decided, he adds, these two cases " serve to 
 prove that there is no such custom of merchants as the defend- 
 ants pretend ; for they could not have been so determined as 
 they were, if there had been such a custom of merchants. 
 Therefore these judicial determinations of the point are the lex 
 mercatoria as to this question, for they settle what is the custom 
 of merchants ; which custom is the lex mercatoria, which is part 
 of the law of the land." And finally, in Pillans v. Van Mierop, 
 3 Burr. 1669 (1765), Lord Mansfield said: "The law of mer- 
 chants and the law of the land is the same. A witness cannot 
 be admitted to j)rove the law of merchants. We must consider 
 as a point of law." 
 
 There may seem to be an inconsistency on this point. In 
 some of the cases it is said that merchants may be examined ; 
 while Lord Mansfield says that no witness can be admitted. 
 But if the cases are examined, it will be found that the conllict 
 is apparent only. The rule to be gathered from them is (juite 
 clear, and may be stated thus. If there is any question or un- 
 certainty as to what the custom of merchants is, evidence on this
 
 22 ON THE LAW OF SHIPPING. [bOOK I. 
 
 point may be addressed to the court for the purpose of removing 
 doubts from their minds ; but then it is their duty, when they 
 have ascertained what the general custom of merchants is, to 
 consider that as the law of merchants, and therefore as a part of 
 the law of the land, and to recognize it, and apply it accord- 
 ingly. 
 
 It may certainly be regarded as a well-established rule of 
 American law, that this law merchant is an integral part of our 
 own law, equal in its force and authority to any other. But 
 there is still another principle in regard to the law mei'chant, 
 which needs a more profound recognition, a fuller development, 
 and a more constant recollection. It is, that the law merchant is 
 not so much a branch of our municipal law as of public law. 
 It belongs to both ; and stands in such a relation to both, that 
 the municipal law must constantly look to the law of nations for 
 instruction and guidance in relation to it ; or, in other words, 
 the common law of any country adopts it from the common law 
 of the world, and must not forget its origin. 
 
 In Molloy's work, de Jure Maritimo et Navali, he says, B. 3, 
 c. 7, s. 15 : " Merchandise is so universal and extensive, that it is 
 in a manner impossible that the municipal laws of any one 
 realm should be sufficient for the ordering of affairs and traffic 
 relating to merchants. The law concerning merchants is called 
 the law merchant from its universal concern, whereof all nations 
 do take special knowledge." And the same idea is expressed in 
 some of the cases from which we have already quoted, where it 
 is said that the lex mercatoria is a part of i\^ejus gentium. This 
 doctrine is of great practical importance. If it had been more 
 freely admitted in English jurisprudence, their law of shipping, 
 especially in relation to liens, would have escaped some em- 
 barrassment and some uncertainty, much of which we are free 
 from. 
 
 This principle recommends itself so strongly, and equally on 
 •the grounds of justice and expediency, that its early and general 
 recognition is not surprising. There is a remarkable passage in 
 the Pandects, \\'hich we think bears strongly upon it. In the 
 title de Lege Rhodia de Jactu, to which we have already referred, 
 Dig. L. 14, tit. 2, § 9, occurs what we should call a case stated to 
 the Emperor Antonine, calling for a decision. The answer is, 
 " I, indeed, am lord of the world ; but the law is (the lord) of
 
 en. I.] ENGLISH ADJUDICATIOX AVniCH DEFINED THIS LAW. 23 
 
 the sea. Whatever the Rhodian la\v prescribes in the premises, 
 let that be adjudged." Here is precisely the distinction we would 
 suggest. The imperial despotism of Rome, while asserting its 
 absolute and universal sovereignty, acknowledges that the an- 
 cient code of the little island of Rhodes, because it had been 
 sanctioned and established by long usages among all whose 
 business is on the sea, must govern there. So, too, we find the 
 later codes, of Oleron, and Wisbuy, and the Consolato, for 
 example, made not for one state or nation, but for all ; and im- 
 posed upon them, not by the authority of a sovereign right, but 
 by the sanction of a sovereign custom. 
 
 So should it be. We may well hope, for not theory only but 
 history begins to promise this, that the great function of com- 
 merce is to bring the nations of the world together. Of the 
 splendor and wealth derivable from commerce, there were exam- 
 ples in the earliest ages, even before Tyre ; but they were very 
 limited in their influence and in their duration. In that olden 
 time, the same word sometimes meant a stranger and an enemy. 
 In Greece the merchant was a pirate when occasion offered. 
 He was better than this in Rome, but commerce held no high 
 position there. In the middle ages, it began to assert its worth 
 and dignity, and the greatest perhaps of the ]\Iedici was too 
 proud of his success as a merchant, to permit that any other 
 title should be added to his name. Still more lately, commerce 
 has grown stronger, and with its strength its good influence has 
 grown also. And, not to pause upon iUustrations which might 
 be drawn in great numbers from intermediate history, we may 
 well believe that the great commerce, which now bridges the 
 Atlantic, operates powerfully, and we may hope that it will oper- 
 ate successfully, to preserve the peace, — this peace so fertile of 
 all good, — between the old world and the new. If, in the 
 beginning of mankind, it was much that the family gathered its 
 members into one fold ; and if it was a later step which gath- 
 ered families into states, tliis may not be the last step. The 
 reasonable, as well as the hopeful, must be permitted to regard 
 it as within the wide circle of possibility, that all states and 
 nations may be gathered into one brotherhood of man. And if 
 this — dream, perhaps it maybe called — should ever become 
 fact, assuredly commerce will be one of the most potent of the 
 instruments by which so great a good shall be wrought.
 
 24 ON THE LAW OF SHIPPING. [BOOK I. 
 
 The commerce of the world has reached at this moment an 
 enormous development. It may well seem to us that it can go 
 no further; that it stands on its culminating point. But it is 
 more probable that the future will regard only as the begiiming, 
 that which may seem to us a consummation. Assuredly the 
 growth and extension of commerce, its conformity with the 
 essential principles of justice and of reason, and with the needs 
 and the progress of mankind, and, indeed, all its prosperity and 
 all its utility, from the highest to the lowest ground, will be 
 advanced by constantly regarding the laws of commerce as 
 intended to be universal ; and, therefore, by respecting what 
 in them is universal, in preference to that which is local and 
 limited, and by giving to all questions that answer which shall 
 make the principle or precedent resulting from it conform most 
 perfectly with those which the nations have already settled by a 
 general usage. 
 
 That the common law has already done this to a very great 
 degree, and that it has not done this perfectly, has been already 
 intimated. And it may not be out of place to close this sketch 
 of the history of the laws of commerce, with the hope, that it 
 may be one of the effects of the established freedom of this 
 country that we may set such an example of wide and far- 
 reaching sagacity in our shaping of the laws of commerce, that 
 the nations of the world may join with us effectually in making 
 the law merchant the law of the whole world.
 
 en. II.] OF THE HISTORY OF THE REGISTRY ACTS. 25 
 
 CHAPTER II. 
 
 OF THE REGISTRY AND NAVIGATION LAWS. 
 
 SECTION I. 
 
 OF THE HISTORY OF THE REGISTRY ACTS. 
 
 We have seen in the preceding chapter, that the common law 
 of England, from which that of America is derived, was 
 formed while the great mass of valuable property consisted of 
 land, and things fixed to the land. Negotiable choses in action 
 and all those interests, represented and transferred by means of 
 certificates and scrip, were either unknown or little used ; and 
 movables, or personal property in possession, constituted but a 
 small portion of the wealth of the country. Hence the law of 
 personal property is of comparatively recent origin ; and only of 
 late has it assumed that systematic and scientific form which 
 now belongs to it. 
 
 Between these two, — the law of real property, and the law of 
 personal property, — and differing in some particulars from both, 
 is the law of shipping. That a ship is personal property, and 
 not real property, is certain ; ^ but it is a very peculiar kind 
 of property, both in fact and in contemplation of law ; and this 
 was true in very ancient systems of law,^ zilthough neither com- 
 merce nor its great instrument, the merchant ship, had then 
 reached any thing like the importance and magnitude they have 
 now attained. 
 
 We have said the ship is the great instrument of commerce ; 
 and as England, from its insular, and otherwise favorable posi- 
 tion, found its commerce becoming one of the most important 
 sources of its power and prosperity, the laws we have mentioned 
 
 1 Roccus, note xxxviii. ; Jacobscn's Sea Laws, 21. 
 
 2 See Jacobsen's Sea Laws, itt sujira. 
 
 3
 
 26 ON THE LAW OF SHIPPING. [bOOK I. 
 
 in the previous chapter were enacted some centuries ago, provid- 
 ing, with great precision, for the nationality of the ship, and the 
 trustworthiness and preservation of the evidence of that nation- 
 ality. These laws are usually called The Registry and Naviga- 
 tion Laws. It is said that they originated in their present form 
 some two hundred and fifty years ago, in the desire of Spain to 
 preserve for herself the valuable commerce of her colonies in 
 America.^ In England, they may be regarded as beginning sub- 
 stantially with the 12 Car. 2,c. I8.2 
 
 The principal purpose of this and subsequent statutes was to 
 prevent other nations from having the carrying trade between 
 England and her colonies, and between other countries and 
 England ; and it was therefore provided, that only British ships 
 should carry merchandise between England and her colonies, 
 and that no merchandise should be brought from foreign coun- 
 tries to the British dominions, except by British vessels, or the 
 vessels of the countries, of which the goods imported were the 
 growth.^ No vessel was to be deemed British, unless wholly 
 built somewhere in the British dominions, excepting only those 
 condemned and sold as prize;* and if a British ship became by 
 any sale the property of an alien, it could not afterwards become 
 a British ship again, by resale to a British subject.^ 
 
 In order to secure to British ships these advantages, and to 
 the British nation this monopoly, an exact and almost severe 
 system of registration was adopted, and has remained in force, 
 with bat little change, for nearly two centuries. In 1850, how- 
 
 1 Eeeves's History of the Law of Sliippiiig, p. 35. See also 2 BroM-ne's Civil and 
 Admiralty Law, p. 125. 
 
 - Tl>e finst statute passed for the benefit of navigation was the 42 Ed. 3, which 
 enacted tliat all ships of England and Gascoigne which came into Gascoigne should be 
 first freighted to bring wines into England before all other. This being, however, of 
 but little importance, the statute of 5 Rich. 2, St. 1, c. 3, which provided that none of the 
 king's subjects should thenceforth ship any merchandise in going out or coming within 
 the realm of England, except in English ships, under penalty of forfeiting the mer- 
 chandise or the value of it, has been considered as the primary one. Stat, of G Rich. 2, 
 c. 8, enacted that this law should only apply, " as long as ships of the said liegeance 
 were to be found able and sufficient in the parts where the merchants happened to 
 dwell." Eor various subsequent statutes on this subject, prior to Stat. 12 Car. 2, c. IS, 
 see the valuable treatise of Mr. Reeves on the History of the Law of Shipping. 
 
 3 12 Car. 2, c. 18, § 1. 
 
 * 13 & 14 Car. 2, c. 11, § 7. 
 
 5 3 & 4 AVill. 4, c. 55, § 9.
 
 en. II.] OF THE HISTORY OF THE REGISTRY ACTS. 27 
 
 ever, by the 12th and 13th Victoria, c. 29, the principle of " free 
 trade " was, partially at least, introduced into the navigation 
 laws ; for it was provided, that ships, other than those of British 
 build, may become British ships by register, if wholly owned by 
 British subjects ; and all ships may bring to England all mer- 
 chandise, excepting that the queen (or king) of England, in 
 council, may interpose against the commerce, or against the 
 ships, of any country, such duties, charges, restrictions, or pro- 
 hibitions, as will put the ships of those countries in British ports 
 on the same footing on which British ships stand in the ports of 
 that country. 
 
 The principal acts of registry and navigation in this coun- 
 try are those of December 31, 1792, entitled " An act concerning 
 the registering and recording of ships and vessels;" ^ of Febru- 
 ary 18, 1793, entitled " An act for enrolling and licensing ships 
 or vessels to be employed in the coasting trade and fisheries, and 
 for regulating the same ; " ^ and of March 1, 1817, entitled " An 
 act concerning the navigation of the United States." ^ By this 
 last act, it is provided that no merchandise shall be imported 
 into the United States from any foreign port or place, except in 
 vessels of the United States, or in vessels wholly belonging 
 to citizens of the country, of which the merchandise is the 
 growth or manufacture ; or from which such goods, wares, or 
 merchandise can only be, or most usually are, first shipped for 
 transportation ; under penalty of forfeiture of ship and cargo. 
 And no merchandise whatever shall be imported from port to 
 port of the United States in any foreign ship, (other than those 
 imported in such vessel from some foreign port, and which shall 
 not have been unladen,) under penalty of forfeiture of the mer- 
 chandise. But it is provided, also, that this regulation shall not 
 extend to the vessel of any foreign nation which has not a simi- 
 lar regulation in force. In an appendix to this volume, we shall 
 give the principal statutes now in force ; and it will be seen that 
 we have not as yet relaxed our navigation laws, so far at least 
 as to permit foreign built ships to become our own, or foreign 
 ships to share in the advantages derived by our own from their 
 nationality, in any degree. 
 
 1 Ch. 1, 1 U. S. Stats, at Large, 287. 2 ch. 8, 1 U. S. Stats, at Large, 305. 
 
 3 Ch. 31, 3 U. S. Stats. .It Large, 351.
 
 28 ON THE LAW OF SHIPPING. [BOOK I. 
 
 SECTION II. 
 
 WHAT SHIPS MAY BE REGISTERED, AND WHAT ENROLLED. 
 
 The first registry act of 1789 ^ provided that any ship or 
 vessel built within the United States, and belonging wholly to a 
 citizen or citizens thereof, or not built within the United States, 
 but on the 16th May, 1789, belonging, and thereafter continuing 
 to belong, to a citizen or citizens thereof, and of which the mas- 
 ter is a citizen thereof, may be registered as directed in the 
 statute. And, being so registered, shall be deemed a vessel of 
 the United States. The twenty-second section of this act pro- 
 vides that vessels which come under the preceding description, 
 and are of twenty tons burden or more, if destined for the 
 coasting trade or fisheries, and not registered, must be enrolled, 
 in order to enjoy the privileges of a ship of the United States. 
 
 This act, after a slight amendment by a suppletory act passed 
 at the same session,^ was repealed by the 30th section of the 
 act of December, 1792.^ But this last statute begins with pro- 
 viding, that all vessels registered under the provisions of the 
 former act shall continue to be considered vessels of the United 
 States, as long as they are wholly owned and commanded by a 
 citizen or citizens of the United States. 
 
 This statute is now in force. It provides that all ships or ves- 
 sels built within the United States, whether before or after July 
 4, 1776, or not built in the United States, but on and after the 
 16th May, 1789, belonging wholly to a citizen or citizens of the 
 United States, may be registered as therein directed. Also, all 
 shij)S or vessels hereafter captured in war by a citizen or citizens 
 of the United States and lawfully condemned as prize ; also, all 
 that are adjudged to be forfeited for a breach of the laws of the 
 United States. 
 
 To all these classes, the requirement is expressly attached, that 
 they must be owned wholly by citizens of the United States. 
 And there is an express proviso, that no such ship or vessel 
 
 i Cn. 11, 1 U. S. Stats, at Large, 55. 2 ch. oo, i U. S. Stats, at Large, 94. 
 
 » Ch. 1, 1 U. S. Stats, at Large, 287, 299.
 
 CII. IL] "WHAT SllirS MAY BE REGISTERED AND ENROLLED. 29 
 
 shall be so registered, or if registered shall be entitled to the 
 benefi^ts of registry, if owned in whole or in part by any citizen 
 of the United States, who usually resides in a foreign country 
 during the continuance of such residence; unless he be a consul 
 of the United States, or a member of, or an agent for, some house 
 of trade or copartnership consisting of citizens of these States 
 who are actually carrying on trade within the States. And by 
 the act of March 27, 1804, § 1,^ it is provided that no vessel is 
 entitled to registry, or to the benefits of registry, if owned by a 
 non-resident naturalized citizen, who resides more than one year 
 in the country from which he originated, or more than two years 
 in any foreign country, unless he be a consul, or other public 
 agent of the United States. 
 
 If any registered ship shall be sold or transferred, in whole or 
 in part, in trust, confidence, or otherwise to a subject or citizen 
 of any foreign state or prince, and the transfer is not made 
 known to the collector and her register delivered up within seven 
 days after the transfer, if in port, or within eight days after her 
 arrival in the United States, if she were absent when sold, she 
 shall be forfeited.^ 
 
 The 22d section of the first statute of registration, that of 
 1789,5 provides that ships, not registered, but destined for the 
 bank or whale fisheries, or " from district to district," meaning 
 the coasting trade, may be enrolled ; and then follow certain 
 provisions in respect to enrolment. This was afterwards 
 deemed so important, that these two subjects were provided for 
 in distinct statutes; that of Dec. 31, 1792,* above referred to, 
 speaks only of registration. And at the same session was 
 enacted the statute of Feb. 18, 1793,^ which relates only to 
 enrolling and licensing ships for the coasting trade and fisheries. 
 It provides, in the first place, that all vessels, which may be 
 registered, may be enrolled, and in a similar w'ay, and a certifi- 
 cate given, which diflcrs from t]ie certificate of registry only in 
 substituting the word "enrolment." Under this statute (sect. 
 8), a vessel that is only enrolled and licensed cannot proceed on 
 
 1 Ch. 52, 2 U. S. Stats, at Large, 2'JG. 
 
 2 Act of 1792, ch. 1, § 16, 1 U. S. Stats, at Large, 287, 295. 
 ^ CIi. 2, 1 U. S. Stats, at Large, CO. 
 
 * CIi. 1,1 U. S. Stats, at Large, 287. 
 ^ Ch. 8, 1 U. S. Stats, at Largo, 305.
 
 30 ox THE LAW OF SHIPPING. [BOOK I. 
 
 a " foreign voyage," without giving up her certificate of enrol- 
 ment and her license, and being .duly registered ; and. by a 
 breach of this law, the vessel and cargo become liable to for- 
 feiture. From the fear that the whale fishery, which carries a 
 vessel round the world, might be deemed a " foreign voyage " 
 within this prohibition, a custom grew up of considering whalers 
 as not bound on a foreign voyage. By the Statute of 1803, 
 ch. 9,^ the master of any vessel bound on a foreign voyage is 
 required to give a bond for four hundred dollars, that the certi- 
 fied copy of the list of the crew shall be delivered to the first 
 boarding officer, at the first port in the United States, at which 
 he shall arrive on his return home, and produce the persons, etc. 
 Of this act we shall speak again, in reference to seamen. We 
 advert to it now, only to remark, that in 1839 the master of a 
 whaling ship having incurred tlie penalty of this bond, and, being 
 sued, took the defence that it had been improperly required, as 
 the ship had not been " bound on a foreign voyage." 
 
 The question came before Judge Story, and he decided that a 
 whaling vessel was not bound on a foreign voyage, however far 
 it might be the intention of her owners that she should go. 
 Because, a foreign voyage meant a voyage to some definite for- 
 eign port or ports, for pm-poses of trade. No part of the ocean 
 was foreign to us ; only a port of another country could be so. 
 And, even if a whaling ship proposed to enter into one or 
 another distant port for the purpose of refitting, or otherwise 
 supplying the exigencies of a whaling voyage, this did not make 
 it a foreign voyage." ^ In 1838, Judge Story also decided that 
 no registered ship can engage in the whale fisheries, without first 
 surrendering her register, and being enrolled and ficensed for the 
 fisheries. And he quashed an indictment for a revolt on board 
 such a ship, on the ground that it was not an American vessel.^ 
 But, on the other hand, Judge Betts, in the same year, held that 
 a ship, with a register, might be legally employed on a whaling 
 
 1 2 U. S. Stats, fit Large, 203. 
 
 2 Taber 1-. United States, 1 Story, 1. The action was debt on a bond given by 
 the master of a whaling ship to the collector of the customs for the district of Xew 
 Bedford. The vessel was about to sail on a whaling voyage, and the bond was given 
 for the purpose of obtaining a clearance. It was held that no action could be main- 
 tained on it. 
 
 3 United States v. Rogers, 3 Sumn. 342.
 
 CH. II.] AVHAT SHIPS MAY BE REGISTERED AND ENROLLED. 31 
 
 voyage without taking out a license.^ In consequence of these 
 decisions, an act was passed in 1840 (ch. 6),^ providing that 
 whalers, if registered, should be held to have lawful and suffi- 
 cient papers, and, if only enrolled and licensed, should be deemed 
 as effectually protected as if registered, if the voyages were com- 
 pleted, or until they were completed. 
 
 Only vessels of twenty tons or more need to be enrolled and 
 licensed. Those under twenty tons may be licensed only. 
 Stat. 1793, ch. 52.3 
 
 The 20th section of the Act of 1792,'* provides that vessels 
 built in the United States after 15th August, 1789, belonging 
 wholly or in part to the subjects of foreign powers, in order to 
 be entitled to the benefits of a ship built and recorded in the 
 United States, shall be recorded in the office of the collector of 
 the district in which the ship is built. 
 
 No ship can be registered anew as an American vessel, al- 
 though of American build, and owned by an American citizen, 
 unless it has been transferred to him by a bill of sale containing 
 a certificate of the former registry. The language of the statute 
 on this subject is : " In every such case of sale or transfer, there 
 shall be some instrument of writing, of the nature of a bill of 
 sale, which shall recite, at length, the said certificate ; otherwise 
 the said ship or vessel shall be incapable of being so registered 
 anew." It follows, therefore, that the character and privileges of 
 an American vessel are lost by a sale or transfer without the 
 required instrument in writing, or are suspended until such 
 instrument is made, and a new register thereupon granted.^ 
 
 It is not very uncommon for private acts to be passed by 
 
 1 United States r. Jenkins, 2 Law Ecportcr, 146, 14S. Both of these cases came 
 up under the act of 1835, ch. 40, which provides that, "if any one or more of the 
 crew of an American ship or vessel on the high seas, etc., sliall make a revolt," he 
 and they shall be punished, etc. It was held by Judge Story, that a ship which 
 engaged in a whaling voyage without having surrendered her register, or taken out an 
 enrolment and license, was not an American ship witliin the purview of this act. The 
 contraiT was decided by Judge Betts. He held that the ownership of the vessel 
 might be proved in the same manner as that of any other chattel. Sec also United 
 States V. Brunc, 2 Wallace, C. C. 264. 
 
 - 5 U. S. Stats, at Large, 370. 
 
 3 1 U. S. Stats, at Large, 305.. 
 
 * 1 U. S. Stats, at Large, 287, 296. 
 
 5 Act of 1792, H-1, 1 U. S. Stats, at Large, 294.
 
 32 ON THE LAW OF SHIPPING. [bOOK I. 
 
 Congress, authorizing the register of foreign ships which be- 
 come in some way the property of American citizens, but which 
 are not entitled to registers under the general law.^ 
 
 SECTION III. 
 
 IN WHAT WAY VESSELS MAY BE REGISTERED, OR ENROLLED. 
 
 The statutes of 1792 and 1793, already referred to, are the 
 principal statutes in relation to this subject, and we give them in 
 full in the appendix. Here we would only remark, that the 
 principal requirements are, that vessels should be registered or 
 enrolled in the district in which is comprehended the port to 
 which the vessel shall belong, which is that, " at or nearest to 
 which," the owner or ship's husband usually resides. That her 
 name shall be conspicuously painted upon her stern. That before 
 registry or enrolment, the collector shall be assured by the oath 
 of the owners, and the certificate of the builder and of surveyors, 
 and, in some instances, of the master, as to the ownership, the 
 build, burden, and description of the ship. And, if a ship, to be 
 owned by foreigners, is to be recorded, in order to obtain the 
 privileges of a ship built and recorded in the United States, 
 similar precautions are required. The oath to be taken by the 
 owner as to the ownership respects only the legal title, so far as 
 concerns citizens of this country ; the disclosure of any equitable 
 interests vested in our citizens is not required ; but only a denial 
 that any subject or citizen of any foreign prince or state is 
 directly or indirectly interested in the ship, or in the profits 
 thereof. 
 
 Previous to the registry of any vessel, the owner and master 
 must give a bond, which is graduated in the amount of the 
 penalty in proportion to the size of the vessel, that the certificate 
 of registry shall be used only for that vessel, and that it shall be 
 delivered up if the vessel be lost, captured, burnt, or broken up, 
 or otherwise prevented from returning to the port to which she 
 belongs. 
 
 1 Sec 9 U. S. Stats, at Large, Private Acts, p. 2, G6, 154.
 
 CH. II.] HOW VESSELS MAT BE REGISTERED. 33 
 
 Steamboats may be registered or licensed in the name of the 
 president or secretary of an incorporated company, without 
 designating the names of the persons composing the company ; 
 but no part of such a vessel can be owned by a foreigner.^ 
 
 Vessels employed in the whale fishery, if owned by an incor- 
 porated company, may be registered in a similar way, as long as 
 they are wholly employed in that fishery.^ 
 
 Any vessel which is entitled to registry, and is in a port other 
 than that to which she belongs, may be registered at that port. 
 This, however, is only a temporary register, and must be sur- 
 rendered and cancelled when she arrives at the port to which she 
 belongs, and a permanent register granted.^ If the master of a 
 registered vessel be changed, the name of the new master is 
 indorsed upon the register, upon his making oath that he is a 
 citizen of the United States.^ 
 
 If any register be lost, the master of the vessel may make oath 
 to the fact, and obtain a new one.^ 
 
 As every register must state accurately the ownership, and 
 the form and burden of the vessel, if a registered vessel be 
 sold, in whole or in part,^ to a citizen of this country, or be 
 altered in her form or in her burden, the old register must be 
 delivered up, and a new one taken out, or the vessel is no longer 
 entitled to the privileges of a vessel of the United States. If the 
 sale take place in a district, other than that to which she belongs, 
 a temporary register may be there giVen, to be exchanged for 
 a permanent one when she reaches her home port, in the same 
 way as is done in respect to the original register.' So, too, if 
 a ship be bought by an agent or attorney for a citizen of the 
 United States, in a district more than fifty miles from that to 
 which she belongs, she shall be temporarily registered there, 
 until her arrival at her home port.^ 
 
 By the act of June 27, 1797,^ it was provided, that no regis- 
 
 1 Act of March 3, 1825, ch. 99, 4 U. S. Stats, at Largo, 129. 
 
 2 Act of INIarch 3, 1831, cli. 115, 4 U. S. Stats, at Large, 492. 
 
 3 Act of 1792, ch. 1, § H, 1 U. S. Stats, at Large, 292. 
 « Act of 1792, ch. 1, § 23, 1 U. S. Stats, at Large, 297. 
 6 Act of 1792, ch. 1, § 13, 1 U. S. Stats, at Large, 294. 
 e Act of 1792, ch. 1, § 14, 1 U. S. Stats, at Large, 294. 
 T Act of 1792, ch. 1, HI, 1 U. S. Stats, at Large, 292. 
 8 Act of 1792, ch. 1, § 12, 1 U. S. Stats, at Large, 293. 
 3 Ch. 5, 1 U. S. Stats, at Large, 523.
 
 34 ON THE LAW OF SHIPPING. [bOOK I. 
 
 tered ship, which should be seized, or captured and condemned, 
 under the autiiority of a foreign power, or by sale become the 
 property of a foreigner 'or foreigners, should be entitled to or 
 become capable of a new register, although the vessel afterwards 
 became American property. There is, however, a proviso that 
 the act shall not afiect those who own any ship or vessel at the 
 time of her seizure or capture, or prevent such owner in case he 
 regain a property in such vessel, so condemned, by purchase or 
 otherwise, from claiming and receiving a new register for the 
 same. 
 
 It will be seen that the proviso appears to be limited to vessels 
 captured and condemned, and, in that way, passing into the pos- 
 session of foreigners, and that, as to all others, the statute puts 
 an American ship, which has once becorne the property of a 
 foreigner, for ever after on the footing of a foreign built ship. 
 The statute, however, has been construed otherwise, at least in 
 one case. A valuable vessel belonging to Calais, Maine, was 
 wrecked on the coast of the British provinces, there condemned 
 as wreck, and sold and bought "by Englishmen ; and the insurers 
 paid for her. But, by a very favorable turn of wind and tide, 
 she was got off at little expense, and found to be but slightly 
 injured. At that time, however, she could not obtain a register 
 as an English vessel, and certainly not as an American vessel, if 
 sold to a new American owner. But her English purchasers 
 brought her to Calais, and there sold her to her original owners, 
 who were the only persons who could buy her and have a regis- 
 ter, and who paid for her but a small price. And, in their hands, 
 she continued to be registered as an American vessel. This case 
 has not been reported. 
 
 SECTION IV. 
 
 OF THE EFFECT OF REGISTRY OR ENROLMENT. 
 
 The statutes of registry and enrolment are now somewhat 
 numerous and complicated; and those of 1792 and 1793 are 
 very long, and go into a great variety of details. For these we 
 must refer to the Appendix, where will be found all these stat- 
 utes. Here we only remark, that enrolled vessels must be
 
 en. II.] EFFECT OF REGISTRY OR ENROLMENT. 35 
 
 licensed annually for the employment or business in which they 
 are to engage, and this is stated in the license, and they are not 
 authorized by it to engage in any otlfer; and if they be found 
 with a forged or altered license, or making use of a license 
 granted to any other ship or vessel, the vessel and cargo are for- 
 feited. 
 
 These words, however, do not apply to a vessel licensed for 
 one thing and doing another thing under her license ; it would 
 seem, therefore, that such a vessel is only not entitled to the 
 privileges of a vessel of the United States. 
 
 If they are in a port other than that to which they belong at 
 the time when their license expires, they may there obtain tem- 
 porary registers. All licenses must be renewed within three 
 days after they expire, or within three days after the vessel's 
 arrival at a port, if they expire while she is at sea. A registered 
 vessel may engage in the coasting trade, becoming thereafter 
 subject to the regulations provided for coasting vessels ; and 
 an enrolled and licensed vessel, if bound on a foreign voyage, 
 may be registered. 
 
 We have quoted but a small part of the requirements of these 
 statutes. It must, however, be obvious, that all this complica- 
 tion between the registering and enrolling of vessels, and these 
 frequent changes, must cause a gi'eat deal of trouble, not to say 
 embarrassment, which should be avoided, if this can be done 
 without sacrifice or greater inconvenience. When they were 
 originally enacted, and for some time afterwards, heavy tonnage 
 duties were levied, in certain cases, which were thought to con- 
 stitute quite an important part of the revenue. These are prac- 
 tically abolished, or nearly so. The details and exact provisions 
 to which we have referred were perhaps necessary to carry all 
 the original objects of these statutes into effect. But it is, we 
 believe, a general opinion among commercial men, that they are 
 not necessary now, and that all the advantages and securities of 
 our navigation laws would be preserved, and in a far simpler 
 and more convenient way, if but one register were given to all 
 vessels, whether engaged in the for^gn or in the coasting trade, 
 or in the fisheries. This might be permanent, and all transfers 
 of title, and all interests and ownershij), in part or in whole, and 
 all such changes of employment, as it should be thought neces- 
 sary to notice, might be indorsed upon the register.
 
 36 ON THE LAW OF SHIPPING. [BOOK I. 
 
 Our statutes do not positively require any registration or 
 enrolment of any vessel. The owner of a ship may keep it 
 lying at a wharf until it* shall decay there, and not violate any 
 law. But until he registers or enrolls his ship, she is not an 
 American vessel. Nor, indeed, can he carry on in her any trade 
 whatever, because she can have neither the papers nor privileges 
 of a foreign ship, nor of an American ship. If she engages 
 either in the foreign or coasting trade, or fisheries, she is liable 
 to forfeiture. These disadvantages and disabilities^ springing 
 from the want of a register, are quite sufficient to make an exer- 
 cise of the right of obtaining registry universal. A similar 
 practice exists, under similar requirements, in nearly all commer- 
 cial and civilized nations. And probably no vessel of any mag- 
 nitude now sails the ocean without having documents on board 
 to prove her nationality and ownership. 
 
 It may be well to remark, that an act of congress passed 
 March 5, 1856, authorizes the secretary of the treasury to 
 change the name of any vessel, when, in his opinion, good cause 
 exists therefor. 
 
 Some interesting questions under these and later registry acts 
 have passed under adjudication, beside those already presented. 
 Stating these chronologically, we begin with a case which oc- 
 curred the year after the statute of enrolment was passed.^ A 
 schooner, licensed as a coaster, cleared for St. Mary's in Georgia, 
 but went to Port-de-Paix, and was there sold to a French- 
 man by the master, by order of the owner. Upon her return to 
 South Carolina, she was libelled, and decreed to be forfeited ; the 
 court recognizing a distinction between the two acts, because that 
 for registering permits sales of vessels at sea, or in a foreign 
 port to foreigners, while the act for enrolment and license pro- 
 hibits a sale to foreigners altogether. But it was also said that 
 a licensed owner might dispose of his vessel as he would, upon 
 delivering up his license. 
 
 In 1805, upon a sale of a licensed vessel to an alien in Phila- 
 delphia, it was said,2 that if a sea vessel (meaning a registered 
 vessel) is assigned to a foreigner, she loses the privileges of an 
 
 1 United States v. Schooner Hawke, Bee, 34. 
 
 2 Philips V. Ledley, 1 Wash. C. C. E. 226.
 
 CH. II.] EFFECT OF KEGISTRY OR ENROLMENT. 37 
 
 American bottom ; but if a coasting- vessel, (meaning one en- 
 rolled and licensed,) be so sold, the sale is not void, but the ves- 
 sel is liable to forfeiture. 
 
 In 1806,^ a vessel was forfeited because a false oath was taken 
 to procure a register. The interesting question arose, when and 
 by what means the property in a forfeited vessel vested in the 
 tJnited States. And it was held that the United States might 
 elect to proceed against the vessel as forfeited, or against the 
 party taking the false oath for its value. But that unless, and 
 until, process for forfeiture is begun, the property in the vessel 
 does not vest in the United States. Therefore, the vessel hav- 
 ing been sold to the assignees of the party taking the false oath, 
 and they having sold the vessel, and received the proceeds in 
 trust for his creditors, the United States could not maintain an 
 action for money had and received against the assignees. 
 
 In 1807,2 r^ ship, Avhile at sea, was sold in part to an Ameri- 
 can citizen, but was not registered anew. And, after the arrival 
 of the ship in Philadelphia, she was resold by the purchaser to 
 the original owners, before any report or entry. And it was 
 held that the ship did not thereby lose her privilege as an Amer- 
 ican ship, or become subject to foreign duties. 
 
 In 18] 4,'^ of two partners, in a commercial house doing busi- 
 ness in New York, one, Lenox, resided in New York, the other, 
 Maitland, was a resident merchant of Great Britain. To 
 obtain a register, Lenox made oath in New York, that he, "to- 
 gether with W. Maitland, of New York," were the only owners. 
 At that time, Maitland was domiciled in Great Britain. The 
 court held that the vessel was subject to forfeiture, although the 
 oath was taken innocently, and in ignorance of the character 
 imparted to Maitland by his residence in England. 
 
 In 1815,4 [I ^ya,s decided, that, if the master of an American 
 ship be an American citizen resident abroad, the ship does not 
 thereby lose her right to pay only domestic duties. But that if 
 such a person be the owner of a vessel, it cannot be entitled by 
 registry to the privileges of a vessel of the United States. 
 
 1 United States v. Grundy, 3 Craiich, 337. 
 
 - United States v. Willinps, 4 Cranch, 48 ; s. c. 4 Dall. 374. 
 
 3 The Venus, 8 Cranch, 253. 
 
 * United States v. Gillies, Peters, C. C. R. 159.
 
 38 ON THE LAW OF SHIPPING. [lOOK I. 
 
 In 1818/ it was decided, in a somewhat curious case, that the 
 provisions of the 27th section of the Act of 1792,2 that a ship 
 shall be forfeited if any certificate of registry or record shall be 
 fraudulently or knowingly used for her, to the benefit of which 
 she is not then actually entitled, apply as well to vessels, which 
 have never been registered, as to those, to which registers have 
 been previously granted. 
 
 In 1824,^ it was held, that, if a registered vessel be transferred 
 in a foreign port to an alien, for the purpose only of evading the 
 revenue laws of a foreign country, and with an understanding 
 that, when this purpose is accomplished, she shall be reconveyed 
 to the original owner, the vessel is liable to forfeiture under the 
 16th section of the act. And if she continues to use her orisfinal 
 register after such transfer, she is liable to forfeiture under the 
 27th section. 
 
 In 1826,'^ it was decided, that, as the original register is re- 
 quired by law to be transmitted to the register of the treasury, 
 when a vessel is lost; and, as this register is to be then can- 
 celled, but not destroyed, it is a document which the law re- 
 quires to be deposited and preserved in the register's office. 
 And it was also said, that, in a time of universal peace, the reg- 
 ister is the only document which must be on board, to satisfy a 
 warranty of national character. 
 
 In 1835,^ occurred a case of some interest, from its peculiar 
 facts. The United States sought to enforce a forfeiture against 
 a brig, of which it was alleged that a Spaniard, resident in Cuba, 
 was an owner or part-owner, under cover of the name of an 
 American citizen. Many circumstances indicated this, and had 
 a strong tendency to prove it. But the court said, that, the pros- 
 ecution being highly penal, the infractions of the law must be 
 established beyond reasonable doubt. And that, although most 
 ingenious frauds are often practised under our revenue laws, 
 such acts cannot alter the established rules of evidence. 
 
 In 1839,^ it was found that enrolments in a certain custom- 
 
 1 The Neptune, 3 Wheaton, 601. 
 
 " Ch. 1, 1 U. S. Stats, at Large, 287, 298. 
 
 3 The Margaret, 9 Wheaton, 421. 
 
 * Catlett r. Pacific Ins. Co., 1 Paine, C. C. E. 594. 
 
 5 United States v. The Brig Burdctt, 9 Peters, 682. 
 
 t' United States v. Bartlett, Daveis, 1 .
 
 en. II.] EFFECT OF REGISTRY OR ENROLJMEXT. 39 
 
 house were occasionally made, as matter of convenience, on the 
 oath of the master only. But, on such a case coming before the 
 District Court of Maine, it was held that such an enrolment 
 was wholly void ; and could not confer upon the vessel the 
 rights and privileges of a vessel of the United States. 
 
 In 1846,1 g^ ga.se came up under the first section of the Act of 
 March 1, 1817, (3 U. S. Stats, at Large, 351,) which provides that 
 goods shall not be imported from any foreign port, except in ves- 
 sels of the United States, or in such foreign vessels as belong to 
 the citizens of that country of which the goods are the groivth, etc. 
 The question arose, whether goods, the growth or production of 
 the East Indies, could be brought to this country in English 
 ships. It was held that they might, because by country was 
 nipant the entire nation, and not merely a section or portion of 
 territory belonging to the nation. 
 
 It is important to remember, that presentation to the cus- 
 tom-house for registration is wholly voluntary ; and that the 
 owners of the ship present it for registration, only to secure to 
 themselves certain benefits or privileges thereby. For this cir- 
 cumstance assists in determining some of the numerous and 
 difficult questions, which have arisen in reference to the force 
 and authority of the register, as a record, as public notice, or as 
 evidence of ownership or interest, or the want of it. Thus, if 
 one claims to prove his title by the fact that his ownership ap- 
 pears on the register, it may be answered that he caused it to be 
 there by his own act, and cannot in this way make evidence for 
 himself. 
 
 On the other hand, if he wishes to prove his interest when his 
 name is not there, or if another wishes to charge him as owner 
 by proof outside of the register, which does not show him to be 
 an owner, it may be said that registration is no necessary inci- 
 dent to ownership, and therefore the want of registration or of 
 any name in the register justifies no conclusion against the own- 
 ership. And, in general, as the law simply offers to registered 
 ships certain privileges, which are exactly defined, it is not will- 
 ing to recognize in the fact of registration, any other efficacy 
 than that of imparting these privileges, or to permit the absence 
 
 1 United States v. The Ship Recorder, 1 Blatchf. C. C. R. 218.
 
 40 ox THE LAW OF SHIPPING. [BOOK I. 
 
 of registration to have any other effect than merely to prevent 
 these privileges from attaching to the ship. 
 
 On the other hand, registration is founded on the oath of the 
 party, and is a solemn act of the law, and it is not reasonable to 
 make it wholly insignificant. And, an eminent judge in Eng- 
 land, (Lord Eldon,) has intimated that the registry laws of that 
 country have, as one of their purposes, the identification of 
 property.^ 
 
 The questions of this kind, which have arisen, are very many, 
 and very various. The whole subject of registration of ships is 
 unlike any thing else required by the law, or known to the law. 
 The register has been offered by a party litigant in cases of sale 
 of ship or goods, of contracts of affreightment, of insurance, of 
 forfeiture, or for breach of law. It would be very difficult to ^- 
 hibit these questions, or the principles which may determine 
 them, aside from the cases in which they arise. And we have 
 preferred to present them together in a note to this passage, in 
 which all the cases are cited and classified, as well as we have 
 been able to do it, and those of most interest examined at some 
 length.2 
 
 1 Ex parte Yallop, 15 Ves. 60. 
 
 2 It appears to be well settled in the English courts, that the register is not to be con- 
 sidered as a pulilic document, or record, but a private instrument, and the mere declara- 
 tion of the party making it. Flower v. Young, 3 Campb. 240 ; Pirie v. Anderson, 4 
 Taunt. 652, 657 (per Hcatli, J.). The object of the British registry acts being to secure 
 to the sliips of Great Britain certain privileges, and not to create new evidence of own- 
 ership in vessels. Baijleij, J., in Tinkler v. Walpole, 14 Eifst, 226, 233. Sec, however, 
 the remark of Lord Chancellor Eldon, in Ex parte Yallop, 15 Ves. 60, that the Ecgistry 
 Acts of 26 Geo. 3, c. 60 ; 34 Geo. 3, c. 68, were drawn upon the policy, that it was for 
 the public interest to secure evidence of the title to a ship, from her origin, to the 
 moment in which you look back to her history. 
 
 Some of the earlier American cases seem to countenance the doctrine, that the regis- 
 ter is a public record or title. Thus, in the United States v. Johns, 4 Dall. 412, which 
 was a prosecution under a criminal statute, a certified copy of a manifest of caryo was 
 admitted in evidence, on the ground, apparently, that the book of manifests, kept by the 
 collector in conformity to the impost laws, was a record. 
 
 So in Coolidge v. New York Firem. Ins. Co. 14 Johns. 315, the court say: — 
 " The record required to be kept by the collector of the registry of sliips or vessels is 
 such a one, that a copy of it, compared with the oi'iginal by a witness who can testify 
 to its being a true copy, would be good evidence of the focts it sets forth." 
 
 But the great majority of the American cases evidently take the same ground as the 
 leading English authorities, and it is expressly stated by Mr. Justice Sajfokl, in Jones 
 V. Pitcher, 3 Stew. & Port. 135, 155, who seems to doubt the authority of United
 
 en. II.] EFFECT OF REGISTRY OR ENROLLMENT. 41 
 
 States V. Johns, supra, tliat the register is not entitled to more credence in this coun- 
 try than iu Great Bi-itain. 
 
 It follows from this ex parte character of the registry, that it is not even prima facie 
 evidence to charge those who are not shown to be parties to it, % their own act or assent, 
 although their names appear upon its face. Flower v. Young, supi-a; Tinkler v. 
 Walpole, U East, 22G ; Baldncy r. Ritchie, 1 Stark. 338 ; Jones i?. Pitcher, si/pra ; 
 1 Greenl. Ev. ^ 494; M'lver v. Humble, 16 East, 169; Eraser v. Hopkins, 2 Taunt. 
 5 ; Cooper v. South, 4 Taunt. 802 ; Piric v. Anderson, 4 Taunt. 652 ; Rands v. 
 Thomas, 5 M. & S. 244. See, however, Stokes v. Came, 2 Campb. 339, where Lord 
 Ellenhorough seemed to think, that, where no notice of an intent to deny the ownership 
 was previously given, the register might be prima facie evidence to charge several pai't- 
 owners, when obtained on the oath of one of them only, although admitting that, had 
 the facts of the case been different, he should have required stricter proof. In JNIyers v, 
 Willis, 17 C. B. 77, 33 Eng. L. & Eq. 204, 209, Jervis, C. J., said : — " It is admitted 
 that the law is now different from what it was formerly, when it used to be considered 
 that the register only was to be looked at, and that it alone was conclusive as to the 
 ownership of the vessel, and conclusive therefore of the liability of the party appearing 
 thereon as owner ; but it is now settled that the question of liability in these cases is to 
 be determined in the same way as in all other cases of contract, by ascertaining with 
 whom the contract was made." This case was affirmed in the Exchequer Chamber, 
 18 C. B. 886, 36 Eng. L. & Eq. 3.'J0. See also Hackwood v. Lyall, 17 C. B. 124, 33 
 Eng. L. & Eq. 211 ; Mitchcson v. Oliver, .'3 Ell. & Bl. 419, 32 Eng. L. & Eq. 219 ; 
 Brodie i-. Howard, 17 C. B. 109, 33 Eng. L. & Eq. 146 ; Mackenzie v. Pooley, 11 
 Exch. 638, 34 Eng. L. & Eq. 486. 
 
 Against the person on whose affidavit it is obtained, the registry may be evidence 
 of the facts recited, being his own declaration made under the sanction of an oath. 
 Cooper r. South, supra ; Pirie v. Anderson, supra, per Chamhre, J. ; Flower v. Young, 
 supra; Hacker v. Young, 6 N. H. 95; Ligon v. Orleans Nav. Co. 19 Martin, 
 La. 682 ; as in favor of his creditors, Bixby r. Franklin Ins. Co. 8 Pick. 86. But 
 to make it so, he must be connected with it by proper proof of the oath. Smith v. 
 Fuge, 3 Campb. 456 ; Jones v. Pitclier, supra. And, where the affidavit had been 
 destroyed by fire. Lord Ellenborowjh held that the register book was not sufficient as 
 secondary evidence of its existence, but that witnesses must be called who had seen the 
 affidavit, and knew it to have been made by the party sought to be charged. Teed i'. 
 Martin, 4 Campb. 90. 
 
 So, the register is not by itself evidence in a suit between third parties, of the 
 national character of the vessel being res inter alios acta. Reussc v. Meyers, 3 
 Campb. 475. And it does not affect the question of property in such a case. Bixby 
 r. Franklin Ins. Co. supra. 
 
 As to some of the facts sworn to, such as the national cliaractcr of the ship at the 
 time of registry, we apjn-ehend tliat the registry and affidavit arc conclusive against the 
 party making them, lie being estopped to deny what he has affirmed under oath. But 
 as to the fact of ownership, the registry in this country is only prima facie evidence 
 against him. Ring v. Franklin, 2 Hall, 1 ; Weston v. Penniman, 1 I\Iason, 306 ; 
 Leonard v. Huntington, 15 Johns. 293; Bixby v. Franklin Ins. Co. supra; Colson 
 f. Bon/oy, 6 Greenl. 474; Lord v. Ferguson, 9 N. II. 380. 
 
 The reason of t^is is, in the first ))Iacc, that the oath requiicd liy the American reg- 
 istry act has been deterniiued to apply ot\ly to the lei/al ownerslii[), so that registry in 
 the name of one person is consistent with an equitable title iu another. Weston i'. 
 Penniman, supra. " The oath required by the Registry Act of 1792, to be taki'U by the 
 owner," says Mr. Justice Stori/, in this case, "respects only the legal ownership of the 
 ])ropcrtv, and does nut require a disclosure of auv c(juita!ile interests vested in citizens 
 
 4* ' •
 
 42 . ON THE LAW OP SHIPPING. [bOOK I. 
 
 of the United States, but only a denial that any subject or citizen of any foreign 
 prince or state is directly or indirectly interested by way of trust, confidence, or other- 
 wise, in the ship, or in the profits or issues thereof. It is suflScient that the legal inter- 
 est is tnily stated ; and if there be any equitable interest or trust in favor of any other 
 citizen of the United States, no fraud is committed upon the law. Suppose a mort- 
 gage made of a registered ship, may not the mortgagee truly declare himself the legal 
 owner, notwithstanding an equitable right of redemption in the mortgagor? " 
 
 See also that a mortgagee may take out a registry in his own name. Ring v. Frank- 
 lin, 2 Hall, 1. 
 
 Such being the case, it follows that the legal owner, as a mortgagee or trustee, is not 
 estopped by the register to show that the actual beneficial ownership is in a third party, 
 and consequently it is not conclusive evidence against him. See Plymouth Cordage 
 Co. V. Sprague, Sup. Jud. Ct. Mass., 2 Law Eeporter, 365. There is an early Con- 
 necticut case, Starr v. Knox, 2 Conn. 215, 222, which maintains a contrary doctrine, 
 namely, that registry is such a publication of ownership to the world as will make the 
 party to it liable as owner, unless the qualified nature of his title as mortgagee appears 
 on the register itself by indorsement or otherwise. But, from the authorities above 
 cited it appears that this would not now be considered law. 
 
 Under the British Registry Acts, 8 & 9 Vict. c. 89, § 37, 38, and 45, the question 
 has arisen whether, if a party, who is the registered o^^^ler, makes a contract to sell the 
 ship, which agreement is not registered, and subsequently transfers the vessel, for a 
 valuable consideration, to a person having notice of the former agreement, who has it 
 duly recorded, the party making the first agreement has any remedy against the ship or 
 its proceeds. In McCalmont v. Rankin, 8 Hare, 1, 2 De G., M'N., & Gor. 403, it was 
 held tliat he had not. So in Combes v. Mansfield, 3 Drewry, 1 93, the builder of a 
 vessel mortgaged her to A, and afterwards by a second mortgage to B. He after- 
 wards had her registered in his own name. The mortgages were never recorded. The 
 ship was then transferred by an absolute bill of sale to B, and a registiy taken out in 
 his name. This was only meant to be a mortgage. To obtain more money, and to 
 pay off B, the builder agreed with B that he should transfer the vessel to C. This 
 was done, and C's name appeared on the registry as owner. C knew of the mortgage 
 to A. Held, that A had no claim against C. The court said : " Now it is clear 
 that, if this were any other species of property, land or leaseholds, or indeed any other 
 kind of property, an}' person taking by a deed an assignment of the legal interest, with 
 notice at the time of a prior equitable charge, would take only subject to that charge. 
 The question is, whether the ship registry acts preclude the application of that doc- 
 trine. The cases in this court are numerous, and they clearly establish this : that a 
 mere contract in writing, however precise and regular, for the purchase and sale of a 
 ship, docs not entitle the purchaser to any relief, either as against the vendor, or as 
 against any other person, who coming afterwards, with knowledge of the contract, takes 
 an assignment of the ship and has it registered." 
 
 In Armstrong v. Armstrong, 21 Beav. 78, shares in a ship, purchased with A's 
 money, were registered in B's name. After A's death, B entered into an agreement 
 with his representatives admitting their right, and for a valuable consideration agreeing 
 to sell the shares at the end of twelve months, and to account for the proceeds. B 
 accordingly sold to C. Held, that though the ship registry act prevented the repre- 
 sentatives enforcing any right against the ship, still they were entitled to recover the 
 purchase-money in the hands of C. In Parr v. Applebee, Kt. Bruce, L. J., 35 Eng. 
 L. & Eq. 218, the owner of a ship, being indebted to a firm, mortgaged it to A. B., 
 one of the partners, to secure the debt. This mortgage was duly recorded. After- 
 wards, he executed a further chai'ge to A. B. for money due from himself, or from him 
 and his partners, from time to time, to the firm of which A. B. was a member. This
 
 CH. II.] EFFECT OP REGISTRY OR ENROLMENT. 43 
 
 was not registered. He afterwards executed a further charge in favor of other persons, 
 who registered tlieir security. The court held that the unregistered charge was in- 
 operative. See also Lindsay v. Gibbs, 2 Jur. (x. s.) 1039, Ch. The case of Whit- 
 field V. Parfitt, 4 De G. & Smale, 240, 6 Eng. L. & Eq. 48, may seem to contravene 
 the doctrine laid down in Coombs t- . Mansfield, supra ; but they arc entirely consistent. 
 In Whitfield v. Parfitt, the plaintiff, the registered owner, transferred the ship to the 
 defendant by an absolute bill of sale. There was indorsed on the bill a memorandum 
 of the same date as the bill itself, that, on the plaintiff's repaying to the defendant, the 
 sum of 100/., with interest, the bill of sale should be null and void. The bill of sale 
 was I'egistered, but the indorsement was not. Subsequently, the defendant transferred 
 the vessel to a third party, but this was never registered. It was held, that the plaintiff 
 was entitled to redeem. The registry acts do not apply to the cargo or freight. Arm- 
 strong V. Armstrong, 21 Beav. 78 ; Langton i'. Horton, 5 Beav. 9. Nor, do they pre- 
 vent a lien being created on a certificate of original registry deposited by an unregistered 
 owner to secure advances made for the use of the ship. Clarke v. Batters, 1 Kay & 
 Johns. 242. The registry of a ship is, however, conclusive as to the ship being in a 
 fit state to be registered under the 8 & 9 Vict. c. 89, although there may be evidence 
 to show that the ship was not so completed at the time of the registry. Coombcs v. 
 Mansfield, 3 Drewiy, 193. Under the former acts a distinction was taken by Lord 
 Eldon, between trusts created by the act of parties, and those arising by implication 
 of law. The former were held to be within the acts, the latter not. Hence, under 
 them the registered owner would have been estopped to show an equitable title in 
 another, where it did not appear on the registry. Curtis v. Perry, 6 Ves. 739 ; Ex 
 parte Yallop, 15 Ves. 60, 68. See also, as to the equitable ownership under these laws, 
 Ex parte Houghton, 17 Ves. 251 ; Dixon v. Ewart, 3 Meriv. 322; Mair v. Glennie, 4 
 M. & 8. 240 ; Robinson v. Jlacdonnell, 5 M. & S. 228 ; Hay r. Fairbairn, 2 B. & 
 Aid. 193; Moiikhouse v. Ha}^ 2 Brod. & B. 114; Lister v. Payn, 11 Simons, 348; 
 Thompson r. Smith, 1 Madd. Ch. 395. 
 
 2d. From its ver}' nature, the registry can only be evidence of ownership at the time 
 it was made, and the continuation of the exclusive title in the parties, whose names 
 appear on its face, is a mere presumption of fiict, liable to be disproved by competent 
 evidence of a subsequent transfer to others. 
 
 But, by the provisions of the British acts, as we shall see hereafter, such a change 
 of ownership, unless inserted in the registry, was null and void ; hence, the registry 
 became, as against all the world, conclusive evidence of the state of the title at any 
 moment subsequent to its execution, and therefore conclusive against the existence of 
 any legal ownership in other persons, at anj' such time. Camden r. Anderson, 5 
 T. R. 709 ; Westerdell v. Dale, 7 T. R. 306 ; karsh v. Robinson, 4 Esp. 98 ; Curtis v. 
 Perry, supi-a ; Ex parte Yallop, supra ; Ex parte Houghton, supra ; Mestaer v. Gil- 
 lespie, 11 Ves. 621, 625. 
 
 But the registry acts do not preclude the persons, who are named in the certificate of 
 registry, from showing Iiow, and in what proportion, they are respectively entitled. Ex 
 parte Jones, 4 M. & S. 450. And tlie statutes, having been passed for the reasons of 
 domestic policy, have no application to foreigners, whose rights are to be determined 
 by the law of nations. Therefore, the foreign part-owner of a privateer is liable for 
 damages decreed against the owners generally, although his name is not on tlic regis- 
 try. The Nostra Signora de los Dolores, 1 Dods. 290. 
 
 In this country, a transfer, against the provisions of the registry act, may be 
 valid and binding, and therefore the registry can never be conclusive evidence against 
 parties to it, that the legal title is in them at any moment, except that, when it is made. 
 Sec cases before cited, and especially CoLson v. Bonzey, supra. See also the case of 
 Vinal r. Burrill, 16 Pick. 401, which was assumpsit with a count on an inslmul com-
 
 44 ON^ THE LAW OF SHIPPING. [eOOK I. 
 
 putassent, by one claiminj,^ to l)e tlic sliip's husliand, for disbursements relating to the 
 ship on a certain voyage, against several defendants as joint owners. In this case, 
 the court held, that, although the registry was in the name of one of the defendants only, 
 the plaintiff might introduce parol evidence to show that the others were jointly inter- 
 ested with him in a particular voyage, and liable as owners pro hac vice. 
 
 The precise ground of this ruling does not appear in the decision ; it would seem, 
 on the whole, as if the judges were of opinion that the ownership, under the registry act, 
 means only the general property or title, and does not exclude a transient and special 
 px'operty in another, such as an ownership jvo hac vice. 
 
 On the other hand, it may be that the agreement, between the registered owner and 
 the others, was subsequent to the registry, and that the court meant merely to affirm 
 the principle that registry is not conclusive evidence of ownership, and it is cited as an 
 authority to this point, by Perkins in his notes to Abbott. 
 
 As the registry in this country is not conclusive evidence of property against those 
 who are parties to it, and not even prima facie evidence between third parties, it follows, 
 as a matter of course, that it is not, by the force of the statute, made exclusive evidence 
 of ownership in such cases. Lord v. Ferguson, 9 N. H. 380 ; Hozey v. Buchanan, 
 16 Pet. 215. 
 
 And it has been held, that possession and assertion of ownership, and notoriety are 
 stronger evidence of property in a ship than registry without possession. Bas v. 
 Steele, 3 Wash. C. C. 381, 390. See also The S. G. Owens, 1 Wallace, Jun. 366. 
 
 In Great Britain, the distinction has been taken that although property in a ship may 
 be proved, as in the case of any other chattel, at least prima, facie, by proof of posses- 
 sion and claim of title, proof of registry is necessary to make such evidence admis- 
 sible. Pirie v. Anderson, supra. In an earlier case, however', whei'e the plaintiff 
 proved possession under claim of th\e, IjOyA Ellenbo7-ough held this to ha prima facie 
 sufficient, and that he need not produce any evidence of registry, although it came out 
 in cross-examination, that his title was derived from a bill of sale. A jarior registry in 
 the name of a third party, one Vincent Williams, and a subsequent register to the 
 same person, upon a sale by deci'ce of a vice court of admiralty, were offered in evi- 
 dence to disprove the ownership by the defendants ; but his lordship considered that 
 they were both perfectly consistent with a title in a third person in the interval, agree- 
 ably to the averment in the declaration, and did not render any further proof by him 
 requisite. Robertson i'. French, 4 East, 130. With respect to the last part of this 
 ruling. Lord Ellenhorough may have considered that the defendants having shown by 
 their own evidence that Williams must have parted with his title, at some time or other 
 in the interim, it came to the same thing, as to the period in question, as if they had 
 offered no evidence whatever, leaving the presumption arising from the i^laintiff' s pos- 
 session in full force. It seems to us likewise, that the registries in this case were by 
 themselves res inter alios acta', and consequently, if objected to, could not have been 
 admitted at all in evidence of facts stated therein, as was subsequently held by the 
 same learned judge in Eeusse v. Myers, 3 Campb. 475, before cited. But we cannot 
 help thinking, that, since the claim of title appeared to be founded on a bill of sale, the 
 latter should have been produced by the plaintiff as the better evidence, as was ob- 
 jected by the counsel for the defendants ; and that any such proof, without some evi- 
 dence of compliance with the registry laws, was contrary to the policy of those acts, 
 the true rule licing that stated in the later case, above cited. See also Thomas v. Foyle, 
 5 Esp. 88, where the same learned judge permitted the plaintiff to prove his owner- 
 ship by parol, although it was objected that the bill of sale should have been produced 
 in evidence, no attempt being made to set up any title elsewhei'e. 
 
 Lastly, is the register /j ;• /ma yaci'e evidence of ownership in favor of parties to it ? In 
 England, a practice of admitting it as such seems, from tlic language of Lord Ellcn- 
 
 y 
 r
 
 CII. II.] EFFECT OF REGISTRY OR ENROLMENT. 45 
 
 borough, at one time to have prevailed, and at Xisi Prius, Bayki/, J., remarked, in the 
 case of Tinkler v. Wnlpole, supra, " This is very different from the case of a person 
 publicl}- asserting that he is owner, by the act of registering a vessel in his own name > 
 tliat maj' be prima facie evidence for him that he is owner ; because he thereby pub- 
 licl}' challenges all persons that he is so." But Lord Ellenhorou(jh, in Flower v. Young, 
 denied that such could be the case ; the registry amounting to nothing more than the 
 declaration of the party, he remarked, was clearly not admissible in his favor. And 
 the court were of the same opinion in Pirie v. Anderson, supra, Gibbs, J., saying: — 
 " It was strongly urged for the defendant, that, because the title cannot be complete 
 I without the register, therefore the register shall be prima, facie evidence of the title ; that 
 does not at all follow. If the legislature makes an act necessary to complete a title, it 
 does not thereby make that act alone to be proof of the title ; if such were the law, a 
 tnian might make for himself a title to any thing in the world. With respect to the 
 dictum of Baijhy,^.," (cited supra,) "I am satisfied tliat he said that, because he would 
 not take on himself to decide a point which had never been decided, which was not the 
 point raised at nisi prius, and which it was not necessary to decide in that case." The 
 argument, here stated to have been used in ftxvor of the admission of the evidence, has 
 no force in this country, where registry is not made necessary to complete a title; 
 ' nevertheless, we should consider the question as more open to doubt than these cases 
 left it in England. 
 
 In the case of The Marj', 1 Mason, 3G5, a similar objection was made. But Story, J., 
 
 held, without reference to its validity, that the defendants were, under the circumstances, 
 
 estopj)cd from making it by their own acts on record. And it was held by the court 
 
 in Sharp v. Unit. Ins. Co. 14 Johns. 201, that the registry was not prima facie evidence 
 
 ^in favor of the plaintiff's, M'hose names did not appear on it, as proof that they were not 
 
 \owners of the shij). But it is to be remarked, that this ruling does not seem to have 
 
 been requisite to the decision of the case. The question being, whether the plaintiffs 
 
 itiiould be allowed to make use of the register to rebut the presumption of ownership 
 
 prising from their having procured a policy of insurance on a ship in their own name 
 
 3r the purpose of recovering back the premium. This case cannot, therefore, be con- 
 sidered as of authority otherwise than as a dictum. See also Ligon v. Orleans Nav. 
 19 Mart. La. 682. 
 
 sOn the other hand, in Weaver v. The S. G. Owens, 1 Wallace^ Jun. 365, the court 
 tsiKe no such distinction between the effects of the register as evidence for and against 
 those in whose name it stands, but hold generally, that in a question of ownership inter 
 ^partes it is ;)/•/)«« /«c('e evidence of title in the person in whose name the ship is regis- 
 tered, liable to be rebutted by proof of actual ownership in another, whether temporary 
 or absolute, as lessee or vendee. 
 
 See, however, Lincoln v. Wright, 23 Penn. State Eep. 76. The action was brought 
 against the plaintiff's in error for supplies furnished by the defendants for a vessel. 
 The case turned on the point, whether the plaintiffs were owners at the time the sup- 
 plies were furnislied. There was evidence of a sale prior to the time, but it was shown 
 that subsequently the ]ilaintiff's made oath at the custom-house that they were the solo 
 owners, and it was held that tliis evidence was admissible. The court said : — "A vessel 
 maybe sold, and, because the vendor retains the legal title as security for the purchase- 
 money, he has her registered in his own name ; a mortgagee may do the same thing, 
 while the mortgagor keeps the possession ; or an unconditional sale may be made, and 
 the register be left unchanged. For these reasons, a certificate of the register is no 
 evidence in favor of the person named therein as owner, nor in actions between other 
 parties. It will not establish an insurable interest in the registered owner as against an 
 undenvriter, nor will it disprove such interest in the assured when the policv ha? been 
 taken for the benefit of other persons. Kcither would it be any defence wliatever, in
 
 46 ON THE LAW OF SniPMNG. [bOOK I. 
 
 an action for supplies against one foi' whose profit the ship is navigated, to show that 
 she is registered in another name. But all this docs not prevent us from saying that a 
 man's declaration on oath is some evidence against him of the fact therein asserted. 
 It is not conclusive, certainly. The defendants were pei-mitted to show, if they could, 
 that they had no actual interest in the ship ; but the juiy did not think they succeeded, 
 and if they were wronged in this we cannot help it." Sec also Dudley v. The Steam- 
 boat Superior, U. S. Dist. Ct. Ohio, 3 Am. Law Reg. G22. In a criminal case, where 
 it is necessary to prove that the person indicted was on board a ship owned wholly or 
 in part by an American, it has been held that the register is not even prima facie evi- 
 dence of such ownership. United States v. Brune, 2 Wallace, C. C. 2G4.
 
 CH. III.] OF THE SALE OF A SUIP WITHOUT WRITING. 47 
 
 CHAPTER III. 
 
 OF THE TRANSFER OF A SHIP BY SALE. 
 
 SECTION I. 
 
 OF THE SALE OF A SHIP WITHOUT WRITING. 
 
 It has been already remarked, that a ship is a chattel, and can 
 only be regarded as such by a system of law which divides all 
 property into real, (or land, or of the land.) and personal, which 
 includes whatever is not real. It would seem, therefore, that the 
 sale of a ship should be, so far as that law is concerned, gov- 
 erned by the same rules which are applied to the sales of other 
 personal property. But these rules neither prescribe nor prefer 
 any method or form, nor do they require any special or peculiar 
 evidence of the few things which are essential to a sale of a 
 chattel. 
 
 A transfer of real estate has been always a more solemn 
 transaction. It was regulated by somewhat complicated and 
 technical principles, which were adhered to with great exactness. 
 In this country they are, for the most part, certainly, superseded 
 by our statutes of conveyance and record. These require, in 
 general, that every transfer of real estate shall be by deed, 
 which must be entered upon a record that is open to the public. 
 And by adjudication it has been fully determined, but not with- 
 out some strong reasons to the contrary, that, as the prescribed 
 record is intended only to give notice to a party ])reparing to buy 
 the land, or take it as security, actual notice or knowledge of an 
 unrecorded deed shall sujjply the want of record, and have the 
 same effect, so far as concerns the party having such notice or 
 knowledge.^ 
 
 1 See 1 Story, Eq. Jur. § 397 ; GrccnL Cruise, Vol. 4, p. 452.
 
 48 ON THE LAW OF SHIPPING. [BOOK I. 
 
 The English Statute of Registry of 26 Geo. 3, passed in 1786, 
 was in force when our own statute of 1792 ^ was enacted. 
 By its 16th and 17th sections it was provided, with much mi- 
 nuteness, that "every alteration in the property of any ship or 
 vessel " should be indorsed on the certificate of registry before 
 witnesses, and should itself be registered ; and that at every 
 transfer the certificate of registry should be " truly and accu- 
 rately recited in words at length in the bill or other instrument 
 of sale thereof, and that otherwise such bill of sale shall be 
 utterly null and void, to all intents and purposes." In speaking 
 of this in Weston v. Penniman, 1 Mason, 317, Story, J., said : 
 " To entitle ships to be registered, and to be deemed ships of 
 the United States, with the privileges and exemptions of such 
 ships, it is necessary that the transfer should be made according 
 to the form prescribed in the registry acts ; that is to say, that 
 it should be made by some instrument in writing, which shall 
 recite at length the certificate of registry ; but the acts do not 
 declare any other transfer void and illegal, but simply deny to 
 ships transferred in any other manner the privileges of ships of 
 the United States, and deem them alien or foreign ships. In this 
 respect our acts differ from the English registry actsJ" 
 ■ It was remarked in a former section, that our statutes of reg- 
 istry copied the English statute substantially, and almost liter- 
 ally, with one important exception. That exception is the omis- 
 sion of the clauses just quoted. This is the difference to which 
 Judge Story refers. It may be stated briefly thus. The English 
 statute makes a transfer of a ship wholly void, if not in writing 
 and recorded ; our statute only denies to a vessel transferred 
 without writing or registry the privileges of an American ship. 
 It is very important to determine, if we can, the cause of this 
 difference. 
 
 It is impossible, or at least unreasonable, to attribute this dif- 
 ference to accident or inadvertence. The care with which our 
 statute is drawn, the obvious purpose and utility of every other 
 departure from the English statute, and the better adaptation of 
 our statute to our own wants and circumstances, by reason of 
 those departures, forbid the supposition, if it were otherwise ad- 
 
 1 Ch. 1, U. S. Stats, at Large, 287.
 
 en. III.] OF THE SALE OF A SHIP WITHOUT WRITING. 49 
 
 missible, that the framers of our statute did their work with so 
 little thought or care or knowledge as to account for this im- 
 portant difference in this way. These clauses must have been 
 known to the framers of our statute. 
 
 It is equally impossible to suppose that these provisions were 
 omitted because they were unimportant and useless, or because 
 we did not need them as much as they did in England. It must 
 be remembered that England had then no system whatever of 
 recording transfers, even of land ; we had already gone before 
 her in this respect, and the utility of the change was universally 
 admitted, throughout our country. And yet, even in England, 
 the registry of the transfer of ships was deemed necessary, and 
 no reason existed for it there, which did not exist in equal force 
 here. All this, our legislators of 1792 knew ; and, in addition to 
 this, there were those among them who must have been aware 
 of the ancient and universal rule of the law merchant, which 
 asserts the propriety, at least, of transferring a ship by a written 
 document. In view of all these facts, it is impossible to sup- 
 pose that these important provisions of the English statute were 
 omitted in our own, except intentionally, deliberately, and for 
 what was at that time deemed sufficient reason. 
 
 It then becomes desirable to ascertain this reason, if we can. 
 We think it was a doubt whether Congress had any constitu- 
 tional power to enact these provisions. There is in the Consti- 
 tution of the United States no provision or expression which 
 could give Congress this power, unless it be the clause in the 
 eighth section of the first article, which mentions, among the 
 powers given to Congress, that which permits them "to regulate 
 commerce with foreign nations, and among the several States." 
 And the question is, whether a just construction of this language 
 could authorize Congress to regulate the sale or transfer by mort- 
 gage of our own ships in our own ports. It is true that a ship is 
 an instrument of commerce ; and has no other purpose or value. 
 But it cannot be said, that the power to regulate commerce, 
 means a power to regulate the ownership, transfer, and evidence 
 of title of every thing which is used in commerce. 
 
 It is true that this section closes the enumeration of powers 
 with the general provision " to make all laws which shall be 
 
 VOL. I. 5
 
 50 ON THE LAW OF SHIPPING. [bOOK I. 
 
 necessary and proper for carrying into execution the foregoing 
 powers." But this provision could not have been intended either 
 to enlarge or to define the powers enumerated in the preceding 
 part of the section, but only to give to those powers the fullest 
 efficiency. Perhaps a distinction might be taken, which would 
 bring the ship, after she was enrolled, and as it were, thus deliv- 
 ered up into the control of the United States, within their right 
 to regulate the evidence of title and of transfer; and possibly this 
 might be extended to the ship as soon as launched and com- 
 pleted; leaving her, previously, to the exclusive control of the 
 State in which she belongs. 
 
 We are quite clear, that the framers of our statute of registry 
 omitted these peculiar provisions of the English statute, because 
 they deemed it unconstitutional to include them. And this in- 
 ference is much strengthened by the fact that they did expressly 
 and carefully provide for transfer by writing, certified and regis- 
 tered, so far as they were certain that these provisions related to 
 commerce ; that is, so far as related to the privileges, exemptions, 
 or obligations of the ship while engaged in commerce ; making 
 such transfer and registry indispensable to her continuing to 
 possess the rights of an American ship. But here they stopped. 
 And we think that they stopped here, because they supposed 
 that they had now exhausted all their authority on this subject 
 derivable from the power to regulate commerce, and were, there- 
 fore, obliged to leave all that lies beyond this, as all regulation 
 of title, transfer, and evidence of property in the ship when sold 
 or mortgaged as mere merchandise or security, to the State gov- 
 ernment, which takes the ship up in all those relations in which 
 it is property only. 
 
 Still it may be said, that this was the rigorous and cautious 
 construction which would result from the principle that the Con- 
 stitution was an adverse instrument, and therefore to be con- 
 strued strictly, — but not the reasonable construction which would 
 be justified by the supposition, that the Constitution was an 
 instrument favorable to all parties, and should be, if not enlarged, 
 certainly not restrained by construction ; and such seems to have 
 been hitherto the construction of this very clause, in all other 
 cases. 
 
 But this question, which we admit to be a difficult one, has a
 
 CH. III.] OF THE SALE OF A SHIP WITHOUT WRITING. 51 
 
 very great importance in its reference to the Act of 1850, ch. 
 27.^ For this statute has changed, or, at least, has attempted to 
 change, the law on this subject, very materially. It enacts, in 
 substance, precisely those provisions which the Congress of 
 1792 refused to enact. As the statute is copied in the Appen- 
 dix, we state here only that it declares that " no bill of sale, 
 mortgage, hypothecation, or conveyance of any vessel, or part 
 of any vessel, of the United States, shall be valid against any 
 person other than the grantor or mortgagor, his heirs and devi- 
 sees, and persons having actual notice thereof; unless such 
 bill of sale, mortgage, hypothecation, or conveyance be recorded 
 in the office of the collector of the customs where such vessel is 
 registered or enrolled." It might possibly be argued that this 
 statute meets only the case of a transfer of a ship by " bill of 
 sale " or other " conveyance ; " and therefore an oral transfer, 
 with delivery of possession, would be as valid as it was before. 
 We should say, however, that the word " conveyance" must be 
 construed as equivalent to " transfer," and that such oral trans- 
 fer would be void, excepting under the proviso of this statute. 
 Under this proviso, a transfer of any kind, which before the 
 statute was adequate to pass the property in the ship, is now 
 perfectly valid in reference to persons having notice of it. And 
 if the statute be, for the reasons we have presented, or for any 
 reasons, unconstitutional, the law on this subject stands as it did 
 before. It becomes, therefore, important to consider whether 
 any transfer of a ship, in good faith and for valuable considera- 
 tion, without writing or record, would be effectual to pass the 
 property of the ship, either under the exception of this statute, 
 or on the supposition that it is unconstitutional, and therefore 
 void. 
 
 In the first place, we consider it certain that a transfer by 
 written document is the ancient, customary, and proper way ;2 
 but more than this may be necessary to make it the only legal 
 way. On this question we must begin by remembering that a 
 ship is personal property, a chattel, capable of delivery from sel- 
 ler to buyer. Now the rule of the common law, which prevails 
 
 1 9 U. S. Stats, at Large, 440. 
 
 2 The Sisters, 5 Rob. Adm. 155; Weston v. Penniman, 1 Mason, 306.
 
 52 ON THE LAW OF SHIPPING. [bOOK I. 
 
 in respect to every species of personal property, is quite certain ; 
 it is, that an oral sale for a valuable consideration, with delivery 
 of possession, passes the property in the thing sold, absolutely, 
 and is itself a completed transaction, which no writing, however 
 convenient, or even requisite, on other grounds, can make more 
 perfect. If we begin with this rule, the obvious question sug- 
 gested is, whether this rule applies to shipping also; and the 
 equally obvious answer is, that it must so apply, unless there be 
 some rule or provision of law which makes the exception. 
 
 The earlier statutes of registration do expressly make this 
 exception; but only for a specific and exactly defined purpose; 
 and by a familiar rule of law this expression should exclude the 
 implication of any further effect. This question, however, has 
 passed under adjudication ; and we have an opinion, cited before, 
 which we regarded as authoritative, that " the registry acts have 
 not, in any degree, changed the common law as to the manner 
 of transferring this species of property." ^ But there may be 
 such a rule, derived from the known and established " Lex Mer- 
 catoria ; " and this we may gather from a sufficiently ancient, 
 recognized, and universal custom of merchants. We do not, 
 however, find any evidence of such a custom on this point as 
 would have the force of law. 
 
 Undoubtedly, as has been already intimated, the usage of 
 merchants in all nations, the repeated statements of writers of 
 authority, and indeed the nature of the property, lead to the 
 inference that a transfer of a ship by a written instrument ot 
 some kind is usual and proper. But further than this we can- 
 not go, because we see no sufficient ground for saying that 
 what may even be called the rule of practice in this behalf has 
 anywhere, by mere usage, the force of law. We doubt whether 
 such intimations as occur in Jacobsen's Sea Laws,'^ — that the 
 writing is indispensable, — are to be taken as literally and ex- 
 actly true. 
 
 Sometimes this is said to be the rule of the English admi- 
 ralty. In much the strongest case, however,^ Lord Stowell goes 
 
 1 Weston V. Penniman, 1 Mason, 306, 317, per Mr. Justice Story. 
 
 '^ Book 1, ch. 2, p. 21. 
 
 3 The Sisters, 5 Kob. Adm. 155.
 
 CII. III.] OF THE SALE OF A SHIP WITHOUT WRITING. 53 
 
 no further than to say, that " a bill of sale is the proper title, to 
 which the maritime courts of all countries would look. It is the 
 universal instrument of transfer of ships, in the usage of all mari- 
 time countries ; .... it is what the maritime law expects, what the 
 court of admiralty would, in its ordinary practice, always re- 
 quire." But the case did not turn on this question ; and these 
 remarks are, to a certain extent, obiter; and if the whole case be 
 examined it will be seen, we think, that Lord Stowell regarded 
 the general question as an open one. Immediately after the 
 words just quoted, he refers to the English statute of registra- 
 tion, which, as we have seen, requires such instrument in writ- 
 ing in the most positive terms, declaring, indeed, that no transfer 
 without it shall be valid or effectual for any purpose w^hatsoever, 
 in law or in equity. It cannot, therefore, be suprising to find all 
 the English courts, whether of law or of equity, asserting that 
 any transfer of a ship is incomplete and ineffectual, unless there 
 be a bill of sale.^ 
 
 They have a reason for this in the stringent provision of their 
 own statute. We have no new reason for it here. And whether 
 the views we have above expressed as to the reason of the differ- 
 ence be accepted or not, it would seem that no court in this 
 country would be justified in supposing this difference between 
 the American and the British statutes to be merely accidental, or 
 in holding that the American statute w^as intended to express the 
 same thing as the British, when its language is so entirely 
 different. 
 
 It is, moreover, to be noticed that the English courts of equity 
 seem disposed to confine the operation of this clause within 
 strict limits. So far as the decisions of this country, out of 
 admiralty, go, we have in the first place very positive declara- 
 tions of common law courts, that the property in a ship may 
 pass like that of any other chattel, without any instrument in 
 writing. This would seem to settle for us the law on this sub- 
 ject, aside from the statutes, or from an admiralty construction 
 or application of them. But we have in the next place, in 1817, 
 a positive declaration by a court exercising full admiralty 
 
 1 See Ex parte Halkett, 19 Ves. 474, 475; Atkinson v. Maling, 2 T. R. 462, 466; 
 Sutton V. Buck, 2 Taunt. 302. 
 
 5*
 
 54 ON THE LAW OF SHIPPING. [bOOK I. 
 
 powers, that the United States " registry acts have not in any 
 degree changed the common law as to the manner of transferring 
 this species of property." ^ 
 
 Here would seem to be a plain assertion that the common law 
 rule above stated is in admiralty the rule as to shipping. But 
 the very next sentence is, " To be sure, a bill of sale is necessary 
 to pass the title of a ship; but this doe%not depend upon any 
 enactment peculiar to our municipal law, but grows out of the 
 general maritime law, which requires such a document as the 
 proper muniment of the title of the ship." It might seem that 
 these passages are to be reconciled only by supposing that the 
 court, by the " common law," mean to include the lex merca- 
 toria or " the general maritime law " as a part of it, and that this 
 requirement of a written instrument thus becomes a part of the 
 common law. But, an examination of the whole case, or even 
 of the whole paragraph in which these passages occur, would 
 show, we think, that this was not the meaning of the court. 
 And if it was, it was certainly an obiter opinion, not called for 
 by the facts, nor by the questions raised, nor by the decision, for 
 this distinctly sustains a merely equitable title, resting upon no 
 bill of sale whatever. h\ Philips v. Ledley,^ the court said : 
 " The diflerence between the law of England on this point, and 
 the law of the United States, is striking:^' 
 
 Thus far, then, we have no case in any American court, in 
 which the rights of any party are made to depend upon this 
 rule, or are distinctly affected by the assertion of it. But it 
 may seem the case of Ohl v. Eagle Insurance Co.^ goes this 
 length. It involves directly the question of title to a ship. 
 The plaintiff endeavored to maintain a title to one half of a 
 ship by a merely oral transfer; and he was not permitted to 
 do so. Story, Justice, saying, " I think that a title to a ship 
 cannot pass by parol, when she is sold to a purchaser;" and 
 he quotes with approbation the remarks of Lord Stowell which 
 we have cited above. But when we look at the facts in the 
 case, the force of the language is very much abated. We 
 find that the plaintiff had received a bill of sale of the ship to 
 
 1 Weston V. Penniman, 1 Mason, 306, 317. 
 
 2 1 Wash. C. C. 226, 229. 
 
 3 4 Mason, 172, 390.
 
 CH. III.] OF THE SALE OF A SHIP WITHOUT AYRITIXG. 55 
 
 himself and another ; and he undertook to ?how that the bill of 
 sale was in fact intended to pass the property in the whole ship 
 to him alone. But says Story : " The legal title passed to both ; 
 and to introduce the parol proof would be to contradict the 
 direct allegations of the. deed." This was, of course, made im- 
 possible by the most familiar rules of the law of evidence; that 
 is, of the common law, without any reference to the law mer- 
 chant. The admission of this proof would have materially va- 
 ried the meaning and effect of a written instrument of title, and 
 that a sealed instrument, by parol evidence. Only to say that 
 this could not be permitted, would have been abundantly suffi- 
 cient to decide the whole case. So far, therefore, as this case is 
 to be regarded as authority, we must consider the preceding re- 
 mark of the court as either altogether obiter, or as applicable only 
 to facts like those that the court were then considerins^. 
 
 On the whole, therefore, and as a conclusion from all these 
 premises, we should say that there was no case in America in 
 which a purchaser in good faith of a ship, or a part of a ship, 
 was dispossessed of his property by the operation of that rule; or, 
 in other words, because the purchase, or transfer to him, had not 
 been made by means of, or accompanied by, any written instru- 
 ment. We are confident that no court of common law would 
 ever apply this rule to such a case, and with such an effect, un- 
 less so far as they might be constrained by the Statute of 1850. 
 That is, no court of commqn law would consider a written 
 instrument absolutely indispensable, and an oral transfer without 
 one necessarily void and of no effect whatever. And still less 
 would a court of equity. And as a court of admiralty always 
 possesses and exercises full equity powers, we are of opinion, 
 that in any such case, where the equity or moral justice of the 
 case required it, even a court of admiralty, if it considered a 
 written instrument indispensable, would either require of the 
 seller that he should make such instrument as the law required, 
 or, acting upon a familiar equity principle, would consider that 
 to be done which ought to be done, and assuming that such 
 written instrument had been made, would protect the rights of 
 the purchaser accordingly. ^ 
 
 1 That Lord Stowell did not intend to assert as a positive rule, that a bill of sale is in 
 all cases indispensable to the transfer of property in a ship, and that he considered it a
 
 56 ON THE LAW OF SHIPPING. [lOOK I. 
 
 SECTION 11. 
 
 OF TIIE TRANSFER OF A SHIP BY BILL OF SALE. 
 
 In England, the first bill of sale, by which the property in the 
 vessel passes from the builder to the first purchaser or owner, is 
 
 question open to argument, appears to be the import of his concluding words in the case 
 of The Sisters, 5 Rob. Adm. 155, 160. " Whilst Charnock was left in possession of the 
 bill of sale, such a delivery as is here said to have taken place could not be a delivery 
 of the title to the property. It was mei-ely putting the property into the hands of 
 another, for the purpose of executing a particular contract, but which contract was in 
 fact never executed. Nothing less than an express declaration, made by Charnock 
 to Tubbs, ' I deliver this to you for the use of Marsden,' could fairly raise the argu- 
 ment, how far delivery, coupled with the correspondence, could be held equivalent to a 
 bill of sale." But see The Helena, 4 Rob. Adm. 3. 
 
 Tiiat, independently of the registry acts, no bill of sale was necessaiy to transfer the 
 pi-operty in a British vessel, would seem to follow from those cases which have deter- 
 mined that, where these acts do not apply, the ownership may be, at least prima facie, 
 established by evidence of possession under claim of title, or other matter in pais, as 
 in the case of any other chattel. Robertson v. French, 4 East, 130; Thomas v. Foyle, 
 5 Esp. 88; Pirie v. Anderson, 4 Taunt. 652 ; The Nostra Signora, 1 Dods. 290. See, 
 also, Bas v. Steele, 3 Wash. C. C. 381 ; United States v. Amedy, 1 1 Wheat. 392, 
 409 ; Hozey v. Buchanan, 16 Pet. 215. 
 
 Under the American registry acts it is well settled, that a parol sale of a ship with 
 delivery is good to pass the title from the vendor to the vendee, although the privi- 
 leges of an American bottom are thereby forfeited. Wendover h\ Hogeboom, Anthon's 
 N. P. 121, 7 Johns. 308; Taggard v. Loring, 16 Mass. 336, 340; Lamb v. Durant, 
 12 Mass. 54; Bixby v. Franklin Ins. Co. 8 Pick. 86; Weaver v. The S. G. Owens, 1 
 Wallace, Jun. 359 ; Fontaine v. Beers, 19 Ala. 722 ; Leonard v. Huntington, 15 Johns. 
 298; Badger v. Bank of Cumberland, 26 Maine, 428; Vinal v. Burrill, 16 Pick. 
 401 ; Barnes v. Taylor, 31 Maine, 329 ; Mitchell v. Taylor, 32 Maine, 434. 
 
 Nor is the national character, ipso facto, gone by such a transfer, but the registry act 
 makes the production of a bill of sale requisite to entitle the ship to be registered 
 anew, and the want of such new registrj^ forfeits the national character. If, therefore, 
 a bill of sale is executed at any time before application made for a new registry, it is 
 sufficient. United States v. Willings, 4 Crancb, 48 ; Hatch v. Smith, 5 Mass. 42, 53. 
 
 The effect of the forfeiture is not that the ship acquires the character of an alien 
 ship for all purposes, but that she loses the privileges of an American vessel. Fontaine v. 
 Beers, supra. 
 
 The difference in the result of a non-compliance with the terms of tlie registry acts in 
 the two countries has been well established in tlie case of other provisions common to 
 the acts, and classed with them and enforced by tlie same penalties as the require- 
 ment of an instrument in writing, thus affording a strong presumption, independent of 
 dii'ect authority, that tliis diversity extends to the clause requiring such instrument. 
 
 Thus the same section requires that tlie bill of sale shall " recite the certificate of
 
 CH. III.] OF THE TRANSFER OF A SHIP BY BILL OF SALE. 57 
 
 called the grand bill of sale, and is distinguished by this name 
 from the bills of sale by which subsequent transfers are made.^ 
 But we have no such distinction in this country .^ Whether any 
 bill of sale is essential to a transfer, we have already considered. 
 If any be necessary, — and that a transfer of a ship by a writ- 
 ten instrument is customary and proper we have already said, 
 and no one has ever doubted, — there is no form for one pre- 
 scribed by law, or by any usage so established as to have the 
 force of law.^ 
 
 If a ship be mortgaged, we know no reason why it does not 
 come under the common law, or statute law where that exists, 
 in relation to mortgages of personal property, unless the Statute 
 of 1850, ch. 27, interferes with and controls the State statutes. 
 For most of our States have now statutes requiring, to make 
 a mortgage of personal property valid, either a transfer of 
 possession, or a record of the mortgages ; and they prescribe a 
 place for the record. But the statute of 1850 requires, that 
 every transfer, including, of course, mortgages, should be 
 registered in the custom-house. The questions then occur, is 
 
 registry." And the omission of this recital has been adjudged in Great Britain to 
 invalidate the sale, so that the vendee who had taken possession of the vessel under the 
 bill of sale could not retain her against the assignees of the vendor, who subsequently 
 to the sale had become a bankrupt. Rolleston v. Ilibbert, 3 T. R. 406. And relief 
 was denied in equity. Hibbert v. Rolleston, 3 Brown's Ch. 571. See, also, Campbell 
 V. Thompson, 2 Hare, 140. The case is the same with an executory agreement to sell. 
 Bidden v. Leeder, 1 B. & C. 327 ; Brewster v. Clarke, 2 Meriv. 75 ; Hughes v. 
 Morris, 2 De G., McN., & G. 349, 12 Eng. L. & Eq. 291. So where the certificate was 
 misrecited. Westerdell v. Dale, 7 T. R. 306. These provisions of the registry acts do 
 not, however, extend to transfers by operation of law. Curtis v. Perrj-, 6 Ves. 739 a; 
 Ex parte Yallop, 15 Ves. 60, 68 ; Bloxam v. Hubbard, 5 East, 407. 
 
 In America, such an omission merely forfeits the national character of the vessel. 
 Mitchell V. Taylor, 32 Maine, 434 ; D'WoIf i;. Hams, 4 Mason, 515, 533. So with the 
 insufficient recital of the certificate. Philips v. Ledley, 1 Wash. C. C. 226, 229. So 
 with the omission to enroll the bill of sale in the custom-house. Ilozey v. Buchanan, 
 16 Pet. 215. See also, as to the distinction between tlie British and American registry 
 acts, witii respect to the consequences of a neglect to coni])ly with their iirovisions 
 generally. Colson v. Bonzey, 6 Greenl. 474, 475. 
 
 1 Atihott on Shipping, 3. In England the grand bill of sale is necessary to the 
 transfer of a sliip at sea. Atkinson v. Maling, 2 T. R. 4G2 ; Gordon v. The East 
 India Co. 7 T. R. 228, 234. 
 
 2 Portland Bank v. Stacey, 4 Mass. 661 ; Wheeler v. Sumner, 4 Mason, 183; Mor- 
 gan's Ex'rs V. Biddle, 1 Yeates, 3 ; 3 Kent, Com. 133. 
 
 8 See the remarks of Parke, B., on the stat. 3 and 4 Will. 4, c. 55, § 31, in Hunter 
 V. Parker, 7 M. & W. 322, 343.
 
 58 ON THE LAW OF SHIPPING. [bOOK I. 
 
 the registry of the transfer in the custom-house sufficient, so that 
 registry under the State statutes is unnecessary; or, secondly, is 
 registry in the custom-house indispensable, or is it enough that 
 the transfer is recorded under the State statutes. Waiving the 
 question of the constitutionality of the Statute of 1850, which 
 we have already considered, we are of opinion that the United 
 States statute controls the State statute, so far, that record 
 under this latter would have no effect as legal notice of the 
 transfer. At least, if it be constitutional, we do not see how 
 its requirements can be superseded or supplied by those of a 
 State law.^ 
 
 If the ship be abroad, by the statute of Massachusetts the 
 record is not necessary, if the mortgagee takes possession as 
 soon as possible after her return to that State ;2 and this would 
 seem to be almost an inference of law, even without express 
 provision. For if the ship be where possession cannot be taken, 
 and possession is taken as soon as that is possible, it would 
 hardly seem to come within the meaning or within the reason of 
 a mortgage without possession.^ Hence we should say that this 
 
 1 It is well settled that a law of Congress, which is in accordance with the constitu- 
 tion, is the supreme law of the land, and that a State law which comes in conflict with 
 it must cease to operate, so far as it is repugnant to the law of the United States. 
 License Cases, 5 How. 504, 574; Fox v. The State of Ohio, 5 How. 410; Uni- 
 ted States V. Marigold, 9 How. 560 ; Moore v. The State of Illinois, 14 How. 13 ; 
 Groves v. Slaughter, 1 5 Pet. 449 ; Passenger Cases, 7 How. 283 ; Nathan v. The 
 State of Louisiana, 8 How. 73; United States v. Peters, 5 Cranch, 115; Mager v. 
 Grima, 8 How. 490 ; Weston v. City Council of Charleston, 2 Pet. 449 ; McCulloch v. 
 Maryland, 4 Wheat. 316; Osboru v. Bank of United States, 9 Wheat. 738 ; Prigg v. 
 The Commonwealth of Penn. 16 Pet. 539; Ogden r. Saunders, 12 Wheat. 213; 
 Brown v. The State of Maryland, 12 Wheat. 419 ; Norris v. City of Boston, 4 Met. 
 282, 288 ; People v. Brooks, 4 Den. 469. See also, Port Wardens of N. Y. v. Cart- 
 wright, 4 Sandf. 236, opinion of Paine, J. It is provided by statute in New York, 
 that a steamboat navigating the waters of that State at night shall carry two lights. It 
 is also provided by an act of Congress that steamers shall carry one or more lights. In 
 Fitch V. Livingston, 4 Sandf 492, a steam propeller, licensed as a coaster, going up 
 the Hudson on a voyage from Philadelphia to Albany, came into collision with another 
 steamer, and was found by the jury to be in fault because she carried only one light. 
 It was argued, that, having complied with the provisions of the United States statute, 
 she had done all that was necessary, but the court held that she was bound to comply 
 with the statute of the State through whose waters she was passing. See, however, 
 The Steamboat New York v. Rea, 18 How. 223. 
 
 2 Rev. Stats, ch. 74, § 6. 
 
 3 Tliis question of possession will be more fully considered in a subsequent section.
 
 Cn. in.] OF THE SALE OF A SHIP BY THE MASTER. 59 
 
 principle would apply to a mortgage of goods at sea ; for, in 
 general, all the principles which apply to the sale of the ship at 
 sea, apply to the sale of her cargo.^ 
 
 SECTION III. 
 
 OF THE SALE OF A SHIP BY THE MASTER. 
 
 A sale of a ship is frequently made by the master; and if this 
 is justified by necessity, it is valid.^ The necessity must, how- 
 
 1 Gardner v. Howland, 2 Pick. 599, 602 ; Tratt v. Parkman, 24 Pick. 42 ; Gallop v. 
 Newman, 7 Pick. 282; D'Wolf v. Harris, 4 Mason, .515 ; Conard v. Atlantic Ins. Co., 
 1 Pet. 389, 449. Quite recently some further points have been decided in respect to 
 this act of 1850. Thus, it has been held, that mortgages must be recorded at the 
 custom-house where the vessel was last registered. Potter v. Irish, Sup. Jud. Ct., 
 Mass., March T. 1858, 21 Law Reporter, 103. It has also been held in Admiralty 
 that the act does not apply to charter-parties. Hill v. The Golden Gate, 1 Newb. 
 Adm. 308. And by Judge Hoffman, in the Superior Court of New York City, that 
 the act does not abolish State statutes, and, therefore, that a mortgage whicli is re- 
 corded according to the act of Congress, and also according to the State statute, takes 
 precedence of a prior mortgage which is registered only according to the act of Con- 
 gress. Thompson v. Van Vcchten, Nov. 1857. But we doubt whether this be law. 
 
 In Marsh v. The Brig Minnie, U. S. D. C, South Carolina, 6 Am. Law Ecgister, 
 328, it was held, that the lien on a vessel for supplies, was not a " hypotliecation " 
 within the meaning of that phrase in tlie act of 1850, and need not, therefore, be recorded. 
 
 2 It is expressly declared by several foreign ordinances, that tiie master sliall not sell 
 the ship without especial authority for tliat purpose from tlie owners. He was, how- 
 ever, authorized to borrow money upon the credit of the ship, with the consent of his 
 crew. Consulat, par Boucher, c. 156 ; Laws of Oleron, art. 1 ; Laws of Wisbuy, art. 
 13 ; Laws of the Hanse Towns, art. 57 ; French Ord. liv. 2, tit. 1. 
 
 It seems probable from the early case of Trcmenliere v. Tresillain, Sidcrfin, 452, that 
 the power of the master to sell his ship under any circumstances whatever, without in- 
 structions from the owners, was not originally recognized in England, altliougii there 
 is a case in Jenkins' Centuries, p. 165, which might countenance a different doctrine. 
 It is there observed, that in case of famine a master may sell his ship, although it does 
 not belong to him. Lord Eaymond, in Johnson v. Shippen, 2 Ld. Raym. 982, con- 
 sidered a bill of sale given by the master void as such, but valid as a hypothecation of 
 the vessel, upon which process m rem might issue in admiralty, although not in per- 
 sonam. The passage in Eakins v. East India Co., 1 P. Wms. 395, 2 Bro. Pari. Cas. 
 382, cannot be considered, as we apprehend, an authority one way or the other; for, 
 although it is there stated that the captain had no power to sell the ship, it was also 
 expressly found that there existed no necessity for a sale. It is now well settled liy a 
 scries of decisions, that the master, in a case of nercssiti/, has the power to sell. See 
 cases infra. And Dr. Lushimjton, in the case of The Catherine, 1 Eng. L. & Eq. 679,
 
 60 ON THE LAW OF SKIPPING. [BOOK I. 
 
 ever, be imminent and extreme; and the master must have acted 
 in good faith, and with the exercise of a sound discretion. It is 
 not quite easy to determine by exact definition what the power 
 of the master is in this respect. It is certainly not enough that 
 he acted in good faith, if the necessity were not so cogent as to 
 give him the authority.^ It is sometimes said also, that it is not 
 
 681, says : " In later days I think a wiser view of the question has been taken, because 
 I take the law now to be, that, where an urgent necessity exists, which the master can- 
 not meet, it is competent to him to sell the vessel." But in such a case, the burden of 
 proof lies on the purchaser to show that the sij,Ie was necessary. The Glasgow, 28 Law 
 T. (Adm.) 13. 
 
 1 The Fanny & Elmira, Edw. Adm. 117 ; Hunter v. Parker, 7 ]\I. & W. 322 ; Cannan 
 V. Meaburn, 1 Bing. 243; Meaburn v. Leckie, 4 Dow. & Ry. 207, n.; Idle v. E. Exch. 
 Ass. C, 8 Taunt. 755 ; Tanner v. Bennett, Ryan & M. 182 ; Hayman v. Molton, 5 Esp. 
 65; Robertson v. Clarke, 1 Bing. 445. The law is stated with great accuracy by Tindal, 
 C. J., in Somes v. Sugrue, 4 C. & P. 276 : "A great deal has been said about the word 
 necessity. Undoubtedly, it is not to be confined to, or so strictly taken, as it is in its 
 ordinary acceptation. There can, in such a case, be neither a legal necessity, nor a phy- 
 sical necessity, and therefore it must mean a moral necessity ; and the question will be, 
 whether the circumstances were such, that a person of prudent and sound mind could 
 have a doubt as to the course he ought to pursue. The points principally for considera- 
 tion will be, the expenditure necessary to put the ship into a condition to bring home 
 her cargo ; the means of performing the repairs, and the comparison between those two 
 things, and the subject-matter which was at stake ; and it must not be a mere measuring 
 cast, not a matter of doubt in the mind, whether the expense would or would not have 
 exceeded the value; but it must be so preponderating an excess of expense, that no rea- 
 sonable man could doubt as to the propriety of selling under the circumstances, instead 
 
 of repairing A captain has no power to sell, except from necessity, considered 
 
 as an impulse, acting morally, to excuse his departure from the original duty cast upon 
 him of navigating and bringing back the vessel. If he has no means of getting the re- 
 pairs done in the place where the injury occurs ; or if, being in a place where they might 
 be done, he has no money in his possession, and is not able to raise any, then he is jus- 
 tified in selling, as the best thing that can be done." And in this country the same rule 
 exists ; the sale must not only be bond fide, but the necessity for it must exist. Pope v. 
 Nickerson, 3 Story, 465, 504 ; Robinson v. Commonwealth Ins. Co., 3 Sumn. 220 ; 
 Patapsco Ins. Co. v. Southgate, 5 Pet. 604 ; The Brig Sarah Ann, 2 Sumn. 206, s. c. 
 New Eng. Ins. Co. v. Brig Sarah Ann, 13 Pet. 387 ; The Sch. Tilton, 5 Mason, 465. 
 
 The necessity which will justify the sale is termed by Shaw, C. J., an "imperious, un- 
 controllable necessity." Peirce v. Ocean Ins. Co., 18 Pick. 83, 88. In Somes r. Sugrue, 
 supra, and in Pope v. Nickerson, 3 Story, 465, 504, it is called a moral necessity. Mr. 
 Justice Story, in the case of The Ship Fortitude, 3 Sumn. 228, 248, thus defines the 
 meaning of moral necessity: " Some criticism has been employed upon the words 
 'moral necessity ' as applied to the conduct of the master acting in cases of this sort ; 
 and it has been more than intimated, that the expression is quite new, and can scarcely 
 be traced beyond the case of Gordon v. Mass. F. & M. Ins. Co., 2 Pick. 249. It does 
 not appear to me that the criticism has any just foundation, or that the expression is 
 either new or inapt. It seems to indicate precisely that which such a case requires. 
 Moral necessity arises, where there is a duty incumbent upon a rational being to per-
 
 CH. III.] OF THE SALE OF A SHIP BY THE MASTER. 61 
 
 enough that he sells in the exercise of a sound discretion, 
 because the danger must be actual. But it is quite certain that 
 the validity of the sale is not to be judged of by the event. 
 That may show that the danger was apparent only, because the 
 first tide, or an immediate change of wind, lifted her ofi'.^ 
 
 form, M-liich he ought at the time to perform. It presupposes a power of volition and 
 action, iftider circumstances in which he ought to act, but in wliich he is not absolutely 
 compellcdjo act by overwhelming, superior force." And in Hall v. Franklin Ins. Co. 
 9 Pick. 466, it is said : " The sale should be indispensably requisite. The reasons 
 for it should be cogent. We mean a necessity which leaves no alternative ; which pre- 
 scribes the law for itself, and puts the party in a positive state of compulsion to act." 
 The master may sell where the shijj is a total wreck. Cambridge v. Anderton, 2 B. & C. 
 693; Ireland v. Thompson, 4 C. B. 149. Or, in an insurance case, if the expense of 
 repairs would exceed the value of the vessel when repaired. Gordon v. Mass. F. & M. 
 Ins. Co., 2 Pick. 249. See also, on tliis point, the remarks of Mr. Justice Baylej, in 
 Gardner v. Salvador, 1 Moody & R. IIG. " If the situation of the ship be such, tliat. 
 by no means within the master's reach, it can be treated so as to retain the character of 
 a ship, then it is a total loss. If the captain, by means within his reach, can make an 
 experiment to save it, with a fair hope of restoring it to the character of a ship, he can- 
 not, by selling, turn it into a total loss." The master's opinion of the necessity, and the 
 benefit resulting from the sale, and his professional skill, will not justify him in the 
 absence of a real necessity. Patapsco Ins. Co. v. Southgate, supra; The Henry, 1 Bl. 
 & Howl. Adm. 465. The presumption however is, that he has done his duty. Robin- 
 son V. Com. Ins. Co. 3 Sumn. 220. In Post v. Jones, 19 How. 150, the vessel was 
 wrecked on the coast of Behring's Straits. The cargo, consisting of barrels of oil, was 
 taken out and saved by three other whaling ships. The form of an auction was gone 
 through with, the captains of the three vessels being the bidders, and the ship and 
 tackle were sold for five dollars, and the cargo, part at a dollar, and the rest at seventy- 
 five cents per barrel. The sale was held invalid. The court said : " All the cases 
 assume the fact of a sale in a civilized country where men have money, where there is 
 market and competition. They have no application to wreck in a distant ocean, where 
 the property is derelict, or about to become so, and the person, who has it in his power 
 to save the crew, and salve<^he cargo, prefers to drive a bargain with the master. The 
 necessity in such a case may be imperative, because it is the price of safety, but it is 
 not of that character which permits the master to exercise this power." 
 
 i The Brig Sarah Ann, 2 Sumn. 206, 21.5 ; affirmed on appeal, New Eng. Ins. 
 Co. V. Brig Sarah Ann, 13 Pet. 387. Mr. Justice Wui/ite, delivering the opinion of the 
 court in this case, said : — " Nor can the necessity for a sale be denied, when the peril, 
 in the opinion of those capable of forming a judgment, makes a loss probable, though 
 the vessel may in a short time afterwards be got off and put afloat. It is true, the opin- 
 ion or judgment of competent j)crsons may be falsified by the event, and that their 
 judgment may be shown to have lieen erroneous by the better knowledge of other 
 jjei-sons, showing it was probable that the vessel could have been extricated from her 
 ]ieril without great injury or incurring great expense, and the master's incompetency to 
 form a judgment or to act with a jtroper discix'tion in the case may be shown. But 
 from the mere fact of the vessel having been extricated from her peril', no presumption 
 can be raised of the master's incompetency, or of that of his advisers." See also Idle v.
 
 62 ON THE LAAV OF SHIPPING. [BOOK I. 
 
 If, however, we understand by actual danger the actual proba- 
 bility of destruction, as far as that could then be measured or 
 estimated, then, it is true that the authority of the master to sell 
 springs only from a necessity which is caused by actual danger; 
 for danger is one thing, and destruction another ; from danger 
 there mety be escape, and this may even be swift and easy, and 
 yet the danger have been real and great. 
 
 The rule must be, that, if the circumstances were such that if 
 any master of ordinary skill and intelligence, carefully qjjserving 
 all the facts, and weighing all probabilities, would be I6d to the 
 conclusion that an escape from destruction was but little more 
 than possible, and that a delay sufficient to acquaint his owners 
 with his condition and receive their instructions would in all 
 probability cause a greater loss, he may then sell.^ 
 
 We may be guided, in applying this rule to any case, by 
 inquiring what any owner of common character and intelligence 
 would have done if present; not always what that identical 
 owner would have done, because a peculiarity of temperament 
 might make him hope too long or despair too soon. The ship 
 must not, we repeat, be sold on a mere expediency ; or because 
 that may turn out to be the best course. But if it is quite cer- 
 tain that any owner of common understanding and acquaint- 
 ance with ships and navigation, being on the spot and conu- 
 sant of all the facts, would conclude that the only thing left for 
 a prudent man to do was to sell the ship at once, then the mas- 
 ter may sell.^ 
 
 Koyal Ex. Ass. Co. 8 Taunt. 755; Fontaine v. Phcenix Ins. Co. 11 Johns. 29.3; 
 Hall r. Franklin Ins. Co. 9 Pick. 466, 484; The Henry, 1 Bl. & Howl. Adra. 
 465. 
 
 1 See post, p. 64, n. (2) and (^). 
 
 ^ Where the master sells the ship, and the question of the validity of the sale is dis- 
 puted by the former owner, so that the only fjuestion is between him and the rendee, it 
 is clear that the sale will be deemed valid, if the circumstances attending it were such 
 that a jury would be warranted in finding that a prudent owner would have done as 
 the master did. Hayman v. Molton, 5 Esp. 65. But we are not disposed to carry the 
 doctrine of " prudent uninsured owner " further than this. And in a case of insurance, 
 we should say, that, in judging of the necessity of the sale, what a prudent owner un- 
 insured would have done, if pi-esent, should not be considered. We are aware that this 
 is said to be a test, in numerous cases ; but to show the fallacy of it kt us take the case of 
 'memorandum articles,' where the rule is that if the goods aiiive in specie there is no 
 total loss. Now, probably in every case, the best thing that can be done is to sell the
 
 CH. m.J OF THE SALE OF A SHIP BY THE MASTER. 63 
 
 Whether the mere want of funds can be of itself a sufficient 
 necessity to justify a sale by a master has been much disputed.^ 
 But we strongly incline to the conclusion, that a master can 
 have no power />*07h necessity to sell a ship that is not a wreck. 
 It is true that the master may have no funds with him, and that 
 his owners may not be known, or their pecuniary responsibility 
 ascertained where his ship needs repair; but it is not easy to 
 imagine a place where extensive repairs could be made, and yet 
 no money be raised on bottomry of the ship. To meet this very 
 emergency, the law and custom of bottomry are universal. K 
 the requisite repairs would cost so much that the ship, when 
 repaired, would not suffice as security for the sum, then the 
 greatness of the injury, as measured by this cost, might be equiv- 
 alent to a wreck, and on this ground justify a sale. If the injury 
 be less, so that a comparatively small sum would repair her, but 
 that cannot be raised, then it is a question whether the master 
 should sell at once, or delay the sale until orders can be received 
 from the owners. And, although there may be peculiar cases and 
 emergencies, which must be judged of by themselves, as a gen- 
 eral rule we should have no hesitation in saying, that the master 
 of a ship thus slightly injured would have no other right than to 
 let her lie in port, with all possible precaution against deteriora- 
 tion, until he could hear from his owners.^ There may be, per- 
 haps, a case in which the master may be justified in selfing by a 
 mere peciiniarij necessity; but this must be extreme and un- 
 questionable ; it must be such as to come clearly within the rule 
 already laid down, and make it indisputably certain that the 
 
 gooclf5 ; hut it is certain that this will not be taken as a criterion. As we shall have 
 occasion to discuss this question at length in that part of this work which treats of 
 insurance, we merely make these suggestions here. 
 
 1 This point came up in the case of the American Ins. Co. v. Ogden, 15 Wend. .5.32. 
 The master of the sliip, on her arrival in a damaged condition at the port oi destination, 
 finding himself without funds and without credit, and being unable to raise money for 
 the purpose of rc]iairs, either by bottomry or otherwise, sold the vessel, although the 
 lo.ss was neither actually nor technically a total one. This was held by a majority of 
 the court, (Bronson, J., dissenting,) to justify an abandonment by the owners. The 
 decision was reversed in the Court of Errors, 20 Wend. 287, on the ground that the 
 want of funds was owing to the default of the owner, who could not nuike a loss arising 
 from his own fraud Or neglect the means of charging the insurers, but the conduct of 
 the master in selling was declared to I)e entirely justitiable, p. 306, 319. 
 
 - See post, p. 64, n. ('-) and (S).
 
 64 ON THE LAW OF SHIPPING. [bOOK I. 
 
 owner himself, if there under similar circumstances, would have 
 found a sale the only thing he could do ; for, it must be such as 
 to show that the sale was clearly of necessity, and not of expedi- 
 ency only. 
 
 At one time, a distinction was made between the power of the 
 master if abroad, or if wrecked on the coast of his own country.^ 
 Bat this has disappeared. The only rule now is, that he must 
 inform his owiiers, and wait their instructions, if he can.^ The 
 general introduction of the electric telegraph Avill much extend 
 this possibility, and consequent duty. For, let the master be 
 where he may, and his owner far or near, it is certain that he 
 can only dispossess the owner of his property by a sale, when his 
 authority for this rests on necessity, and only when that neces- 
 sity is such as to preclude intercourse between them without an 
 unreasonable exposure of the property to peril. In other words, 
 if he can become the agent of the owner with instructions, then 
 he cannot be his agent from necessity.^ 
 
 1 Scull V. Briddle, 2 Wash. C. C. 150. 
 
 2 The Brig Sarah Ann, 2 Sumn. 206, 215. In this case, Mr. Justice Story states 
 the law as follows : "It has been suggested at the argument, that, as the stranding 
 was on a home shore, at no great distance from the residence of the agent of the owners, 
 the master was not authorized to sell without consulting the agent or the owners. I 
 agree at once to the position, if there is no urgent necessity for the sale. But if such 
 an urgent necessity does exist, as renders every delaj' highly perilous, or ruinous to the 
 interests of all coliceraed, the duty of the master is the same, whether the vessel be 
 stranded on the home shore, or on a foreign sliore, whether the owners' residence be 
 near or be at a distance. I am awaVe of the docti-iue maintained by my brother, the 
 late Mr. Justice Washington, in Scull v. Briddle, 2 Wash. C. C. 150; and, unless it 
 is to be received with the qualification above stated, I cannot assent to it." Same case 
 affirmed, New Eng. Ins. Co. v. Brig Sarah Ann, 13 Pet. 387. 
 
 3 In Pike v. Balch, 38 Maine, 302, a vessel on a voyage from Calais, Maine, to New 
 York, was wrecked on an island off Little Machias Bay. There was a telegraph station 
 distant twenty miles from the wr^k. It was held, that if the master could " by any avail- 
 able means " in his power communicate with his owners, he was bound to do so. The 
 vessel was sold by the master without notice being given to the owners, and the sale 
 was held to be invalid. And in the New England Ins. Co. v. Brig Sarah Ann, 13 
 Pet. 387, 401, the court say : " The true criterion for determining the occurrence of the 
 master's authority to sell is the inquiry, whether the owners or insurers, when they are 
 not distant from the scene of stranding,' can by the earliest use of the ordinary means 
 to convey intelligence, be informed of the situation of the vessel in time to direct the 
 master before she will probably be lost. If there is a probability of loss, and it is made 
 more hazardous by every day's delay, the master may then act promptly, to save some- 
 thino- for the benefit of all concerned, though but little may be saved." See also The 
 Bri<'' Sarah Ann, 2 Sumn. 215; Scull i?. Briddle, 2 Wash. C. C. 150. In Hall v.
 
 CH. III.] SALE UNDER A DECREE OF ADMIRALTY. 65 
 
 If a sufficient necessily existed, and the master proceeded to 
 make sale, he does so as the agent of the owners, and binds 
 them by his acts or words in the same manner that he would if 
 otherwise authorized to make the sale.^ 
 
 SECTION IV. 
 
 OF THE SALE OF A SHIP UNDER A DECREE OF ADMIRALTY. 
 
 The ship is sometimes sold, abroad or at home, under a decree 
 of the court of admiralty. If this be a condemnation as prize, 
 or for forfeiture as contraband, o' for smuggling, or for any such 
 cause, or to pay salvage, or discharge a bottomry bond, or to 
 satisfy any of the liens known to the maritime law, it would 
 seem to be valid and binding apon all courts and all parties, 
 unless it be shown to be vitiated by fraud.^ But if it be merely 
 a decree on a survey, and rest on the ground of unfitness for 
 service, or unseaworthiness, then it would seem that the courts 
 of the country in which the ship belongs will look behind the 
 judgment in admiralty, receiving the decree as of little more au- 
 thority than the report of surveyors, or a similar statement, on the 
 authority of which it probably rests. And the sale will then be 
 valid or void, accordingly as the actual facts shall show it to 
 have been necessary and justified, or the opposite.-^ The courts 
 
 Franklin Ins. Co. 9 Pick. 466, the ship was in no immcdij^te danger of becoming 9, 
 wreck. It would have taken thirty or forty days to have communicated with the 
 underwriters, and to have received word back. The vessel being sold without notice of 
 her condition being given, the sale was held to be void. See also Peirce v. Ocean Ins. 
 Co. 18 Pick. 83. 
 
 1 Woods V. Clark, 24 Pick. 35. 
 
 2 The Tremont, I W. Kob. 163 ; Attorney-General v. Norstedt, 3 Price, 97 ; The 
 Helena, 4 Rob. 3. • 
 
 '■^ In Reid v. Darby, 10 East, 143, Lord Ellenborongh remarked, of tlie exercise by 
 admiralty courts of this jurisdiction: "No instance has been discovered, in which 
 such a power has been exercised in the admiralty court at home ; nor can we find any 
 terms in the vice-admiralty commission, or any principle upon which that practice can 
 be sustained, (which certainly, however, has obtained in the vice-admiralty courts 
 abroad,) of decreeing, upon the mere petition of the captain, the sale of a ship reported 
 upon survey to be unseavyorthy and not repairable, so as to carry the cargo to the 
 place of its destination, but at an expense exceeding the value gf the ship whca 
 
 6*
 
 66 ON THE LAW OF SHIPPING. [cook I. 
 
 of the United States have asserted that this subject is within 
 the general jurisdiction of admiralty, and that such a decree 
 may be made. And there are intimations, perhaps, that such a 
 decree would be the best protection of a rnaster, and that it 
 would be wise in him, therefore, to obtain it. It might be in- 
 ferred from this, that they would consider such a decree of a 
 foreign court of the same force as a decree of condemnation. 
 But we are of opinion that they would not only inquire into the 
 foundation on which sur-h decree was founded, and into all facts 
 bearing upon the question of jurisdiction, but also into the dis- 
 tinct question whether the facts connected with the condition of 
 the ship were such as justified the decree.^ 
 
 The practice of selling by decree of admiralty merely for un- 
 seaworthiness is not much known in this country, and the rule 
 
 repaired." The same doctrine is reafBrmed in Hunter v. Prinscp, 10 East, 378; Mor- 
 ris V. Robinson, 3 B. & C. 196, 203. T'le English court of admiralty, though they 
 admit, yet regret, the want of jurisdiction. The Fanny and Elraira, Edwards' Adm. 
 117, 119 ; The Warrior, 2 Dods. 288, 293 ; The Pitt, 1 Hagg. Adm. 240. 
 
 1. Thus, Mr. Justice Ston/, in the case of the Schooner Tilton, 5 Mason, 46.5, 474, 
 says : " To wliat is suggested in that case, (Reid v. Darby,) as to the want of jurisdic- 
 tion in the admiralty courts to decree the sale of a ship in a case of necessity upon an 
 application of the master, I, for orxC, cannot assent. I agree, that in such a case the 
 decree of sale is not conclusive upon the owner or upon third persons, because it is 
 made upon the application of the master, and not in an adverse proceeding. But I 
 cannot l)ut consider it as strictly within the admiralty jurisdiction. It is prima, facie 
 evidence of a rightful exercise of authority, but no more. The proceeding, being ex 
 parte, cainiot be deemed conclusive in favor of the party promoting it." See also Jan- 
 ney v. Columbian Ins. Co. 10 Wheat. 411, 418; Dorr v. Pacific Ins. Co. 7 Wheat. 
 581 ; Armroyd v. Union Ins. Co. 2 Binn. 394 ; Steinmetz v. United States Ins. Co. 2 
 6. & R. 293 ; The Dawn, Ware, 485, 487. 
 
 In Grant v. M'Lachlin, 4 Johns. 34, an American vessel was captured by a French 
 pi-ivatecr, and carried into port, but was never condemned as a prize. Subsequently 
 she was employed by the French government to carry passengers to Barracoa, and 
 arrived there in a dismantled condition. After remaining there several months, she 
 was sold by order of the Spanish commissary, and got off and repaired. She subse- 
 quently arrived in New York, where her original owners brought an action of ti-over 
 against the vendee. The court held that the sale was fair and bona Jide, and, being 
 made in accordance with the laws of Spain, was binding on all parties. Mr. Justice 
 ■Thompson said : " A sale according to the law of the place where the property is 
 must vest a title in the purcliaser, which all foreign courts are bound, not only from 
 comity, but on strong grounds of public utility, to recognize. Without this rule, thei-e 
 could be no safety in derivative titles. The only inquiry in these cases is. Was the sale 
 under a competent authority? " Where a sale is made by the advice of surveyors, it 
 is prinid facie valid, and the burden of proof is on the party seeking to impeach it. 
 Gordon r. ]Mass. F. & M. Ins. Co. 2 Pick. 249, 265.
 
 CII. Ill,] SALE UNDER A DECREE OF ADMIRALTY. 67 
 
 which permits such a decree to be examined into so freely is an 
 exception to the general rule, which makes a decree of admiralty 
 in rem binding upon all the world. But the reason of this rule 
 in some degree qualifies it. The reason is, that all persons who 
 have an interest in the property may interfere to protect it; but, 
 in order that they may do this, there must be proper notice 
 given, and reasonable opportunity afforded to them to assert and 
 maintain their claims. Probably it would never be a sufficient 
 reason for setting aside a decree of a foreign court of admiralty, 
 that the person who seeks to avoid it had not actual notice or 
 opportunity to present his rights and claims before the court, pro- 
 vided the usual notice and opportunity were given generally, and 
 these were such as would import or carry with them a sufficiency 
 of notice. But if these were wanting, if the proceedings were 
 hastened, or so conducted that all persons interested would be in 
 fact exposed to be deprived of their property unheard, this 
 would taint the decree, and might have the full effect of fraud 
 upon it.i So if the property sold were never within the posses- 
 sion or reach of the court, either actual or constructive, or if the 
 question upon which the case depended was not within their 
 
 1 Sawyer v. Maine F. & Mar. Ins. Co. 12 Mass. 291; The Mary, 9 Cranch, 
 126. In Bradstreet v. Neptune Ins. Co. 3 Sumn. 600, 6,07, Mr. Justice Stori/ is 
 very explicit upon this point. He says : " If a seizure is made and condemnation is 
 passed without the allefjation of any specific cause of forfeiture or offence, and with- 
 out any public notice of the proceedings, so that the parties in interest have no oppor- 
 tunity of appearing and making a defence, the sentence is not so much a Judicial sen- 
 ttnce as an arbitrary sovereign edict. It has none of the elements of a judicial pro- 
 ceeding, and deserves not the respect of any foreign nation. It ought to have no 
 intrinsic credit given to it, either for its justice or its truth, by any foreign triimnal. It 
 amounts to little more, in common sense and common honesty, tlian the sentence of the 
 tribunal, which first punishes and tiien hears the part}' — castit/dtqiic, aiulitijiie. It may 
 be binding u])on the subjects of that particular nation. But upon the eternal ])rinci])les 
 of justice it ought to have no binding obligation upon tiie riglits or proi)crty of the 
 subjects of other nations ; for it tramples underfoot all the doctrines of international 
 law; and is but a solemn fraud, if it is clothed with all the forms of a judicial i)rocecd- 
 ing. I hold, therefore, that if it does not a]>pear upon the face of the record of tlie pro- 
 ceedings ill rem, that some specific offence is charged, for which the forfeiture in ram is 
 sought, and that due notice of the proceedings has been given, either personally or by 
 some pul)lic proclamation, or by some notification or monition, acting in iria or attach- 
 ing to the thing, so that the jjartics in interest may appear and make defence ; and in 
 l)oint of fact the sentence of condemnation has passed upon ijc parte statements without 
 their appearance, it is not a judiciaL sentence, conclusive upon the rights of foreigners, 
 or to l)e treated in the tribunals of foreign nations as importing verity in its statements 
 or proofs."
 
 68 ON THE LAW OF SHIPPING. [book I. 
 
 jurisdiction, this would show the proceedings to be either 
 grounded upon a fatal mistake, or upon intentional fraud. But 
 this possession may, as it is now settled, be constructive; for 
 both the English and the American admiralty will, as we shall 
 state more fully in another part of this work, condemn as prize a 
 captured ship which has been carried into a neutral port, and is 
 lying there at the time of the decree.^ 
 
 The court must be a regular court, such as is recognized by 
 the law of nations. It is settled, at least for England and 
 America, that the sufficiency and authority of the court, as well 
 as its jurisdiction, may be inquired into.^ And the courts of 
 neither country acknowledge the authority of a consul, nor, in- 
 deed, of any other person, sitting as judge in a neutral port 
 under a commission from his own country.^ 
 
 If a ship has been wrecked in a foreign port, and there aban- 
 doned, and thereupon the government of that country sell the 
 ship according to the laws thereof, a purchaser in good faith 
 takes a good title.* 
 
 1 The Christopher, 2 Rob. Adm. 207 ; The Henrick & Maria, 4 Rob. Adm. 43, 54 ; 
 
 affirmed on appeal, 6 Rob. Adm. 139 n. ; The Falcon, 6 Rob. Adm. 194 ; The Comet, 
 5 Rob. Adm. 285 ; The Victoria, Edwards' Adm. 97 ; Hopner v. Appleby, 5 Mason, 
 71 ; The Arabella and The Madeira, 2 Gall. 368 ; Cheriot v. Foussat, 3 Binn. 220. 
 But see Wheelwright v. Depeyster, 1 Johns. 471, contra. 
 
 ■^ The Flad Oven, 1 Rob. Adm. 135; The Henrick & Maria, 4 Rob. Adm. 43; 
 Assievedo v. Cambridge, 10 Mod. 77 ; Hudson v. Guestier, 4 Cranch, 293 ; Rose v. 
 Hiaicly, 4 Cranch, 241 ; Cheriot v. Foussat, 3 Binn. 220; Wheelwright v. Depeyster, 
 1 Johns. 471; Snell v. Faussatt, 1 Wash. C. C. 271 ; Francis v. Ocean Ins. Co. 6 
 Cowen, 404 ; Ocean Ins. Co. v. Francis, 2 Wend. 64 ; Cucullu v. Louis. Ins. Co. 17 
 Mart. 464 ; Bradstreet v. Neptune Ins. Co. 3 Sumn. 600, 605 ; TurnbuU v. Ross, 1 
 Bay, 20. 
 
 3 The Flad Oyen, 1 Rob. Adm. 135; The Kierlighett, 3 Rob. Adm. 96; Havelock 
 V. Rockwood, 8 T. R. 268; Wheelwright v. Depeyster, 1 Johns. 471. 
 
 * Grant v. M'Lachlin, 4 Johns. 34. In the case of the Schooner Tilton, 5 Mason, 
 465, the vessel being wrecked on the coast of North Carolina, was sold by a wreck- 
 master as she lay, under the laws of this State ; and Story, J., said, p. 479 : " Where 
 the sale is made by a wreck commissioner in cases falling within the language of the 
 law, 'without any person present to claim the same as owner,' a very different interpre- 
 tation ought, as I conceive, to be given to his act. He is there made virttite officii, the 
 agent of the owner for public purposes, and his authority to sell, if exercised in good 
 
 fiiith, is conclusive to transfer the property to any purchaser at the sale Such a 
 
 sale, however, though generally conclusive upon the title of the owner, is so only in 
 cases of good faith. A statute sale by a public officer may be impeached, as, indeed, 
 more solemn acts may be, for fraud ; and the purchaser can protect himself only by 
 showing that he is a bona Jide holder, without notice of, or participation in, the fraud. 
 A fortiori, a sale made by the consent of the owner or his agent may be avoided for 
 fraud."
 
 CH. III.] COMMON RULES RESPECTIXG THE SALE OF A SHIP. . 69 
 
 SECTION V. 
 
 HOW FAR THE COMMON RULES RESPECTING THE SALE OF A CHATTEL 
 APPLY TO THE SALE OF A SHIP. 
 
 1. As to the Rules of Evidence and Agency. 
 
 The common rules as to evidence, agency, warranty, and the 
 like, in respect to sales of personal property, apply to the sales 
 of a ship. Thus, for example, if a ship is ordered to be built 
 for a particular purpose, there is an implied warranty that she 
 shall be fit for that purpose.^ So, also, the rule of caveat emptor 
 applies.^ But material representations, made to afl'ect the sale, 
 and doing this, have much the same effect as warranty.^ If, 
 however, the contract of sale be reduced to writing, it would, 
 generally at least, be very difficult to add new stipulations, or 
 introduce representations and assertions, merely by oral evidence.* 
 If the ship be sold, as is done more often abroad than in this 
 country, "with all her faults," this was once held to make it 
 obligatory on the seller to disclose a fault which the buyer could 
 not possibly ascertain.^ The later and prevailing doctrine seems 
 to be, that the seller may, under such a sale, be silent as to any 
 or all the faults which he knows, without any reference to the 
 buyer's ability to discover them ; but he must not be active in 
 
 1 See Shepherd v. Pyhns, 3 Man. & G. 868; Chambers v. Crawford, Addison, 150. 
 In Cunningham v. Hall, U. S. Dist. Ct., Mass., March, 1857, the respondent built a 
 vessel for the libellant. During the first voyage she leaked constantly, and at the end 
 of it her copper was taken off, and it was found that the leak was owing to a defective 
 plank. An action was brought against the builder to recover the expenses incuired in 
 making the repairs, and for demurrage. Held, that there was an implied warranty on 
 the part of the l)uilder to furnish a sea-worthy vessel, and he was, therefore, liable for 
 all damages resulting from his breach of the contract. 
 
 - But tlie law of Louisiana imposes upon the seller the obligation of warranting the 
 vessel sold against its hidden defects, which are those which could not be discovered by 
 simple inspection. Bulklcy r. Ilonold, 19 How. 390. 
 
 3 Schneider v. Heath, 3 Campb. .506; Shepherd v. Kain, 5 B. & Aid. 240. See, 
 however, Dyer v. Lewis, 7 Mass. 284. 
 
 * Pickering v. Dowson,4 Taunt. 779 ; Freeman r. Baker, 5 B. & Ad. 797, 5 C & P. 
 475; Kain r. Old, 2 B. & C. 627; Mumford v. IM'Phcrson, 1 Johns. 414. 
 
 5 Mellish V. Motteux, Peak. Cas. U5.
 
 70 . ON THE LAW OF SHIPPING. [book I. 
 
 concealing them, for this is a positive fraud.^ The rule cannot 
 be better illustrated than by the old dictum in RoUe's Reports ; 
 if one sells a blind horse, he is not held without warranty ; but 
 
 ^ In Baglehole v. Walters, 3 Campb. 154, the bill of sale contained the words, "in 
 excellent condition ; " but it does not appear whether or not the defects alleged by the 
 vendee were such as to render such a description materially incorrect, and no notice 
 is taken of this circumstance by the couit. " I cannot," said Lord Ellenborouc/h, " sub- 
 scribe to the doctrine of Mellish v. Motteux, (supra,) although I feel the greatest 
 respect for the authority of the judge by whom it was decided. "Where an article is 
 sold ' with all faults,' I think it is quite immaterial how many belonged to it within 
 the knowledge of the seller, unless he used some artifice to disguise them, and to pre- 
 vent their being discovered by the purchaser. The very object of introducing such a 
 stipulation is to put the purchaser on his guard, and to throw upon him the burden of 
 
 examining all faults, both secret and apparent It would be most inconvenient 
 
 and unjust, if men could not, by using the strongest terms which language affords, 
 obviate disputes concerning the quality of the goods which they sell. In a contract 
 such as this, 1 think there is no fraud, unless the seller, by positive means, renders it 
 impossible for the purchaser to detect latent faults." See, also, Schneider v. Heath, 3 
 Campb. 506. If a ship is represented to have been built in a certain year, whereas she 
 was launched the year previous, the buyer may recover damages for the deceit, though 
 she was sold with all her faults. Fletcher v. Bowsher, 2 Stark. 561. 
 
 And where the ship was described in the bill of sale as " copper fastened," whereas 
 she was in reality only partially so, and not what was known in the trade as a copper 
 fastened vessel ; this was considered a breach of warranty. " With all faults," say the 
 court, " must mean with all faults which it may have consistently with its being the 
 thing described. Here the ship was not a copper fastened ship at all." Shepherd v. 
 Kain, 5 B. & Aid. 240. 
 
 Where the bill of sale represented the vessel to be of greater dimensions and burden 
 than she really was, it was held that the vendee could not maintain case against the 
 vendor for false affirmation and promise. Dyer v. Lewis, 7 Mass. 284. The court do 
 not seem to have considered this description as in the nature of a warranty. See also 
 post, ch. 8, sect. 2. So in a late English case, 5 Exch. 779, Taylor v. BuUen, 1 Eng. 
 L. & Eq. 472, where the ship was described as " the fine teak built bark Intrepid, A 
 No. 1, well adapted for a passenger ship," and the document concluded with the 
 words, " to be taken with all faults, without any allowance for deficiency, etc., or any 
 defect or error whatsoever. The plaintiff declared on a breach of warranty, alleging 
 that the ship was not "teak built," nor A No. 1, nor well adapted for a passenger 
 ship. The court were of opinion that this was not a warranty of any thing more than 
 that the vessel in question was a bark, and that all errors of description were protected 
 by the clause, " without allowance for any error." Shepherd v. Kain was admitted by 
 the court to be correct, but it was held that the words at the bottom of the memoran- 
 dum were used for further protection. 
 
 This knowledge of the vendor of the existence of the defects, we have seen, is imma- 
 terial, if he use no deceit iii order to conceal them, and evidence of parol representa- 
 tions as to the condition of the ship is not generally admissible where there is a bill of 
 sale ; but where these two circumstances concur, that is, where the vendor knowingly 
 makes such misstatements, this we presume would be conclusive evidence of fraud, 
 sufficient to vitiate the bill of sale. See the cases, supra.
 
 CH. III.] COMMON RULES RESPECTING THE SALE OF A SHIP. 71 
 
 if he sells a horse whose missing eye is supplied by a glass eye, 
 he is liable for the deceit.^ 
 
 2. What are the Appurtenances of a Ship. 
 
 How much passes by the word "ship," or the phrase "ship 
 and her appurtenances, — or apparel, — or furniture," — or the 
 like, cannot be positively determined by any definition. Stowell 
 and Abbott agree, that whatever is on board a ship for the 
 objects of the voyage and adventure in which she is engaged, 
 belonging to the owners, constitutes a part of the ship and her 
 appurtenances, within the meaning of the English statute of 53 
 Geo. 3, c. 139.2 ^Jq define what would pass by these, or similar 
 words, in a sale, we should add to this definition some expres- 
 sions denoting that the thing in connection was distinctly con- 
 nected with the ship and the proper use of her. Usage would 
 have much effect in deciding this question ; and it is obvious 
 that things may be part and parcel of a "ship" at one time and 
 place, and under some circumstances, and not at others. In the 
 note we show all that has been done to define the term by adju- 
 dications.^ 
 
 1 Southerne v. Howe, 2 Rol. R. 5. " Si home vend chivaH que est lame null action gist 
 peur ceo, mes caveat emptor ; lou jeo vend ckivall que ad null oculus la null action qist ; 
 autrement lou il ad un counterfeit fanx et Bright Eye." These words liave generally been 
 understood as in the text; but Mr. Olijjhant, in his work on Horses, p. 73, savs : 
 " Probably by 'Bright Eye ' is meant 'glass eye,' or gutta serena, (which is a palsy of 
 the optic nerve, and very difficult to detect,) and the words, ' counterfeit et faux ' may 
 be an attempt of the reporter to explain an expression which he did not understand. 
 Because jjutting a glass eye into a horse is very far in advance of the sharpest practice 
 of the present day, or of any former period." This seems reasonable ; and then the 
 case cannot be cited to illustrate the law of sale as stated in the text, which, liowcver, 
 rests upon sufficient reason. 
 
 2 The Dundee, 1 Hagg. Adm. 109 ; Gale v. Laurie, 5 B. & C. 156. 
 
 8 In Kynter's Case, 1 Leon. 46, it was decided by the court, that ballast was not included 
 in the furniture appertaining to a shi|), on the ground that the ship may sail without it, 
 as where the cargo serves instead. And this seems to be the reason assigned by Lord 
 Ellenborough, in a modern case, Lano r. Neale, 2 Stark. 105, for holding that iron kent- 
 ledge, (pigs of iron cast into a particular form for ballast, see McCuUoch's Dictionary 
 of Commerce, under " Kentledge,") was not included in a bill of sale of a ship with 
 all her stores, tackle, apparel, etc., in the usual form, because, .said his lordship, "it 
 could not be considered as part of the ship or necessary stores, since common ballast 
 might have been used." So in Burciu»i-d v. Tapscott, 3 Duer, 36.3, where the bill of 
 sale conveyed the vessel with her masts, bowsprit, sails, boats, anchors, cables, and all 
 Other necessaries thereto appertaining and belonging, it was held, that ballast of any
 
 72 ox THE LAW OF SIIIITIXG. [bOOK I. 
 
 A ship would undoubtedly remain and continue to be the 
 same ship, however extensively or frequently repaired ; and even 
 
 kind whatsoever, on board at the time of the sale, would not pass as a necessary 
 appurtenance to the sliip. It would seem to be deducible from tliese cases, that 
 nothing is to be considered an appurtenance of a ship, unless requisite to its proper use, 
 although connected with it at the time. 
 
 In Hoskins v. Pickersgill, 2 Marsh. Ins. 727, Lord Mansfield was of opinion, that the 
 boats, rigging, and stores were included in the insurance on a whaling ship, her tackle, 
 furniture, etc.; but as to the fishing lines, tackle, and stores, the question must depend 
 upon the usage of the trade. The jury negatived the existence of this usage ; and when 
 the case came up on motion for a new trial, the judges were unanimous that they were 
 not part of a ship's tackle or furniture. Park. lus. (8th edit.) 126. That provisions, put 
 on board for the use of the crew, are protected by a policy on the ship and furniture, 
 was considered as well settled in Brough v. Whitmore, 4 T. R. 206. But as to the 
 boat, which Lord Mansfield likewise included, there seems to exist more uncertainty. 
 Both Molloy, B. 2, ch. 1, § 8, and Beawes, p. 56, hold that in the sale of a ship, etc., 
 the boat does not pass, and the point was determined the same way in an early case,, in 
 this country. Starr v. Goodwin, 2 Root, 71. 
 
 On the other hand, iu Briggs v. Strange, 17 Mass. 405, a boat, cable, and anchor 
 seemed to have been classed together, both by counsel and court, as apjmrtenances of a 
 ship, which could not be separated from her, so long as they were requisite to her use 
 and safety, but might be attached by the sheriff, when the vessel was at the wharf and 
 stood in no need of them. See also Eoccus, n. 20 ; Straccha de Navibus, Pars 2, No. 
 12. In a policy of insurance, the word ship usually includes the boat. Hall v. Ocean 
 Ins. Co. 21 Pick. 472 ; Emerig. e. 6, § 7, Meredith's Ed. 143. See also Shannon v. 
 Owen, 1 Man. & R. 392. 
 
 So a rudder and cordage purchased for a ship are part thereof. Woods v. Russell, 
 5 B. & Aid. 942. In Goss v. Quinton, 3 Man. & G. 825, A ordered a rudder to be 
 made for his ship. The ship-builder began to work upon it, and stated that it was for 
 A. This fact was not communicated to A till after the bankruptcy of the builder, 
 which took place while the rudder was yet unfinished. A, being then informed that 
 the rudder was intended for him, took it away. Held, that the property was in him. 
 This case is, however, doubted in the Exchequer Chamber in the case of Wood v. 
 Bell, 25 L. J. Q. B. 321, 36 Eng. L. & Eq. 148, where it was held, that materials 
 which had been fitted to and formed part of the ship would pass, even though they 
 were not attached to the ship, but that those which had merely been bought for the 
 ship, and intended for it, would not pass. Jervis, C. J., said : "Nothing that has not 
 gone through the ordeal of being approved as pai-t of the ship, passes, in my opinion, 
 under the contract." Tliis decision overrules, in part, the same case in the Queen's 
 Bench, 5 Ell. & Bl. 772, 34 Eng. L. & Eq. 178. See also Baker v. Gray, 17 C. B. 
 462, 34 Eng. L. & Eq. 387. In The Alexander, 1 Dods. 278, a question arose whether 
 a bottomry bond on the ship, her tackle, apparel, furniture, etc., could lie enforced 
 against the sails and rigging, whicii had been, according to the custom of the port, de- 
 tached from the vessel for safe-keeping, and with the view of being returued to the ship 
 when she was about to sail. The court held that it could. 
 
 In the case of The Dundee, 1 Hagg. Adm. 109, Lord StoiceU decided that the 
 fishing stores of a vessel engaged in the Greenland fisheries were appurtenances of the 
 ship within the meaning of 53 Geo. 3, c. 159, restricting the liability of ship-owners in 
 cases of loss to the value of the ship, freight, etc. " The word appurtenances," said he.
 
 CH. III.] COMMON RULES RESPECTING THE SALE OF A SHIP. 73 
 
 if at last all her original materials had disappeared.^ So, if she 
 were taken to pieees with intent to reconstruct her and this was 
 
 "is a word of wider extent than fimiifiu-e, and may he properly applied to many things 
 that could not be so described (with propriety, at least) in a contract of insurance. 
 It may not be a simple matter to define wiiat is, and what is not, an appurte- 
 nance of a ship. There are some things tliat are universally so, things which must be 
 appurtenant to every ship, (jn'a ship, be its occupation what it may. But, I think it is 
 rather gratuitously assumed that particular things may not become so, from their im- 
 mediate and indispensable connection with a ship, in the particular occupation to 
 which she is destined, and in which she is engaged. A ship may have a particular em- 
 ployment assigned to her, which may give a specialty to the apparatus that is necessary 
 
 for that employment The word ' appurtenances ' must not be construed with a 
 
 mere reference to the abstract, naked idea of a ship ; for that which would be an incum- 
 brance to a ship one way employed, would be an indispensable equipment in another, 
 and it would be a preposterous abuse to consider them alike in such dififercnt positions. 
 You must look to the relation they bear to the actual service of the vessel." 
 
 This decision was affirmed in the Court of King's Bench. Gale i'. Laurie, 5 B. 
 & C. 156, where it came up on a declaration in prohibition. Abbott, C. J., however, 
 makes a distinction between the use of the word in the statute and in contracts of in- 
 surance, which renders it doubtful whether such stores would pass under a bill of sale 
 of a ship, etc., and leaves it to be determined by usage. " We think," he says, (p. 164,) 
 " that whatever is on board a ship for the object of the voyage and adventure on which 
 she is engaged, belonging to the owners, constitutes a part of the ship and her appur- 
 tenances within the meaning of this act, whether the object be warfare, the conveyance 
 of passengers or goods, or the fishery. This construction furnishes a plain and intelli- 
 gible general rule ; whereas, if it should be held that nothing is to be considered as part 
 of the ship that is not necessary for her navigation or motion on the water, a door 
 would be opened to many nice questions, and much discussion and cavil. It is true, 
 that, in the case of insurance, these stores are not considered as covered by an ordinary 
 policy on the ship. But insurance is a matter of contract, and the construction of the 
 contract depends in many cases upon usage. And the construction of a policy can 
 furnish no rule for the construction of this act of parliament, which was passed for pur- 
 poses of a different nature." 
 
 The cargo of a whaling vessel does not pass by a bill of sale of the ship, stores, and 
 their appurtenances. Langton v. Ilorton, 5 Beav. 9, 23 Legal Observer, 524. 
 
 A chronometer belonging to the owner, which was on board at the time of the 
 sale, was held to pass by the sale of the ship, the vessel being tlien at sea. s. c. 6 
 Jurist, 910. But in a similar case in IMaine, the bill of sale was held, in the absence of 
 any agreement of the parties or usage of trade shown, not to include the chronome- 
 ter as an api)urtenancc of the shij), Mr. Justice Emery remarking, however, " We do 
 not intend to decide but what, in the improvements of nautical science, chronometers 
 may become neccssaiy appurtenances to ships." Richardson v. Clark, 15 Maine, 
 421, 425. 
 
 1 Emerigon, in his treatise on Insurance, ch. 6, § 7, Meredith's Ed. 144, says: "A 
 ship is always presumed the same, though all the materials which at first had given it 
 existence have been successively changed : Navim, si adeo swpe refecta esset, ut nulla 
 tabula eadem permane ret, qucE non nova fuisset, nihilnminus eandem 7)avim esse existimari. 
 The Athenians preserved the galley of Sulaniis, during more than 1,000 vcars, from 
 
 7
 
 74 ON THE LAW OF SHIPPING. [BOOK I. 
 
 done. But it is said, that, if taken to pieces without this intent 
 and afterwards reconstructed in part, she is a new ship.^ 
 
 3. Of the Sale of a Skip by the Builder. 
 
 The builder of a ship is its first owner. It is true, that a 
 party might contract with a builder to perform all the labor 
 upon materials which that party would supply, and then the 
 ship would belong to him for whom it is built, from the begin- 
 ning, and would never be the builder's. But this is never done 
 in practice. The ship-builder constructs the vessel either upon 
 an order, or a contract for building or sale, or to sell it to any 
 purchaser who may offer, or to own it himself. But it is possi- 
 ble, that the contract for building and sale may be such as to 
 make the ship become the property of the future owner, by in- 
 stalments, paid in the course of the building. The cases are 
 not quite clear on this subject ; there is in them some reference 
 to provisions in the English statutes as to builders' certificates, 
 etc., which do not exist in our own ; but on general principles 
 we should say, that, where the owner is to pay for her by instal- 
 ments, if the instalments are merely on time, without reference 
 to the state or forwardness of the ship, the property remains in 
 the builder until the ship is finished and delivered ; and if she 
 be lost or destroyed in the mean time, it is the builder's loss, 
 and he is still bound to build, finish, and deliver a ship at the 
 appointed time. But if the instalments, although on time, are 
 graduated, expressly or impliedly, upon the condition of the ship. 
 
 the time of Theseus until the reign of Ptolemy Philadelphus. They were at great 
 pains to replace the old with new planks : and hence arose a great dispute among the 
 philosophers of the time ; namely, whether this vessel, of which there did not remain a 
 single original piece, was the same which conveyed Theseus, the conqueror of the 
 Minotaur, in returning from the isle of Crete. The same question even now is stirred 
 on the subject of the Bucentaur, a kind of sacred galley used on Ascension day in every 
 year, by the nobles of Venice, when the doge performs the ceremony of espousing the 
 sea. Though all the members of a body or its parts are changed through the lapse 
 of time, nevertheless, by force of substitution the body is still presumed the same : 
 Licet spatio temporls singula corpora viutentiir, tamen, mediante suhrogatione , semper dicitur 
 eadem res. It is always the same people, the same senate, the same legion, the same 
 edifice, the same flock, the same ship, etc. ; Idem popidus, eadem navis, idem ccdijicium, 
 idem grex, idem vivarium," etc. See also Malynes' Lex ^lerc. 123. 
 1 Molloy, Book 2, ch. 1, § 6.
 
 CII. III.] COMMON RULES EESPECTIXG THE SALE OF A SHIP. 75 
 
 and are intended to pay the builder for work and labor and ma- 
 terials to the time of payment, and to purchase the fabric as it 
 then existed, each payment is in full for a jjurchase of the ship 
 at the time it is made, and has the effect of passing the property 
 absolutely to the vendee, subject only to the lien of the builder 
 for the purpose of finishing the ship. 
 
 It will be seen in the note below, that the cases on this sub- 
 ject are quite irreconcilable. We think, however, the law must 
 be this : A may sell his lumber, out of which a ship is to be 
 made, to B, and B may buy it whenever they please, and where 
 ever the lumber may be. And if, from all the facts, it is plain 
 that it was the intention of the parties that one should sell and 
 the other buy the fabric before it was completed, there is nothing 
 in the law to prohibit or avoid the bargain. But such a bargain 
 is not proved by the mere fact of instalments, however grad- 
 uated, nor by the employment by the payer of a superintendent, 
 (on which fact great stress is laid in some of the cases,) 
 although these facts may go far towards identifying the struc- 
 ture, and sustaining an action for a breach of the contract in not 
 finishing or not selling that very ship ; and they may have an 
 important bearing on the amount of damages. But they may, 
 nevertheless, be insufficient to prove an actual sale and transfer 
 of the property.^ 
 
 1 The general principle, that a sale cannot be executory and that there can be no 
 sale of a thing not in existence at the time, but merely a contract to sell, which passes 
 no property in the object itself until it is finished and delivered, but gives a mere per- 
 sonal right of action, applies to a ship as to any other chattel, although payment be 
 made in advance. Mucklow v. Mangles, 1 Taunt. 318. 
 
 In Woods V. Russell, .5 B. & Aid. 942, the circumstances of the case were some- 
 what peculiar. " This ship," said Abbott, C. J., in delivering the opinion of tlie court, 
 " is liuilt upon a special contract, and it is part of the terms of the contract, that given 
 portions of the price shall be paid according to the progress of tlie work; ])art when 
 the keel is laid, part when they are at the light plank. The payment of tiicse instal- 
 ments appears to us to ajipropriatc specifically to the defendant tlie very ship so in 
 progress, and to vest in tiie defendant a property in that t>\np, and that, as between 
 him and the builder, he is entitled to insist upon the comj)letion of that very ship, and 
 that the builder is not entitled to recpiire him to accept any other." Altiiough the case 
 itself was decided on a different ground, namely, that the builder having signed his 
 certificate to enal)le the purciiaser to have the ship registered in his own name, the 
 property vested in tiie latter from the time of the registry, tlie authority of this dic- 
 tum was recognized in Battersby v. Gale, cited 4 A. & E. 4.58, and in Atkinson v. Bell, 
 8 B. &. C. 277, 282, by Dayley, J., who in alluding to Woods v. Russell, said: "As by
 
 76 ON THE LAW OF SHIPPING. [bOOK I. 
 
 The builder transfers the ship to the first purchaser by the 
 original bill of sale, which is called in England the grand bill 
 
 the contract given portions of tlie price were to be paid according to the progress of the 
 work, by the payment of those portions of the price, the ship was irrevocably appro- 
 priated to the j)erson paying the money. That was a purchase of the specific articles 
 of which the ship was made." And also, though with considerable doubt and hesita- 
 tion, in Clarke v. Spcnce, 4 A. & E. 448, where the court seem to have rested their 
 acquiescence in the doctrine of Abbott, C. J., more upon the ground of precedent 
 and expediency than principle. The case itself was similar to Woods v. Russell, with 
 the omission of the registration, and the additional fact that an agent was employed by 
 the purchaser to superintend the building and approve the materials employed. 
 Whence "it follows," said Williams, J., "that, as soon as any materials have been 
 approved by the superintendent, and used in the progress of the work, the fabric con- 
 sisting of such materials is appropriated to the purchaser, otherwise the superintendent 
 might be called upon, when one vessel had been nearly constructed, to begin his work 
 de novo, and superintend the building of a second : and, in this point of view, the ap- 
 pointment of a superintendent by the contract appears to be of considerable impor- 
 tance." 
 
 In Moody v. Brown, 34 Maine, 107, there is a dictum, which admits that where pay- 
 ment is to be made by instabnents the property will pass. In New York, however, a 
 different rule of law is laid down, and it is there held that in such a case the property 
 will not pass until the vessel is completed and delivered. Merritt v. Johnson, 7 Johns. 
 473. See also Johnson v. Hunt, 11 Wend. 135. It was so held also in a case where, 
 in addition to the price being paid by instalments, a person was appointed by the 
 vendee to superintend the work, though the court admitted that in such a case the 
 builder would be bound to deliver the identical vessel. Andrews v. Durant, 1 Kern. 
 35. In Scotland, the law as it is in England was settled by a very early case. Smith 
 V. Duncansou's creditors, decided in 1786, Bell on Sales (1844) p. 17. But where 
 payment is to be made in a specific manner, without reference to the progress of the 
 work, the property will not pass. Laidler v. Burlinson, 2 M. & W. 602. In the late 
 case of Wood v. Bell, 5 Ellis & B. 772, 34 Eng. L. & Eq. 178, the vessel was to be 
 paid for by instalments, the first four on certain days named and unconditionally ; with 
 no express reference to the stage in her building to which she might be advanced on 
 the arrival of those days, and it was not apparent that the sums specified for each pay- 
 ment were to be commensurate with her probable progi-ess on the days named. The 
 next three instalments were also made payable on days certain ; but the first two of 
 these payments were made to depend on her having been carried on to certain specific 
 stages in her building on those days respectively. The payment of the third depended 
 on her being, on the day named, built according to contract. The next circumstance 
 was, that the vessel was to be built under the direction of a person appointed by the 
 future purchaser. It also appeared in evidence that the builder, at the instance of the 
 plaintifl', punched his name on the keel, for the express purpose of securing the vessel 
 to the phiintift', and, although he refused after this to execute a formal assignment to 
 the plaintiff, yet at the same time he admitted her to be the plaintiff's property. It 
 was held that whether the property passed was to be shown by the intention of the par- 
 ties as gathered from all the circumstances of the case. In regard to the payment by 
 instalments, no decided opinion was expressed. As to the appointment of a person to 
 superintend the work, tlie following language is used : "It certainly could not be con- 
 templated that he was to superintend the building of more than one vessel under this
 
 CH. III.] COMMON RULES RESPECTING THE SALE OF A SHIP. 77 
 
 of sale, to distinguish it from the bills of sale made on subse- 
 quent transfers of the ship. But, as we have already remarked, 
 
 contract, or that he was to superintend the building of any vessel which Joyce could, 
 at his pleasure, transfer to another ])erson. Still, it must be admitted, that this is by 
 no means conclusive as to the question of property ; it may he that it would have been 
 a breach of contract not to deliver the specific vessel to the plaintiff as soon as she was 
 completed, and yet the property, until she was completed, might have reiniuned in 
 Joyce." But it was held, that, however ambiguous these circumstances might be, still 
 the punching of the name, and the declaration of the builder, were conclusive to show 
 that it was the intention of the parties that the vessel should pass to the plaintiff. 
 Affirmed in the Exchequer Chamber, 25 L. J., B. Q., 321, 36 Eng. L. & Eq. 148. In 
 Baker v. Gray, 17 C. B. 462, 34 Eng. L. & Eq. 387, payments were to be made by instal- 
 ments from time to time, and it was stipulated that if the vessel was not finished within 
 a certain time the vendee might enter and take possession of her, and that the property 
 in her should be deemed, from the payment of the first instalment, to be in the vendee. 
 It may, therefore, be considered as doubtful whether the mere fact of payment being 
 made by instalments, although commensurate with the progress of the vessel, is of itself 
 proof that the parties intended the property to pass, and a contract similar to the one 
 in Baker v. Gray has at least simplicity and safety to recommend it. It was decided 
 in Glover v. Austin, 6 Pick. 209, that, although a contract to build a ship was inopera- 
 tive to pass the property therein, yet a conveyance of the keel, after it had been laid, 
 vested the property of that in the vendee, and drew after it all subsequent additions, 
 according to the maxim of the Civil Law, " proprietas navis carince causam sequitur." 
 See also Sumner v. Hamlet, 12 Pick. 76, 82. 
 
 An agreement to pledge a vessel then building to cover certain advances, and that the 
 pledgee may purchase her at a certain rate, is neither a sale nor a mortgage or pledge, 
 and transfers no projierty in the vessel, although the advances are made. Bonsey v. 
 Amee, 8 Pick. 236. But in Reid v. Fairbanks, 13 C. B. 692, 24 Eng. L. & E(i. 220, 
 ■where, under an agreement to build a sbij), tlie defendant, to secure the plaintiffs, as well 
 for the advances they had ]^revioush' made to him as for those which they should be 
 called upon to make to complete tlie vessel, made them a bill of sale thereof, which 
 stated that he transferred to them a certain ship in progress of building, (descriliing it,) 
 and also six hundred tons of timber to finish the vessel, "to have and to hold the said 
 ship or vessel, etc., to the said J. Head, wiicn the said ship or vessel shall be completed 
 and finished, in as full, ample, and perfect a manner as if the said ship or vessel was 
 ready for sea, and ready to be delivered to the said J. Read at the time of executing 
 these presents," it was held by the court that the property passed to the plaintiffs by 
 the bill of sale, and that the hahcvdmn had not the effect of postponing the vesting 
 thereof to the time when the ship should i)e completed. Jervis, C. J. said : " There is 
 no doubt the whole question is one of construction of contract. There may be cases 
 in which such a contract would have the effect of transferring the projierty only at a 
 future period, or it may have the effect of transferring the property at once ; but it 
 seems to me that here it was intended to pass the property at once, because the object 
 of the instrument was to give the plaintiffs security for advances. It has been con- 
 tended that it is no security, but merely a contract between the parties ; but it professes 
 to be a security, and it caimot be so unless it operate as a present sale, and it docs not 
 signify what happens afterwards. It is, therefore, unimportant to consider the effect 
 of the registration of the vessel. I think it very likely tliat if there had been no bill of 
 
 7*
 
 78 ON TUB LAW OF SHIPPING. [bOOK I. 
 
 this distinction does not exist, or not for any practical purpose, 
 in this country.^ 
 
 The builder should deliver to the first owner his certificate, 
 that the owner may give it to the collector, as required by the 
 statute of registration.^ 
 
 4. Of the Possession of the Purchaser. 
 
 The ship, although only a personal chattel, is one of a pecul- 
 iar character ; and these peculiarities introduce some modifica- 
 tions in the principles of the law of sale, or in the application of 
 them ; particularly in the rule as to delivery and possession. 
 This rule, in reference to chattels generally, is, that if possession 
 do not pass at once, or with but little delay, it is a badge of 
 fraud, and the sale is defeated. But a ship may be sent to sea, 
 not merely to go to the antipodes, but to pass from port to port 
 as profitable engagements shall offer, for many years. It is 
 certain, however, that the owner should, in the mean time, be 
 able to sell his ship, if he wishes to. And the rule which we 
 would lay down is this : that a bond fide sale, on consideration, 
 with whatever transfer of papers and of registry can be made, 
 is valid, if possession be taken by the purchaser as soon as 
 is practicable by reasonable endeavor, however long it may be 
 before such possession is or can be taken. 
 
 The principles, we should say, are these : first, that the sale, 
 meaning a transfer on good consideration and in good faith, does 
 not give merely an inchoate right, to be completed by posses- 
 sion ; but does in fact pass the whole property in the ship, and 
 is a complete transfer thereof, vesting the same in the pur- 
 
 sale there would still have been enough to bind the property in the ship. But it is 
 unnecessary to consider that part of the case." The effect of these decisions seems to 
 be that the time when the property in a ship passes, on a contract for building her, is a 
 question of intent to be gathered from all the circumstances of the case. "Where the 
 property does pass before the completion of the ship, the builder has a comfmon law 
 lien, or right of possession to finish her and earn the full price. Woods v. Russell, 
 supra. 
 
 1 See ante, p. .57, note 2. 
 
 2 Act of 1792, ch,l, § 8, 1 U. S. Stats, at Large, 291. As to the effect of the transfer 
 of the builder's certificate to the purchaser uader the English Registry Acts, see Woods 
 V. Russell, 5 B. &. Aid. 942.
 
 CH. III.] COMMON RULES RESPECTING THE SALE OF A SHIP. 79 
 
 chaser, but liable to be divested by his laches in taking posses- 
 sion. The second would be this : that the purchaser is not 
 bound to take possession as soon as possible by any means ; he 
 is not bound to go, or send an agent, or even transmit authority 
 at once to a foreign and a distant port ; but may, generally at 
 least, wait her arrival in her home port. He ought, however, in 
 prudence, if not in law, to forward notice of the sale and transfer 
 to him to the master of the ship, (which has been held equiva- 
 lent to taking possession,) and also to cause his name to appear 
 on the register of the United States as owner, as soon as prac- 
 ticable, that he may give the public whatever notice such a 
 record gives. 
 
 The distinction we make in the first principle is of much prac- 
 tical importance. If such a sale gives only an inchoate right, to be 
 completed by possession, then of two innocent transferrees which 
 ever can, by any means, get possession first, prevails over the 
 other. This we deny to be the law, and hold that the cases 
 which seem to lead to this conclusion are either erroneous, or 
 are to be justified only by their peculiar circumstances. Un- 
 doubtedly, priority of possession may lead to an inference of 
 laches in him who does not get possession ; but it by no means 
 proves it; and that is the only question. This will always be a 
 question of mixed law and fact, and may sometimes be a diffi- 
 cult one. We say, however, that a subsequent purchaser cannot 
 defeat the title of an earlier purchaser, by using means to get 
 possession which the first purchaser either could not use or was 
 not bound to use, and the non-user of which was not laches. 
 Even that court which has permitted a second purchaser to com- 
 plete his title by a first possession, and defeat a former purchaser 
 without laches, has held that an attaching creditor has not a sim- 
 ilar right. For if there be a sale in good faith, then an attach- 
 ment by a creditor of the seller, and after that, but without any 
 laches, possession is taken by the purchaser, the attachment is 
 defeated.^ 
 
 1 Both in Enrcland and in this country, such a transfer, whether absohite or by way 
 of mortj;a<rc, or in trust, is valid, j)rovided the vendee or mortga}i:oe talvc possession 
 of the slii]) witliin a reasonable time after her arrival in port. Sudi actual possession 
 being rc(|iiisitc, not to vest the projicrty in him, — for this is completed by the livery of 
 the bill of sale, or other muniments of title, Lord v. Ferguson, 9 N. H. 380 ; Brooks 
 V. Boudsey, 17 Pick. 441, — but to exclude the operation of the statutes of James I.
 
 80 ON THE LAW OF SHIPPING. [bOOK I. 
 
 The effect of an entry of a transfer in the custom-house record, 
 or of a registration of the purchaser, as owner, or of the want of 
 
 and Elizabeth, where they are recognized, and generally because a failure to take pos- 
 session is evidence of fraud. Ex parte Matthews, 2 Ves. Sen. 272 ; Atkinson v. Maling, 
 2 T. R. 462 ; Gordon v. East India Co. 7 T. R. 228, 234 ; Robinson v. Macdonnell, 5 
 M. & S. 228 ; rhil])ot v. Williams, 2 Eden, Ch. 231 ; Ex parte Batson, 3 Bro. Ch. 362 ; 
 Kirkley v. Hodgson, 1 B. & C. 588 ; Mair v. Glennie, 4 M. & S. 240 ; Hay v. Fair- 
 bairn, 2 B. & Aid. 193; Portland Bank v. Stubbs, 6 Mass. 422; Poitland Bank v. 
 Stacey, 4 Mass. 661 ; Putnam v. Dutch, 8 Mass. 287. In Lamb v. Durant, 12 Mass. 
 54, 56, Parker, C. J., held it to be well settled that such a conveyance hjdeed passes the 
 propei-ty. But the distinction, if any was meant, is not recognized in the other cases. 
 See Tucker v. Buffington, 15 Mass. 477 ; Badlam v. Tucker, 1 Pick. 389 ; Gardner v. 
 Rowland, 2 Pick. 599 ; Joy v. Sears, 9 Pick. 4 ; Pratt v. Parkman, 24 Pick. 42 ; 
 Turner v. Coolidge, 2 Met. 350 ; Winsor v. McLellan, 2 Story, 492 ; Brinley v. Spring, 
 7 Greenl. 241 ; Morgan's Ex'rs v. Biddle, 1 Yeates, 3 ; Wheeler v. Sumner, 4 Mason, 
 183; D'Wolf V. Harris, 4 Mason, 515 ; Conard v. Atlantic Ins. Co. 1 Pet. 386, 449. 
 But the purchaser takes possession subject to all valid claims before notice of transfer. 
 See cases supra, also Gillespy v. Coutts, Ambler, 652. It is true that in Portland 
 Bank v. Stubb, 6 Mass. 422, 425, Parsons, C. J., says : " The conveyance by Weeks 
 & Son to the plaintiffs being a mortgage, it is a pledge of a personal chattel. But to 
 such pledge a delivery of the chattel is essential to give the pawnee a special property 
 in it. And although a ship at sea may be mortgaged, yet the mortgagee must take 
 possession as soon as he may on her return, before the mortgage is complete." But by 
 this is meant only that it is not comi^lete in regard to a third person without notice. 
 The cases also of Lamb i'. Durant, 12 Mass. 54, and Lanfear v. Sumner, 17 Mass. 
 110, have been supposed to support the doctrine that as between two innocent pur- 
 chasers he who first acquires actual possession completes his title as against the other ; 
 and the latter case has been questioned on that ground. Ingraham v. W^heeler, 6 Conn. 
 277, 284 ; Rickerv. Cross, 5 N. H. 570, 573. See, also, 6 Law Reporter, 95. This is 
 owing, we think, to a misunderstanding of the principles on which those cases were 
 decided. It is well settled, that, as between the parties, the property in goods sold will 
 pass to the vendee, although the possession may remain in the vendor. But under the 
 statute of 13 Elizabeth, to render the transfer valid as to third parties without notice, 
 there must be a change of possession. 1 Parsons on Contracts, 441, 442; Twyne's 
 case, 1 Smith's Lead. Cas. 1. But, where actual delivery is impossible, constractive, 
 or, as it is sometimes called, symbolical delivery, is sufficient. The difficulty has 
 arisen from overlooking this fact. In both Ingraham r. Wheeler and Ricker v. Cross 
 there was a delivery of this nature. But in Lamb v. Durant and Lanfear v. Sumner 
 this was not the case. In the latter, the goods were supposed by their owners in Phila- 
 delphia to be at sea. They were actually landed in Boston. A written assignment 
 was made in Philadelphia and delivered, but no money was paid, no bill of lading 
 transferred, and there was no pretence whatever of any symbolical delivery. The 
 goods were subsequently attached by creditors of the vendors, and possession taken by 
 the sheriff, against wliom the action was brought. The court did not deny, that, if 
 there had been a legal^ as distinguished from an actual delivery to the first purchaser, 
 his title would have been protected. See also Gardner v. Howland, 2 Pick. 599, 602, 
 per Parker, C. J. In Lamb i.'. Durant, the vessel was owned by a firm. One partner 
 was abroad, and in actual possession of the vessel. It was held, that, under the cir-
 
 CH. ni.] COMMON" RULES RESPECTING THE SALE OF A SHIP. 81 
 
 such registration, presents questions connected somewhat with 
 that which we have just considered. The question is, in fact, 
 whether this custom-house record is intended to be, or is in law, 
 a pubhc record, having a similar effect upon title that the public 
 registry of deeds has on land titles. That is, is an entry of 
 transfer or title in that registry, public notice to all the world; 
 and can a subsequent transferree hold wherever there is no such 
 register, unless, — agreeably with the equitable construction of 
 the statutes of land registry, — a knowledge of the transfer can 
 be brought home to him, which shall have, so far as he is con- 
 cerned, the same effect as a public registry?^ This subject has 
 already been fully considered, and we refer to what we have said 
 upon it in a former section and notes.^ 
 
 cumstances of the case, a transfer by the home partner must be subject to all incum- 
 brances, made by the partner in possession before notice of transfer, and that accord- 
 ingly a sale with delivery of possession by the latter would intercept the title attempted 
 to be passed by a sale by the former. In such a case it might well be held that there 
 could be no constructive delivery by the home partner. See Hewitt v. Sturdevant, 4 
 B. Mon. 453. The purchaser must, however, take possession within a reasonable time 
 after the vessel arrives in port, and what is such a reasonable time is a question for the 
 jury to determine from all the circumstances of the case. Joy v. Scars, 9 Pick. 4. 
 Possession must be taken before the departure of the vessel on a new voyage, where 
 the transferree is aware of her arrival in port. Ex parte Matthews, 2 Ves. Sen. 272. In 
 Brinlcy v. Spring, 7 Greenl. 241, tlie court say that it may be deduced from the case 
 of Mair v. Glennie, that notice to the captain supersedes the necessity of taking pos- 
 session of the ship. So in Turner v. Coolidge, supra, the court strongly inclined to 
 the opinion, that the possession of one part-owner who acted for himself and also for 
 the other part-owner, who had purchased the rest of the vessel, superseded the neces- 
 sity of the vendee's taking formal possession, and vested the property in him. See, 
 also, Addis v. Baker, 1 Anstr. 222 ; Winsor v. MeLellan, 2 Story, 492. Where the 
 assignmerit is conditional, as in the case of a mortgage, an agreement that the mort- 
 gagor shall remain in possession until condition broken likewise relieves the mortgagee 
 from the obligation to take possession. Badlam v. Tucker, 1 Pick. 389 ; Conard v. 
 Atlantic Ins. Co. 1 Pet. 386, 449. As to tlic consequences of allowing the assignor 
 to remain in possession, where there is no such agreement in the bill of sale, and the 
 ship is not at sea, under 21 Jae. c. 19, § 11, see Monkhouse v. Hay, 2 Brod. & B. 
 114; llobinson v. McDonnell, 2 B. «& Aid. 134; Stephens v. Sole, cited in Kyall w. 
 Eowles, 1 Ves. Sen. 352 ; Hall v. Gurney, 24 Geo. 3, B. R., 1 Cooke's Bankrupt Laws, 
 342. It would seem in accordance witli the general principle governing such trans- 
 fers, that it is not essential to tiieir validity that the ship should be at sea at the time, 
 provided she is equally beyond the immediate control of her owner, and accordingly in 
 Ex parte Batson, 3 Bro. Ch. 362, and in Putnam v. Dutch, 8 Jlass. 287, the court 
 held a sale of a vessel in another port to be effective, provided the vendee was guilty 
 of no laches in taking possession on her arrival in the port where he resided. 
 1 See p. 40, note 2, and sect. 1, of this chapter.
 
 82 ON THE LAW OF SHIPPING. [bOOK I. 
 
 CHAPTER IV. 
 
 OF PART-OWNERS. 
 
 SECTION I. 
 
 HOW PARTNERSHIP IN VESSELS IS CREATED. 
 
 Two or more persons may own a ship by building it together, 
 or purchasing it together, or by even purchasing a part. How- 
 ever it be acquired, they are tenants in common and not joint- 
 tenants, unless by force of a special agreement between them. 
 Therefore if one dies, his share goes to his representatives, and 
 not to the surviving part-owners.^ If the register or instrument of 
 transfer, or written evidence of ownership, do not define the pro- 
 portions in which they hold the property, they will, in the ab- 
 sence of proof to the contrary, be presumed to have equal shares.^ 
 
 1 In a note in Abbott on Shipping, p. 97, first introduced by the author in the third 
 edition, it is supposed, that, if a ship were granted to a number of persons generally, 
 without distinguishing in any way the shares of each, they would become joint-tenants 
 at law, and that the rale jus accrescendi inter mercatores locum non hahct could be enforced 
 only in equity. For this doctrine no authority is cited, and we are confident that it is 
 not the law. That part-owners are tenants in common has been settled in numerous 
 cases. Graves v. Sawcer, T. Raym. 15; Ex parte Young, 2 Ves. & B. 242 ; s. c. 
 2 Rose, 78, n. ; Ex parte Harrison, 2 Rose, 76 ; Owston v. Ogle, 13 East, 538 ; Helme 
 V. Smith, 7 Ring. 709 ; The King v. Collector of the Customs, 2 M. & S. 223 ; Green 
 V. Briggs, 6 Hare, 395 ; NicoU v. Mumford, 4 Johns. Ch. 522 ; Mumford v. Nicoll, 20 
 Johns. 611 ; Lamb v. Durant, 12 Mass. 54; Merrill v. Bartlett, 6 Pick. 46; Thorn- 
 dike V. DeWolf, 6 Pick. 120; French v. Price, 24 Pick. 13 ; Harding v. Foxcroft, 6 
 Greenl. 76 ; Patterson v. Chalmers, 7 B. Mon. 595, 598 ; Milburn v. Guyther, 8 Gill, 
 92; Jackson v. Robinson, 3 Mason, 138; Macy v. DeWolf, 3 Woodb. & M. 193, 205 ; 
 Knox V. Campbell, 1 Penn. State, 366; Hopkins v. Forsyth, 14 Penn. State, 34, 38; 
 Buddington v. Stewart, 14 Conn. 404; Revens v. Lewis, 2 Paine, C. C. 202. 
 
 2 Glover V. Austin, 6 Pick. 209, 221, per Parker, C. J.; Ohl v. Eagle Ins. Co. 4 
 Mason, 172 ; Alexander v. Dowie, 1 H. & N. 152, 37 Eng. L. & Eq. 549, 551, per Pol- 
 lock, C. B. But the Act of 1850, c. 27, § 5, 9 U. S. Stats, at Large, 441, provides that 
 " the part or proportion of the vessel belonging to each owner, shall be inserted in the 
 register of enrolment."
 
 CH. IV.] HOW PARTNERSHIP IN VESSELS IS CREATED. 83 
 
 A ship, like any other chattel, may be held in partnership, and 
 constitute a part of the stock in the firm.^ And then all *the 
 powers, duties, and obligations of the owners towards each 
 other will be determined l)y the law of partnership. And if per- 
 sons who own a ship as part-owners, and not as partners, equip 
 and fit the ship out in all respects, and load her and send her 
 forth upon adventure, in the cost and profit and control of which 
 they are to share as partners would, there seems no reason for 
 denying that they hereby form a partnership, or, at least, a quasi 
 partnership for this voyage and adventure j^ and that the law of 
 partnership will apply to it so far as to give each of them a lien 
 on the property for his disbursements and advances, for and 
 upon this ship and voyage, and render them liable in the same 
 way as partners ; ^ although it might be doubted, perhaps, 
 whether, if the partnership be such a constructive one, it would 
 give to each part-owner the absolute power of disposing of the 
 whole property, in the same way in which a partner would have 
 that power.* 
 
 There is certainly no right of survivorship among part-owners 
 of a ship ; and it is said jus accrescendi, inter mercatores, pro 
 heneficio commercii locum non habet.^ 
 
 It has been held, (but is not now,) that all the part-owners of 
 a ship must be parties to a bill filed for an account of the profits 
 of a ship,^ however arising, or in whatever form existing ; 
 
 1 Doddington v. Hallet, 1 Ves. Sen. 497 ; "VVriglit r. Hunter, 1 East, 20; Mumford 
 V. Nicoll, 20 Johns. 611 ; Harding v. Foxcroft, 6 Greenl. 76; Phillips v. Purington, 15 
 Maine, 425 ; Scabrook i'. Kose, 2 Hill, Ch. 553 ; Patterson v. Chalmers, 7 B. Men. 
 595 ; Hewitt v. Sturdcvant, 4 B. Mon. 453. 
 
 '^ Doddington v. Hallet, 1 Ves. Sen. 497; Mumford r. Nicoll, 20 Johns. 611, re- 
 versing the decision of Chancellor Kent in tlie same case, 4 Johns. Ch. 522. See, also, 
 Macy V. DeWolf, 3 Woodb. & M. 193 ; Hewitt v. Sturdevant, 4 B. Mon. 453 ; Hinton 
 V. Law, 10 Mo. 701 ; Gardner v. Cleveland, 9 Pick. 334. See, however, Hopkins v. 
 Forsyth, 14 Penn. State, 34, 38. 
 
 8 Doddington i'. Hallet, 1 Yes. Sen. 497 ; Holderness v. Shackels, 8 B. & C. 612, 
 3 Man. & K. 25; Mumford v. NicoU, 20 Johns. 611, 625; Hewitt v. Sturdevant, 4 B. 
 Mon. 453, 466. 
 
 * Hewitt V. Sturdevant, 4 B. Mon. 453, 466. In this case it was held, that, where a 
 steamboat was built to carry freight and passengers, and not to I)e sold, altliough held 
 in partnership by her owners, one could not sell without the consent of the others. 
 
 & Sec ante, p. 82, note 1, and Bulkley v. Barber, 6 Exeh. 164, 1 Eng. L. & Eq. 506. 
 
 •^ Moffatt V. Farquharson, 2 Brown, Ch. 338. This, however, is not now the law; 
 but a bill may be brought by one part-owner on behalf of himself and the others.
 
 84 ON THE LAW OF SHIPPING. [EOOK I. 
 
 because the claims for freight or cargo follow the general law of 
 paftnership.^ 
 
 A copartner may transfer his interest in the copartnership 
 effects to any one ; but he cannot introduce any other person 
 into the firm as a partner, either by transfer to him, or in any 
 other way, without the consent of the other partners.^ But a 
 part-owner may transfer his share of a ship to any person, and 
 the transferree acquires at once all the rights and powers, as well 
 as all the interest which the transferrer possessed/^ But no part- 
 owner can sell any thing more than his own share in the ship, 
 unless authorized by some other part-owner to sell as his agent. 
 
 As part-ownership is the usual form of ownership of a ship, 
 and partnership is the exception, the former will be presumed 
 until the latter is proved.* 
 
 SECTION II. 
 
 OF THE POWERS OF A PART-OWNER. 
 
 The general rules of cotenancy of a chattel apply to this case. 
 Thus, if a part-owner sells the whole ship, or the share of 
 another part-owner, they whose shares he sells may, if they 
 please, confirm and ratify the sale ; and then it takes effect as 
 their sale;^ but without such confirmation it is wholly void. 
 And it seems to be now held, that an unauthorized sale by a 
 ])art-owner of the whole vessel, if carried into effect, is a con- 
 structive destruction of the property of the other owners, and 
 trover may be maintained by them against the seller, or against 
 the purchaser, if he also sells the property as his ovvn.*^ But 
 
 Lloyd V. Loaring, 6 Ves. 773, 779; Adair v. New River Co. 11 Ves. 429; Good v. 
 Blewitt, 13 Ves. 397 ; Cockburn v. Thompson, 16 Ves. 321 ; Pearce v. Piper, 17 Ves. 
 11, 15, 16. 
 
 1 Green v. Briggs, 6 Hare, 395. 
 
 2 Collyer on Partnership, 4 ; Story on Partnership, § 5 ; Ex parte Barrow, 2 Rose, 
 252, 255 ; Crawshay v. Maule, 1 Swanst. 495, and note (a), p. 509. 
 
 3 See Oviatt v. Sage, 7 Conn. 95. 
 
 * Patterson v. Chalmers, 7 B. Mon. 595. 
 
 5 Oviatt V. Sage, 7 Conn. 95 ; Putnam v. Wise, 1 Hill, 234. 
 
 6 Weld V. Oliver, 21 Pick. 559 ; White v. Osbom, 21 Wend. 72 ; Hyde v. Stone,
 
 en. IV.] POWERS OF A PART-OWXER. 85 
 
 trover does not lie against a part-owner of a ship, or, indeed, any 
 tenant in common, for merely dispossessing his co-owner ; ^ nor 
 can one part-owner maintain replevin against another ;2 nor, 
 perhaps, bring trespass for the sale of the whole.^ Neither can 
 a part-owner recover damages against another at law, for fraud- 
 
 9 Cow. 230; s. c. 7 Wend. 354; Wilson v. Reed, 3 Johns. 175 ; Thompson v. Cook, 
 2 Southard, 580; Farr v. Smith, 9 Wend. 338. See, also, on this point, Barton v. 
 Williams, 5 B. & Aid. 395; Farrar v. Beswick, 1 M. & W. 682, per Parke, B.; ]\[ay- 
 hew V. Herrick, 7 C. B. 229. 
 
 1 Fennings v. Ld. Grenville, 1 Taunt. 241; Selden v. Hickock, 2 Caines, 166; 
 Mersereau v. Norton, 15 Johns. 179 ; Hyde v. Stone, 9 Cow. 230; Hurd v. Darling, 
 14 Vt. 214. There appears to be some controversy as to what will authorize one 
 tenant in common to commence an action against a co-tenant. In the old case of 
 Graves v. Sawcer, T. Raym. 15, the court held that case would not lie at the suit of 
 one part-owner against another for fraudulently carrying the ship to foreign parts, and 
 there converting her to his own use, for " there cannot be any fraud between tenants ia 
 common, because the law supposes a trust and confidence between them." See the 
 same case, reported 1 Lev. 29, 1 Keble, 38. But in the subsequent case of Bar 
 nardiston v. Chapman, cited 4 East, 121, the plaintiff was tenant in common of one 
 moiety of a ship, and the defendants cotenants of the other moiety. The defendants 
 took the vessel by force from the possession of the plaintiff, and sent it to Antigua, 
 where it was lost. It was contended that trover would only lie in case of an actual 
 destruction, to which King, C. J., agreed, but left it to the jury whether, if it 
 was found that the ship was taken away by force and secreted and can-ied beyond the 
 reach of the plaintiff, an ensuing loss would not amount to a destruction. 
 
 The jury found that it would, and the Court unanimously agreed to the directions of 
 the chief justice, and refused to grant a new trial. And in Lowthorp v. Smith, 1 
 Hayw. (N. C.) 255, the court state the law as follows: "If one of two joint-owners 
 takes possession of the whole, no action will lie for this, for one hath as much right to 
 the possession as the other; but if, after taking possession, he destroys the property, he 
 is then liable, because the joint ownership docs not emi)owcr him to destroy the prop- 
 erty of the other; and if such joint-owner, after getting the sole possession, shall, 
 without the consent, or against the will of the other owner, send the vessel to sea, and 
 she be lost in that voyage, tlie iury may consider such loss as a destruction of the ves- 
 sel, occasioned by the joint-owner by means of sending her to sea, and find for the 
 plaintiff." And so, generally, if a tenant in common, though rightfully in possession, 
 yet by negligence causes the destruction of the property, an action will lie against him. 
 Chesley v. Thompson, 3 N. II. 9 ; Ilerrin /.-. Eaton, 13 Maine, 193; Maddox v. God- 
 dard, 15 Maine, 218; Anders v. Meredith, 4 Dev. & Bat. 199. But in Moody v. 
 Buck, 1 Sandf. 304, where one of two joint-owners of a vessel took u])on himself the 
 management,,direction, and control of the whole vessel, and by his carelessness, in- 
 attention, and negligent and im])ropcr conduct the vessel took fire and was consumed, 
 it was held that he was not liable to the other part-owner. See also, as to actions 
 between part-owners of a ship, generally, Milbum v. Guyther, 8 Gill, 92; Guillot v. 
 Dossat, 4 Mart. La. 203. 
 
 2 Barnes v. Bartlett, 15 Pick. 71. 
 
 * Furlong v. Bartlett, 21 Pick. 401. 
 VOL. I. 8
 
 86 ON THE LAW OF SHIPPING. [bOOK I. 
 
 ulently and deceitfully sending the ship on a foreign voyage, 
 whereby she was lost; ^ nor in equity for the loss of a ship sent 
 to sea against his consent.^ 
 
 It is said, that, at common law, the majority of the part- 
 owners may control and employ the ship at their pleasure, and 
 put on board or remove whatever officers or masters they choose.^ 
 We doubt, however, whether this majority could dispossess a 
 master who was himself a part-owner,* although such master, 
 if dispossessed, could have at law only his claim for damages, 
 and if he were removed for good cause, they would of course be 
 only nominal.'^ Questions of this sort do not often, in this coun- 
 try, come before our courts, either of common law or of equity; 
 as our admiralty courts claim and exercise a complete jurisdic- 
 tion over this whole subject-matter ; and we shall consider this 
 at some length in our chapter upon admiralty. 
 
 .It is said that a part-owner of a ship, if the other part-owners 
 are absent, and have not prohibited his action, has an implied 
 authority to represent them in the management of the vessel, 
 and that they will therefore be bound by his acts and contracts. 
 
 1 See ante, p. 85, note 1. 
 
 2 Anonymous, Skinner, 230 ; Strelly v. Winson, 1 Vern. 297. It is said in Horn 
 r. Gilpin, Amb. 255, that the reason for the decision in Strelly v. Winson is not stated 
 correctly in the reports, the real ground of the decision being that the part-owner did 
 not expressly dissent. 
 
 3 Card V. Hope, 2 B. & C. 661 ; Gould v. Stanton, 16 Conn. 12. 
 
 * In The New Draper, 4 Rob. Adm. 287, 290, an action was instituted by the ma- 
 jority of the part-owners against a part-owner who was the master, to dispossess him 
 of the command. Sir William Scott said : " The dispossession of a master is in its 
 nature not an uncommon proceeding ; all that the court requires, in cases where the 
 master is not an owner, is, that the majority of the proprietors should declare their 
 disinclination to continue him in possession. In the case of a master and part-owner, 
 something more is required before the court will proceed to dispossess a person who is 
 also a proprietor in the vessel, and whose possession, therefore, the common law is 
 upon general principles inclined to maintain. It is not, however, by any means un- 
 precedented for this court to proceed even to that extent ; but then some special reason 
 is commonly stated to induce the court to interpose." See also, Boulay Paty, Droit. 
 Comra. Tom. 1, tit. 3, § 5. In the case of a foreign ship, as a general thing, the 
 court will not interfere, on application of the other part-owners, to dispossess a captain 
 who is also an owner. The Johan and Siegmund, Edw. Adm. 242. The court, how- 
 ever, in a subsequent case exercised the power where a decree of the tribunal of the 
 country to which the vessel belonged, exercising admiralty jurisdiction, was produced, 
 directing the master to deliver up the vessel. The Sec Renter, 1 Dods. 22. 
 
 & Montgomery v. Wharton, 2 Pet. Adm. 397, Bee, 388, 1 Dall. 49. 
 
 i
 
 CH. IV.] POWERS OF A PART-OWNER. 87 
 
 Something of this is perhaps true of all cotenants of chattels ; 
 and it may possibly be carried further in the case of ships, from 
 the nature of the property ; but there must be a limit to this 
 rule, for certainly absent part-owners would not be bound by 
 any act of a part-owner, which was in itself or by force of cir- 
 cumstances so utterly and obviously unreasonable or prejudicial, 
 that no one could rationally believe that they had authorized the 
 act. Indeed, a consideration of the cases, and especially the 
 latest, would lead to some doubt, whether a part-owner of a ship, , 
 as such, that is, when not authorized by being master or ship's 
 husband or otherwise, has any more power to bind his copart- 
 owners, than the cStenant of any other chattel has.^ 
 
 1 It is said in Abbott on Shipping, 105, " With regard to the repairs of a ship and 
 other necessaries for the employment of it, one part-owner may, by ordering these 
 things on credit, i-ender his companions liable to be sued for the price of them, unless 
 their liability be expressly provided against." In support of this proposition several 
 cases are cited, but it will be found on examination that they are either cases of part- 
 nership, or those in which the repairs were ordered by a person who was also the ship's 
 husband or the master. The question, whether one part-owner is liable for repairs 
 ordered by another who is not the ship's husband, has seldom arisen, though there are 
 numerous dicta on the subject. In Ex parte Bland, 2 Rose, 91, 93, and in Stewart v. 
 Hall, 2 Dow, 29, the repairs were ordered by the master. In Beckham v. Knight, 
 5 Scott, 619, and in Patterson v. Chalmers, 7 B. Mon. 59.5, the j)arties were part- 
 ners, and not part-owners merely. In the following cases the repairs were ordered 
 by the ship's husband, and the other part-owners were held liable. Chapman v. Durant, 
 10 Mass. 47 ; Schemerhorn v. Loines, 7 Johns. 311 ; Muldon v. Whitlock, 1 Cow. 290; 
 Thompson v. Finden, 4 Car. & P. 158. In Carlisle v. The Steamer Eudora, 5 La. 
 Ann. 15, the action was brought by a pilot against the steamer and owners. The 
 plaintiff was cmplojTd by one owner, who represented the vessel, by a written contract. 
 There was parol evidence that at the time of entering into the contract the plaintiff 
 contemplated tlie liability of all. Both owners were held liable. See also liardy v. 
 Sproule, 29 Maine, 258. 
 
 This question has been receptlj' the subject of much discussion in England, in the 
 case of Brodie v. Howard, 17 C. B. 109, 33 Eng. L. & Eq. 146. The action was 
 brought for work done, and for goods bargained and sold. The vessel was owned by 
 two part-owners, one of whom appears to have been in possession, though not the ship's 
 husband, and the repairs were ordered by him. The action was brought against the 
 other owner, who, prior to the repairs being made, told his co-owner that he would not 
 repair, and on finding that tiie repairs were actually in progress, he gave the plaintiff 
 express notice that he would not be liable. It wa.s held, that the plaintiff could not re- 
 cover. It might seem that the fact of notice having been given to the plaintifl^' might be 
 an element in the case which influenced the decision, but it is evident that if the copart- 
 owner had authority to order the repairs, a subsequent countermand could not atfect 
 the vested rights of the jiarties, and indeed this point is not noticed by the court, who 
 put their opinion on the broad ground that one part-owner has no authority to bind his 
 co-owners. Mr. Justice Williams states the law as follows : " Part-owners of a ship
 
 88 ON THE LAW OF SHIPPIXG. [bOOK I. 
 
 It has been held, that, if a part-owner expressly dissents from 
 the employment of a ship on a certain voyage, and the ship is 
 lost, he is not liable, in equity, for his share of the loss ; but if 
 he objects, and nevertheless does not expressly dissent, he is so 
 liable.! If a part-owner arrests a ship and prevents a voyage, after 
 the other owners have expended money to repair and fit her 
 out, he has been held bound to pay his proportion of these 
 expenses. But the repairs in this case were of a permanent 
 » nature, and such as would be beneficial to the ship after the 
 voyage was ended.^ 
 
 are not in the situation of partners. To this extent they resemble partners, that they 
 are all liable, for repairs and such other necessary expenses for the ship which may be 
 presumed to have been incurred with their assent ; but they differ from partners in this 
 respect, that the authority of one part-owner to pledge the credit of the others does hot 
 exist, as in the case of partners, unless such authority has been determined only by 
 express dissent, communicated to third parties. There is no authority that any such' 
 law is applicable to part-owners." And Jervis, C. J., in the same case says : " The 
 only matter of difficulty which I have felt is the authority of Lord Tenterden," (cited 
 in the beginning of this note,) "from which it would seem that something must be 
 expressly done by a part-owner to limit his liability. I think, however, that means 
 this, — that, when a ship goes into dock, to be repaired, where the part-o^Tier has pre- 
 viously allowed his credit to be pledged, or has held himself out as liable, he must give 
 express notice in order to determine the authority ; but where there has been no such 
 credit, or holding out as liable, no such notice is necessary. The explanation of it is 
 this, that the authority once given continues, unless notice df the contrary has been 
 given." So in Revens v. Lewis, 2 Paine, C. C. 202, the court say : " Where one 
 of the part-ownei-s is the master or ship's husband, in the absence of all special agree- 
 ment on the subject he is presumed to have authority to do every thing necessary to be 
 done for the employment of the vessel, and has of course authority to make repairs, 
 and bind the vessel for the same ; but as this is only an implied or presumed authority, it 
 must, like all other implied powers, cease when it is revoked, or any thing is done to 
 rebut the presumption." But in King v. Lowry, 20 Barb. 532, where one part-owner 
 assumed the control of the vessel to the exclusion and against the will of the others, it 
 was held that all were liable for the supplies ordered by this one in the home port, 
 the party making the repairs not having knowledge of the differences which existed 
 between the part-owners. 
 
 1 See supra, p. 86, note 2. 
 
 2 Davis V. Johnston, 4 Sim. 539.
 
 CII. IV.] LIABILITY OF PART-OWNERS. 89 
 
 SECTION III. t 
 
 OF THE LIABILITY OF PART-OWNERS FOR REPAIRS OR SUPPLIES. 
 
 In general, all the part-owners are liable in solido for the 
 repairs of a ship, or for necessaries actually supplied.^ This 
 rests in part upon the general principle, that one receiving and 
 holding a benefit must pay for it; and in part upon the pecul- 
 iar nature of this property, and the necessity there is for the 
 public good, as well as for the advantage of each owner, that, 
 wherever the ship may be, all who are interested in her should 
 be regarded as authorizing such expenditure for repairs or sup- 
 plies as she may require.^ We shall see hereafter, that persons 
 making repairs or furnishing supplies have also a lien on the 
 ship. But they can neither have a lien on the ship, nor a per- 
 sonal claim against those of the part-owners who do not order 
 them, if the repairs or supplies are wholly and obviously un- 
 necessary, and therefore unreasonable.^ But the necessity in 
 this case may not be a strict one. If the things furnished are 
 in any reasonable conformity with the character of the ship, or 
 the nature and purposes of the voyage, or if, in fact, they are 
 such that any rational part-owner may be supposed to have 
 desired them, it will be difficult for the absent part-owners to 
 escape their liability.* 
 
 1 Westcrdell v. Dale, 7 T. R. 306 ; Chapman v. Durant, 10 Mass. 47 ; Schemcrhorn 
 V. Loines, 7 Johns. 311; Muldon v. Whitlock, 1 Cow. 290; Ilanly v. Spronle, 29 
 Maine, 258 ; Wri^^lU r. Hunter, 1 E.ist, 20 ; Baklney v. Ritchie, 1 Stark. 338 ; Thomp- 
 son I'. Finden, 4 Car. & P. 158 ; Macy v. Dc Wolf, 3 Woodh. & M. 193, 204 ; Galhuin 
 V. Tlie Pilot, 2" Wallace, C. C. 592. In Louisiana, it is held that part-owners arc not 
 liable in solido, except when they form a partnersliip. Carroll v. Waters, 9 Mart. La. 
 500; Kinihal v. Blanc, 20 Mart. (La.) 386; David v. Eloi, 4 La. 106, 108; Burke v. 
 Clarke, 11 La. 206. 
 
 2 See remarks of Parker, J., in James v. Bixhy, 11 Mass. 34, 36. 
 
 8 Molloy, B. 2, ch. 1, § 10; The Vibilia, 1 Wm. Rob. 1, 10; The Sophie, 1 Wm. 
 Rob. 368; Mackintosh v. Mitcheson, 4 Exch. 175 ; The Ship Fortitude, 3 Sumn. 228, 
 233; United Ins. Co. v. Scott, 1 Johns. 106, 111; Pratt v. Tunno, 2 Brcv. 449; 
 Wainwri<rht v. Crawford, 3 Ycates, 131, s. c.4 Dall. 225 ; Merwin v. Shailer, 16 Conn. 
 489 ; Philips r. Ledley, 1 Wa.sh. C. C. 226 ; Bcldoti v. Campbell, 6 Exch. 886, 6 
 Eng. L. & Eq. 473 ; Leddo v. Hughes, 15 111. 41. 
 
 * Webster v. Seckamp, 4 B. & Aid. 352, and cases supra. 
 
 8*
 
 90 ON THE LAW OF SHIPPING. [BOOK I. 
 
 It has been said, that a part-owner of a vessel is not liable to 
 another for repairs made at a home port without his consent. 
 If niade against his prohibition, he would not be liable; but we 
 should suppose his consent would generally be inferred, if the 
 repairs were reasonable and proper, and he made no objection. 
 A considerable distinction exists in respect to all the powers of 
 a part-owner, a master, or a ship's husband, between the exer- 
 cise of them abroad and in a home port. The reason is obvious. 
 A ship far from its home might perish for want of aid which was 
 delayed until all the owners could be consulted. But if at 
 home, all who will have to pay have an unquestionable right to 
 be consulted. It is not, however, quite certain whether the fact ,, 
 that the vessel is in a home port, which certainly limits these' 
 powers, goes so far as to destroy them. In other words, ; 
 the question, whether one part-owner can bind another in a , 
 home port without specific authority, ruay be regarded as still , 
 open.^ 
 
 If one who has a claim for repairs or supplies receives a part 
 of his claim from one or more of those liable in solido, thoi^e ' 
 who thus pay a part, even if it be their share, or more than their 
 share, are still liable for, the residue. And they are thus liable, 
 although the supplier expressly promised to discharge them in 
 consideration of their paying as they did ; for their payment', 
 alone would not be consideration enough in law to sustain the'' 
 promise, even if they paid more than their shares, because they 
 were legally bound to pay the whole.'^ But if they paid on 
 request, before they were bound to pay, or otherwise in any man- 
 ner beneficial to the promisor, and not obligatory on them, or if 
 they received a discharge under seal, the part-owners paying 
 would be no further liable.-^ It may, however, be doubted 
 whether, in admiralty, the presence of a seal upon the discharge 
 would make much if any difference. This we shall consider in 
 bur chapter on Admiralty practice. 
 
 1 Benson v. Thompson, 27 Maine, 470; Hardy v. Sproule, 31 Maine, 71. la 
 Mitfheson v. Oliver, 5 Ellis & B. 419, 32 Eng. L. & Eq. 219, 236, the question arose, 
 whether a master had authority iu a home port to make repairs. The point was 
 not decided. Parke, B., stated that the court considered it an open question. 
 
 2 Fitch V. Sutton, 5 East, 230 ; 2 Parsons on Contracts, 129 et seq. 
 
 3 Teed v. Baring, Abbott on Shipping, 116.
 
 Cir. IV.] LIABILITY OF PART-OWNERS. 91 
 
 If especial credit is given to one only of several part-owners, 
 the others are not liable ; but it must be clear that this was the 
 intention of the creditor ; that is, it must be certain that he not 
 only intended to charge one, but intended also that the other 
 part-owners should not be charged.^ If the creditor knew but 
 one, and for that reason charged him only, that we should not 
 deem a sufficient discharge of the rest.^ If the charge were 
 to " ship and owners," and were in any way authorized by those 
 who were owners, they are all held, whether known or unknown ; ^ 
 
 1 Ex parte Bland, 2 Rose, 91 ; Baklncy v. Ritdiie, 1 Stark. 338 : Stewart v. Hall, 
 •Dow. 29; Thompson v. Finden, 4 Car. & P. 158; Hu.ssey v. Allen, 6 Mass. 163; 
 James i'. Bixby, 11 Mass. 34; Muldon r. W^hitlock, 1 Cow. 290; Cox r. Keid, 1 Car. 
 & P. 602 ; Reed r. White, 5 Esp. 122. In Jennings v. Griffiths, Ryan & Moody, N. P. 
 42/flie eourt go so far as to say : The true question is, upon whose credit was the work 
 done. This will generally be determined by the legal ownership, but may be rebutted 
 by i)roof tiiat the defendant has i)arted with the benetieial ownership, and all manage- 
 ment of the vessel. Tliis doctrine is entirely overthrown in England. Numerous 
 recicnt decisions settle tin; law now to be, that where repairs ai-e ordered bj' one person, 
 'and anotlier is sought to be charged, the only question is, whether the party ordering 
 held out by the other as his agent, for if not he cannot be held. Thus Parke, B., 
 in Mitcheson v. Oliver, 5 Ellis & B. 419, 32 Eng. L. & Eq. 219, 232, says: "We 
 ■*hav ! often said the expression, ' Upon whose credit the work was done, or the goods 
 er! sn])plied,' is an incorrect expression, and likely to mislead the jury; the coirect 
 c of leaving the question to the jury is, ' who was the contracting party.' " See also 
 crs V. Willis, 17 C. B. 77, 33 Eng. L. & Eq. 204; affirmed, 18 C. B. 886, 36 
 hg. L. &. Eq. 350 ; Brodie v. Howard, 17 C. B. 109, 33 Eng. L. & Eq. 146 ; Mackcn- 
 . Pooley, 11 Exch. 638, 34 Eng L. & Eq. 486. 
 Thomson v. Davenport, 9 B. & C. 78. 
 3 Miln V. Sjjinola, 4 Hill (N. Y.) 177. But it is perfectly clear that the fact of 
 credit given, of which the charge "to the ship," or to "A. & B. owners of the ship 
 Hero," or whatever the words used may be, is evidence, cannot, unless ratified or 
 adojjtcd by the party or j)arties intended, enure to charge them, if they are not other- 
 wise liable. The only effect it can have is, on the one hand, to restrict th'e liability to 
 one or more of several parties who would otherwise be answerable, bv showin<>- the 
 intent of the creditor to look exclusively to those named, and of this it is at best but 
 prima facie evidence, and lial)le to be rebutted by proof tliat the repairs, etc. were 
 credited to those named, because the furnisher knew of no others; and, on the other 
 hand, where words sufficiently comprehensive are employed to embrace all those who 
 for any reason are legally chargeable, as, " To the ship and all concerned." This is 
 but evidence of an intent to presciTC tlie remedy of the party entire, which the law 
 will, generally at least, imply as well without it. In Jones v. Blum, 2 Rich. 475 
 sui>])lies had been furnished for tlie ship by the i)laintiff on a contract with one Stocker 
 wIkj was the owner, but had mortgaged her to the defendants by a surrender of the old 
 register, and taking out a new one in their names. He continued, however, in pos- 
 session of her, and sailed her for his exclusive benefit until she was taken possession of 
 by the defendants. The goods were charged in the plaintiff's books '' to the Bri"
 
 92 ON THE LAW OF SHIPPING. [bOOK I. 
 
 and if the service is rendered to the ship, the fact that it is 
 charged to one part-owner by name, might raise a presumption 
 of intention to sell or work on his personal credit alone ; but we 
 should say that this presumption was removed by showing that 
 no others were known, because this was, of itself, a sufficient 
 reason, and a more probable reason for charging only one of 
 many who are liable. For the same reason, if payment is made 
 by the negotiable paper of one, which paper is dishonored, the 
 others are liable.^ In Maine and Massachusetts, the rule that 
 
 Hayne, master and owners." The bill was presented to Stocker, and his note for the 
 amount taken. Upon these facts, the court were of opinion that the plaintiff had con- 
 tracted with, and given ci-edit originally and exclusively to, Stocker. That, conse- 
 quently, the defendants never were liable, and that the charge in the books could not 
 make them so. 
 
 In this connection, the case of Scottin v. Stanley, 1 Dall. 129, is worthy of atten- 
 tion. A vessel had been put upon the stocks, and a contract entered into with the 
 plaintiff for the painting by one Taylor, who subsequently interested the other defend- 
 ants, Stanley and Carson, in a share of the vessel, but continued to act as ship's hus- 
 band, receiving from them their share of the building and outfit. Subsequently he 
 failed, and the plaintiff brought his action against all three. He had made his charges 
 in his book " to Ship Hannah," and showed that on the 4th of April Stanly & Carson 
 had engaged a captain for the ship. All the items of the account, but one, were dated 
 subsequently to this act of ownership. Taylor oficred to confess judgment ; on the 
 part of the other defendants it was contended, that reference should be had to the time 
 of the contract made, which being when Taylor was sole owner, the plaintiff could 
 resort to him alone; that no purchase made, or interest acquired afterwards, could 
 make Stanley and Carson liable for a contract made with Taylor only, and on Taylor's 
 sole credit, and tiiat this case was particularly strong, it being proved that they had 
 paid their proportions already to the ship's husl)and, Taylor. But Shippen, president, 
 instructed the jury, that, as the work was performed after they had become owners, 
 and appeared avowedly so, it was certainly done on their credit, and not only the 
 ship's husband, but all the real owners at the time of the work done, were liable." 
 
 It is difficult to gather the precise ground on which this case stands, from the report. 
 If, as might be inferred from the language of tiie court, the plaintiff recovered, not 
 upon the original undertaking, but upon an implied assumpsit for work and labor done 
 and materials furnished, for no new undertaking or ratification of the original contract 
 by Stanley and Carson appears, they might be liable in respect of the benefit received ; 
 the question of credit given becomes then unimportant, being a mere inference of law. 
 On the other hand, if they were charged as principals for the act of Taylor, as their 
 agent, some other ratification than the mere acquisition of the ownership of the vessel 
 seems requisite to the adoption of his previous contracts by them. It is possible that 
 the plaintiff did not originally contract upon th§ mere personal credit of Taylor, of 
 which the charge " to the Ship Hannah," if not an after-thought, might raise a pre- 
 sumption ; but this would not, that we perceive, strengthen his claim as against the 
 actual defendants. The probability is, that there existed circumstances in the' case not 
 reported. See also, upon this point, Henderson i\ Mayhew, 2 Gill, 393. 
 
 1 Higgins I'. Packard, 2 Hall, 547; Muldou v. Whitlock, 1 Cow. 290; Schemer-
 
 CH. IV.] LIABILITY OP PART-OWNERS. 93 
 
 presumes negotiable paper to be intended as absolute payment, 
 unless the contrary be shown, might be applied in the common 
 law courts ; 1 but we think it would not in the admiralty courts 
 sitting in those districts.^ 
 
 Insurers who accept an abandonment of a ship become 
 thereby owners, and are liable as such ;^ but not in soiido ; for if 
 there be many insurers, each is liable only for his proportion, un- 
 less he promises to pay more. The reason of the exception is, 
 that the ownership is in this case cast upon them by misfortune 
 and necessity, and, if not against their will, at least is not as- 
 sumed by their free choice and voluntary action.^ 
 
 horn V. Loines, 7 Johns. 311 ; King v. Lowry, 20 Barb. 532; Patterson v. Chalmers, 
 7 B. Mon. 595. See also, Cheever v. Smith, 15 Johns. 276; Wyatt v. The Mar- 
 quis of Hertford, 3 East, 147. 
 
 1 Chapman v. Dnrant, 10 Mass. 47 ; French v. Price, 24 Pick. 13, 20 ; Wilkins v. 
 Keed, 6 GreenL 220; Descadillas v. Harris, 8 Greenl. 298; Newall v. Hussey, 18 
 Maine, 249. See also, Thachcr v. Dinsmore, 5 Mass. 299 ; Maneely v. M'Gee, 6 
 Mass. 143 ; Goodenow v. Tyler, 7 Mass. 36 ; Whitcomb v. Williams, 4 Pick. 228 ; 
 Keed v. Upton, 10 Pick. 522; Watkins v. Hill, 8 Pick. 522; Wood v. Bodwell, 12 
 Pick. 268; Ilsley v. Jewett, 2 Met. 168 ; Butts v. Dean, 2 Met. 76; Curtis v. Hubbard, 
 9 Met. 322, 328; Thurston v. Bhuichard, 22 Pick. 18; Melledge v. Boston Iron Co. 
 5 Cush. 158 ; Varncr v. Nobleborough, 2 Greenl. 121 ; Bangor v. Warren, 34 Maine, 
 324 ; Fowler v. Ludwig, 34 Maine, 455 ; Shuinvvay ;;. Reed, 34 Maine, 560 ; Gilmore 
 V. Busscy, 3 Fairf. 418 ; Conistock v. Smith, 23 Maine, 202. See also tlie learned 
 opinion of Mr. Justice Spni</ne, sitting as referee, in the case of Page v. Hul)l)ard, 19 
 Law lleporter, 607. But this rule never applies to notes not negotiable. Trustees, &c. 
 V. Kendrick, 3 Fairf. 381 ; Edmond v. Caldwell, 15 Maine, 340. In the case of The 
 Barge Resort v. Brooke, 10 Mo. 531, it was held, that it was competent evidence, in a 
 suit against a boat, on a note given by a former owner for services, to show that the 
 note was given and accepted as the individual note of such former owner, and for this 
 purpose the maker of the note was a competent witness. See also. Reed v. White, 
 5 Esp. 122. 
 
 ^ See Wallace v. Agry, 4 Mason, 336 ; The Barque Chusan, 2 Story, 455 ; The Brig 
 Nestor, 1 Sumner, 73, 87 ; Leland v. The Medora, 2 Woodb. &. M. 92 ; Macy v. De 
 Wolf, 3 Woodb. & M. 193 ; The Eastern Star, Ware, 185. 
 
 ^ United Ins. Co. v. Robinson, 2 Caincs, 280; United Ins. Co. v. Scott, 1 Johns. 
 106 ; Reade v. Com. Ins. Co. 3 Johns. 352 ; Lee v. Boardman, 3 Mass. 238, 247 ; 
 Emerig. on Ins. ch. 17, s. 6, ^ 1, (Meredith, Ed. p. 684) ; Pothier, Contrat d' Assurance, 
 n. 138. 
 
 * United Ins. Co. v. Scott, 1 Johns. 106, 110. Mr. Justice Thompson, in this case, 
 states the law with great accuracy. He says : "It cannot be controverted, that the un- 
 derwriters upon the shij), after tiie abandonment and acceptance, liecame owners there- 
 of, and answerable for all necessary repairs and expenses. The acceptance must, I 
 think, have a retroactive effect, and the underwriters be deemed owners from the time 
 the accident liappened. They cannot, however, be considered joint-owners, so as to 
 constitute them partners, or so as to make them responsible, one fur the other. It ccr-
 
 94 ON THE LAW OF SHIPPING. , [bOOK I. 
 
 SECTION IV. 
 
 OF THE LIABILITY OF PART-OWNERS FOR THE TORTS OF THOSE WHOM 
 
 THEY EMPLOY. 
 
 The liability of part-owners of a ship for the torts of those 
 whom they employ, or of each other, is governed by the princi- 
 ples of the law of agency. There may be something in the 
 peculiar nature of this property, or in the powers and duties of 
 those who are placed in charge of it, which, in particular cases, 
 will, to some extent, qualify this law. But we are not aware 
 that any questions of this kind have arisen, which this law of 
 agency, rationally considered, has not sufficed to answer. The 
 persons employed about the ship are the agents or servants of 
 all the owners, and each owner is, to a certain extent, the agent 
 and servant of the rest. Now every principal or master is liable 
 for the torts of his servant or agent, if they were committed in 
 the execution of the service or agency ; or, in other words, if 
 committed by the servant or agent by express order of the mas- 
 ter, or in the discharge of the general duties belonging to such 
 agent or servant; but not if they are the torts of one who 
 is their agent or servant, but who, in this wrong doing, did 
 not act as such agent or servant.^ If a master or part-owner, 
 while employed about a vessel, by a gross and faulty negligence 
 set fire to one adjoining, or force her upon a rock or shore, or 
 cause a collision, all the owners are answerable in solido ; but 
 
 tainly will not be pretended, that because they subscribed the same policy, they thereby 
 became joint partners ; they are total strangers to each other ; and if being on the 
 same policy would not constitute them partners, I cannot see why accepting the aban- 
 donment should make them such. If the loss happens by any of the perils insured 
 against, the underwriters are bound to pay their subscription, whether they accept the 
 abandonment or not ; and if the acceptance constitutes them partners, they are driven 
 to the alternative of relinquishing the subject insured, or of becoming partners, and, of 
 course, responsible for wliomsoever may be on the same policy. A doctrine leading to 
 such consequences never can be tolerated." 
 
 1 Bowcher v. Noidstrora, 1 Taunt. 568 ; M'Manus v. Crickett, 1 East, 106; Lyons 
 V. Martin, 8 A. & E. 512; Middleton v. Fowler, 1 Salk. 282; Jones v. Hart, 2 Salk. 
 441; Anonymous, 1 Ld. Raym. 739; Hazard v. Israel, 1 Binn. 240; Quarmaa v. 
 Burnett, 6 M. & W. 499. See also, cases infra.
 
 CH. IV.] LIABILITY OF PART-OWNERS TO EACH OTHER. 95 
 
 not if the same act were done by the same persons intentionally, 
 and without any connection with the ship or any service ren- 
 dered on board of her. 
 
 To illustrate this rule, if we suppose that a part-owner who 
 is in charge of a ship, and clearing out a stove in a ship in the 
 night time for the benefit of the ship, throws living embers out 
 of his own ship in such a way that they fall on board of an ad- 
 joining vessel, which is thereby burned, all the owners of the ship 
 might, on general principles, be liable for this in solido. But if 
 he took these embers ftom the stove for the purpose of setting 
 fire to the other vessel, and executed this purpose, this would be 
 his own felonious act, for which he alone would be responsible.^ 
 
 SECTION V. 
 
 or THE LIABILITY OF PART-OWNERS TO EACH OTHER. 
 
 Part-owners are not, at common law, liable to each other for 
 injury or loss to their common property by negligence. The 
 reason given is, that each cotenant may protect himself, and 
 need not leave the property in the uncontrolled possession of the 
 other, unless he choose to do so ; and if he does so choose, he 
 must take the consequences. He has, therefore, no right of ac- 
 tion if his cotenant or part-owner loses or injures the property 
 by his gross negligence ; although he would have it, if the coten- 
 ant had wilfully destroyed the property .^ But this rule is rather 
 technical than just, and we doubt whether it would be applied 
 in admiralty ; especially as the civil law, which is the common 
 law of these courts, makes no such distinction.^ 
 
 Where part-owners agree to fit out a vessel and load her for a 
 voyage at their common expense and for their common profit, 
 and one of them fails to advance his share, and then becomes 
 bankrupt before the adventure is closed, the part-owners do not 
 
 1 See post, ch. U, § 3. 
 
 2 See ante, p. 85, note 1. 
 
 3 Domat's Civil Law, by Strahan, § 1489, Cushiiig's cd. vol. 1, p. 584.
 
 96 . ON THE LAW OF SHIPPING. [uOOK I. 
 
 pay over to his assignees all his profit, and take their dividend 
 on the deficit of his advances; but they have a kind of lien on 
 the adventure, for they may first deduct from his share of the 
 profit whatever stands charged to him on account of the ex- 
 penses and disbursements, and then pay over only the balance to 
 the assignees. 
 
 This right of deduction is said to be confined to that very ad- 
 venture, and not to extend to any former or general balance or 
 indebtedness. But this question has been much discussed, and 
 the authorities are quite conflicting. Probably in each case the 
 decision would be much affected by the circumstances, as they 
 showed a general partnership, or quasi partnership, or a partner- 
 ship limited with all its rights and liabilities to that special ad- 
 venture. Indeed, beside limiting the lien of part-owners of ship, 
 as above stated, we should perhaps be justified by the best au- 
 thorities in saying that part-owners have no lien as such ; that is, 
 none, excepting so far as they are in fact partners.^ 
 
 1 We have seen that part-owners of a ship may hold the same in partnership, but 
 that such is not their necessary nor even their prima facie relation to each other. The 
 only point really decided in the much discussed case of Doddington v. Hallet, 1 Ves. 
 Sen. 497, Belt's Sup. to Ves. 205, 2 Rose. 78 (n), whether rightfully or wrongfully de- 
 cided, was, that the connection in that instance was one of partnership. That being 
 decided, the existence of the lien resulted from it as a necessary consequence, according 
 to the principles common to all copartnerships. See the remarks of Spencer, C. J., 
 on this case in Mumford v. Nicoll, 20 Johns. 611, 633. All that later English cases 
 have done seems to have been to contest the application of those principles to that par- 
 ticular case, and we ap'prehend that it was not intended to, and docs not authorize the 
 doctrine that part-owners of a vessel, as such, have any lien on the sliip whatever. The 
 contrary seems to be settled by the cases, both in England and America. Ex parte 
 Young, 2 Ves. & B. 242 ; Ex parte Harrison, 2 Rose, 7G ; 2 Bell's Comm. Sect. 1221, 
 § 4; Nicoll r. Mumford, 4 Johns. Ch. 522 ; Braden v. Gardner, 4 Pick. 456; Merrill 
 V. Bartlett, 6 Pick. 46 ; Thorndike v. De Wolf, 6 Pick. 120 ; Patton v. The Sch. Ran- 
 dolph, Gilpin, 457. In all the cases where the existence of the lien was recognized, the 
 court were of opinion that there existed upon the facts a partnership between tlie par- 
 ties for the purposes of the action. See Smith v. De Silva, Cowp. 469 ; Holderness 
 V. Shackels, 8 B. & C. 612; Mumford v. Nicoll, 20 Johns. 611; Hewitt v. Sturde- 
 vant, 4 B. Mon. 458 ; and although in Mumford v. Nicoll the judges go out of their 
 way to expi'css an opinion favorable to the existence of such a lien ; they expressly 
 state that their decision is liascd upon the existence of a partnership in the case 
 before them ; hence that opinion is merely obiter. See also, Seabrook v. Rose, 2 Hill's 
 Ch. 553. Where the part-owners of a ship are engaged in a joint enterprise, this 
 does not necessarily create a partnership in the ship which is an instrument of that en- 
 terprise. 
 • Thus in Holderness v. Shackels, it is expressly stated by Ld. Tenteixlen, C. J., that the
 
 cii. IV.] ship's husband. 97 
 
 SECTION VI. 
 
 OF THE SIUP'S HUSBAND. 
 
 The ship's husband is usually, but not necessarily, a part- 
 owner. He is the general agent of the owners in respect to the 
 ship, and may be appointed, like other agents, by a written in- 
 strument or orally. Or his appointment may be inferred from 
 his exercising the duties of his office with the knowledge and 
 
 claim of lien is not on the ship, but on the proceeds of their common adventure, — in 
 that case, a quantity of oil, with regard to which he considered the defendants as stand- 
 ing in the relation of copartners to each other. 
 
 In INIumford i'. Nicoll, the partnership was held to extend not only to the fruits of 
 the voyage, but to the ship itself, on the ground that such was the agreement of the 
 parties. " It is true," says Woodworlh, J., " the appellant and Stillwell were tenants in 
 common, and part-owners of the ship ; and if no further connection appeared, the 
 question would be very different from the one which arises in this case. It is admitted 
 that here tlie parties were partners in the cargo and voyage ; is it not equally clear 
 they were so in the vessel ? It is not the case of a vessel being chartered or earning freight 
 eo nomine, but the vessel is to be sold, as vxll as the cargo; the avails of both are to be 
 invested in such a manner as the master may consider most advantageous. This has 
 been carried into effect After all this, to say that in respect to the ship the ap- 
 pellant and Stillwell stand as tenants in common and part-owners merely, and that the 
 ship formed no part of the partnership property, is to my mind a proposition not 
 founded in fact." 
 
 And further on he adds : " I consider these parties as commencing tlie business of a 
 limited partnership in vessels, cargoes, and trading voyages. After having sent out one 
 vessel and cargo, they proceed to a second, and then to a third. To say that each ves- 
 sel and cargo is to be considered as being the subject of a distinct and separate partner- 
 ship, rather than parts and j)areel of the same transactions, does not appear to me 
 warranted by the evidence." But in this last ojjinion the majority of tbe court did not 
 concur. 
 
 Spencei; C. J., in delivering their opinion, is, however, equally explicit. "I must 
 not be supposed to overrule," he says, " the distinction between partners in gooils and 
 merchandise and part-owners of a ship. The former are joint-tenants, and the latter 
 are, generally speaking, tenants in common; and one cannot sell the share of the 
 other. But I mean to say, that part-owners of a ship may, under the facts and cir- 
 cumstances of this case, become partners as regards the proceeds of the ship ; and if 
 they are to be so regarded, the right of one to retain the proceeds, until he is paid 
 what he has advanced beyond his projjortion, is unquestional)le." 
 
 In the case of The Larch, 2 Curtis, C. C. i'27, it was held that a part-owner, 
 though ship's husband, has not a lien on the share of his tenant in counnun for ad- 
 vances and disbursements. See also, Sterling v. Hanson, I Cul. 478. 
 VOL. I. 9
 
 98 ON THE LAW OF SHIPPING. [BOOK I. 
 
 consent of the owners. These duties are deternnined by usage.^ 
 They are, in general, to provide for the complete sea-worthiness 
 of the ship; to take care of her in port; to see that she has on 
 board all necessary and proper papers ; to make contracts for 
 freight, and collect the freight and all -returns.^ He cannot bor- 
 row money ; ^ nor give up the lien for freight ; * nor insure, nor 
 purchase a cargo for the owners,^ without especial authority;^ 
 
 1 1 Bell, Comm. p. 410, 4th ed. 
 
 2 These duties are thus enumerated by Mr. Bell, 1 Comm. 410, § 428 (4th ed.) ; 
 id. p. 504 (5th ed.). 1. To see to the proper outfit of the vessel, in the repairs ade- 
 quate to the voyage, and in the tackle and furniture necessary for a sea-worthy ship. 
 2. To have a proper master, mate, and crew for the ship, so that in this respect it shall 
 be sea-worthy. 3. To see to the due funiishinj^ of provisions and stores, according to 
 the necessities of the voyage. 4. To see to the regularity of all the clearances from 
 the custom-house, and the regularity of the registry. 5. To settle the contracts, and 
 provide for the payment of the furnishings which are requisite in the performance of 
 those duties. 6. To enter into proper charter-parties, or engage the vessel for general 
 freight, under the usual conditions ; and to settle for freight and adjust averages with 
 the merchant. 7. To preserve the proper certificates, surveys, and documents, in case 
 of future disputes with insurers or freighters, and to keep regular books of the ship. 
 
 See also, on this subject, Simg v. Brittain, 4 B. & Ad. 375 ; Owston v. Ogle, 13 
 East, 538 ; Benson v. Heathorn, 1 Young. & C. 326 ; Turner v. Burrows, 8 Wend. 144, 
 151 ; Gould V. Stanton, 16 Conn. 12, 23. In Benson v. Heathorn, supra, it was held by 
 the court of chancery that for one of several managing directors of a joint-stock com- 
 pany for the acquisition and employment of vessels to take on himself the office bf 
 ship's husband was prima facie a breach of trust ; as his interest in the one capacity 
 was in conflict with the duty he owed the company in the other, and that he could not 
 in consequence be allowed to make the usual charges against them for his services as 
 ship's husband. But in Smith v. Lay, 3 Kay & Johns. 105, it was held that the owner 
 of a majority of shares in a shij) might constitute himself managing owner, and, in 
 that capacity, act as broker to the ship in collecting and distributing freight, there being 
 nothing incompatible between such services and his fiduciary character as managing 
 owner. But the court, before allowing him a commission for these seiwices, directed 
 an inquiry whether, according to the custom of ship-owners or otherwise, he, being 
 managing owner, was entitled to any, and if so, what commission. 
 
 Where there was an agreement between part-owners that one of them should have 
 the exclusive management of the vessel as ship's husband, and that, after her return, a 
 full account should be made out of the ship and her concerns, and the net profits, after 
 all charges had been deducted, should be divided amongst the owners ; it was held that 
 this duty devolved upon the ship's husband, and that for not so accounting and divid- 
 ing the profits an action lay against him by each of the part-owners. Owston v. Ogle, 
 supra. So the agreement between the managing and other part-owners will be en- 
 forced in chancery. Darby r. Baines, 9 Hare, 369, 12 Eng. L. & Eq. 238. 
 
 3 1 Bell, Comm. 411, (4th ed.). 
 * 1 Bell, Comm. 411, (4th ed.). 
 
 6 Hewett V. Buck, 17 Maine, 147. 
 
 6 Ogle V. Wrangham, coram Kenyan, C. J., Guildhall Sitting, H. T. 1790, Abbott
 
 CH. IV.] ship's husband. 99 
 
 but if he makes such insurance, the parties for whose benefit 
 this insurance is made may ratify this insurance for their own 
 benefit; and it is said that they may do this even after a loss,^ 
 A ship's husband cannot delegate his authority ;2 and it is said 
 that he cannot commence and prosecute an action at law, and 
 bind the owners to the expenses,^ but this we doubt. 
 
 If a part-owner, who is also ship's husband, advances the 
 share in the outfit of another part-owner, he may sue that part- 
 owner ; but has no lien on the ship therefor.^ 
 
 The ship's husband, (called, in our statutes of registration, 
 the managing owner,) being the general agent of the other 
 owners, binds his principals, while acting within his authority; 
 but a creditor may waive their liability, and trust to him alone ; 
 and he will be estopped from denying this, and setting up a 
 claim against the other owners, if he lias dealt with the agent 
 in such a way as to justify the principals in believing that he 
 dealt with the agent on his personal credit only, and therefore 
 has permitted them to settle their accounts with their agent in 
 
 on Sliipp. 107 ; French v. Backhouse, 5 Bun\ 2727 ; Bell v. Ilumphries, 2 Stark. 345 ; 
 Turner v. Buitows, 5 Wend. 541 ; s. c. 8 Wend. 144; Patterson v. Chalmers, 7 B. 
 Mon. 595; Foster v. U. S. Ins. Co. 11 Pick. 85; Robinson v. Gleadow, 2 Bing. 
 N. C. 156. And therefore, where he has insured in the name of, and for the benefit of 
 the part-owners, he cannot recover from them the amount of the premium he lias paid. 
 Cases snpra. 
 
 1 Hagcdorn v. Olivcrson, 2 M. & S. 485 ; Routh v. Thompson, 13 East, 274. And 
 see post, chapter on insurance. But one partner of a firm which owns a vessel may 
 effect insurance for all. Hooper v. Lushy, 4 Camp. 66. 
 
 ^ Mr. Bell, in treating of the limitations of tlie powers of a shi])'s husband, says : 
 " 1. That, without special powers, he cannot borrow money generally for the use of the 
 ship ; though he may settle the accounts of the creditors for furnishings, or grant bills 
 for them, which will form debts against the concern, wiicther he has funds in liis hands 
 or not, with whicl^ he might have paid them. 2. That, although he may, in the 
 general case, levy the freight, which is, by the bill of lading, payable on the delivery 
 of the goods, it would seem that he will not have power to take bills for the freight 
 and give up the possession and lien over the cargo, unless it has been so settled by 
 charter-party, or unless he has s|)ccial authority to give such indulgence. 3. That, 
 under general authority as ship's husband, he lias no power to insure, or to i)ind the 
 owners for premiums; this requiring a special authority. 4. That, as the power of the 
 master to enter into contracts of aHreiglitmcnt is supei-seded in the port of the owners, 
 80 is it by the presence of the shiji's husband, or the knowledge of the contracting 
 parties, that a ship's husband has been apimintcd." 1 Bell, Comm. 411, § 429 (4th 
 ed.) ; 1 Bell, Comm. 504, .505, (5th ed.). 
 
 8 Campbell v. Stein, 6 Dow, 116, 135. 
 
 * Helme v. Smith, 7 Bing. 709.
 
 100 ox THE LAAV OF SHIPPINO. [UOOK I. 
 
 such a way as to be damnified, if made responsible to the 
 creditor.^ 
 
 If a ship's husband be not a part-owner, then he is the com- 
 mon agent of all the owners, and all the owners are responsible 
 to him ill solido for his just charges, on the general principles of 
 agency. If he be a part-owner, each is liable for his share,^ and 
 we should say, that, if one or more became bankrupt, each of the 
 solvent owners would be held, in equity and in admiralty, to 
 make good his share of the insolvent's deficit, the ship's hus- 
 band himself sustaining his own share of the loss by the bank- 
 ruptcy and no more ; agreeably to the rule of equity in cases of 
 contribution. 
 
 As to the lien of the ship's husband, it may not be quite cer- 
 tain. If a partner, then he has the lien of a partner; if not, he 
 may have a lien on the proceeds of a voyage, or of the ship itself 
 if sold, or on her documents, provided any of these have come 
 into his actual possession. And this lien covers all his actual 
 expenses and disbursements for the ship, and his indemnity for 
 any obligation incurred for the ship. But it is doubtful whether 
 the mere office of ship's husband gives him any lien.^ 
 
 1 Tliompson v. Finden, 4 Car. & P. 158 ; Muldon v. Wliitlock, 1 Cow. 290 ; Reed v. 
 White, 5 Esp. 122. See also, Wyatt v. Marquis of Hertford, 3 East, 147 ; Cheever v. 
 Smith, 1.5 Johns. 276. 
 
 ■^ Holme V. Smith, 7 Bing. 709. See also, Brown v. Tapscott, 6 M. & W. 119. 
 
 ^ It would, indeed, seem that the ship's husband as such cannot have any lien on the 
 vessel, or the proceeds thereof. The Larch, 2 Curtis, C. C. 427 ; Ex parte Young, 
 2 Ves. & B. 242 ; Smith v. De Silva, Cowp. 469. In this last case, the outfit of 
 a vessel had been conducted by De Silva, who was appointed to manage the concern as 
 ship's husband in pursuance of an agreement made by three others at the time of their 
 becoming owners of the ship ; and De Silva settled the accounts with them, and took 
 from one of them, who afterwards became banki'upt, promissory notes payable at a 
 future day for a part of his share of the expense. Lord Mansfield held, that the 
 assignees of the bankrupt were entitled to i-eceive his full share of the profits. The 
 ship's husband, subsequently to this transaction, had acquired an interest in the ship 
 by purchasing a part of the share of one of the other part-owners. (The time when 
 he acquired that interest does not distinctly appear in the report of the case ; but Lord 
 Tentcrden, in his remarks on this case in Holderness v. Shackels, states it to have 
 been subsequently to the taking of the note.) It was held that he was entitled only 
 to a dividend under the commission for the amount of the notes. In this case, no dis- 
 tinction was made between the bankrupt's share in the ship, which was sold in the 
 course of the voyage, and his share in the profits of the adventure ; but it seems now 
 settled that on the latter the ship's husband has a lieu for the expenses incurred in 
 the outfit, &c. Holderness v. Shackels, 8 B. & C. 612; Gould r. Stanton, 16 Conn. 
 12, 23 ; Macy r. De Wolf, 3 Woodb. & M. 193, 210. And there seems to be no valid
 
 CII. IV.] LIENS OF PART-OWNERS, ETC. 101 
 
 It is undoubtedly the duty of a ship's husband to obtain from 
 each part-owner his share or contribution towards the payment 
 of any general charge that he has made. And if he himself 
 advances the share or contribution of any part-owner, he may 
 sue him for it.^ 
 
 SECTION VIL 
 
 OF THE LIEXS OF PART-OWNERS, AND OF ACTIONS BY AND AGAINST 
 
 THEM. 
 
 There is much reason, and some authority, for giving to part- 
 owners a general lien on their common property for all their 
 just and reasonable charges or balances of accounts against 
 each other in relation to their common property. Indeed, there 
 might seem to be some reason for extending such a rule to all 
 cases of cotenancy of chattels. But there is no authority what- 
 ever for it in respect to common chattels ; and in regard to co- 
 tenancy in a ship, we have no doubt that the prevailing author- 
 ity of the courts, as well as the general usage of merchants, 
 gives no such lien. In other words, part-ownership is one thing, 
 and partnership another, whether in relation to ships or other 
 property. These two modes of ownership may be perfectly 
 separate and distinct; and when they are so in fact, and by the 
 intention and understanding of the parties, both the common 
 law and the law merchant keep them so. They may run to- 
 gether, absolutely, as when a ship is held as a part of the stock 
 of a copartnership, or partially, or specially, as in the case of the 
 joint adventures or quasi partnerships which we have already 
 considered. And in these latter cases, the rules of the law of 
 partnership, at least in courts of equity or admiralty, would be 
 applied, so far as the merits and substantial justice of each case 
 required their application. It has been adjudged, that, where two 
 
 reason why this lien should not extend to the proceeds of the ship whore her sale <lur- 
 ing, or lit tiie end of the voyage, is contemplated and cfiected as a part of tlic adven- 
 ture. 
 1 See cases ante, p. 100, n. 2. 
 
 9*
 
 102 ON THE LAW OF SHIPPING. [BOOK I. 
 
 persons build a ship together, to be owned by them in certain 
 proportions, and one of them advances more than his proportion, 
 he has no lien on the ship for the balance due to him.^ And 
 elsewhere it has been expressly denied that a part-owner has a 
 lien on the shares of other owners for his advances on account 
 of a voyage.^ The cases are in irreconcilable conflict on this sub- 
 ject. Most of them are complicated with the question, how 
 far part-owners may be treated as copartners.^ But we should 
 say, that, if a part-owner, or even if a ship's husband, who is not 
 an owner, makes advances for a certain voyage, and then comes 
 into possession of the proceeds of that^voyage, he should have 
 a lien on them for his advances, by the general principles of 
 agency ; and as between the cases which admit and those that 
 deny that a part-owner, merely as such, has a lien on the ship for 
 his advances, while the more numerous authorities agree that 
 there is no such lien, we cannot but think that those who 
 favor it, — we may name Hardwicke in England,'^ and Story 
 here,^ — find some reason for their opinion in the nature of the 
 property and of the ownership. But.no principle will go so far 
 in reconciling the leading cases on this subject as this; a part- 
 owner, merely as such, has no lien whatever; but acquires such a 
 lien when any of the elements of partnership or agency with 
 
 1 Merrill v. Bartlett, 6 Pick. 46. 
 
 ^ Braden v. Gardner, 4 Pick. 456. 
 
 3 See Doddington v. Hallet, 1 Ves. Sen. 497 ; Ex parte Youns:, 2 Ves. & B. 242; 
 Ex parte Harrison, 2 Hose, 76 ; Ex parte Parry, 5 Ves. 575 ; Nicoll v. Mumford, 4 
 Johns. Ch. 522, reversed 20 Johns. 611, and n. 1, p. 96. This may, perhaps, be 
 regarded as one of the instances in which the common law has refused to yield to the 
 exigencies of the law merchant, and in which some mischief has been the result of the 
 conflict. The argument appears to have stood thus. A copartner certainly has a lien 
 on the common property for his charges and expenses ; a cotenant of a chattel cer- 
 tainly has not. A part-owner of a ship is but a cotenant of a chattel, and therefore 
 has no such lien. But when cases involving this question came before the courts, it 
 ■was apparent that the principles and reasons which gave this lien to a copartner ap- 
 plied with more or less force to a part-owner of a ship. And while the courts usually, 
 or, at least, for the most part, have adhered to the rule that a part-owner has no lien, 
 they have in some instances disregarded it, and in others admitted exceptions on very 
 narrow grounds. We cannot but think it would have been better if the whole had 
 been conceded, and a part-owner of a ship permitted to have his lien on the ship for 
 his expenses and charges on account of the ship. But this certainly is not the law, as 
 settled by the autlioritics. 
 
 * Doddington v. Hallet, 1 Ves. Sen. 497. 
 
 ■5 Story on Partnership, § 441, 443.
 
 CII. IV.] LIEXS OF PART-OWNERS, ETC. 103 
 
 bailment, upon which a lien may rest, enter into his relation 
 with the other part-owners. 
 
 So, too, the admission or acknowledgment of a partner, in 
 relation to the business of the firm, binds all the partners.^ But 
 this rule has been held not applicable to the case of a part-owner 
 of a ship ; ^ although we have no doubt it would be applied, 
 with other principles of copartnership, to cases of part-owner- 
 ship, to which particular circumstances gave a character of part- 
 nership. So it has been the custom for part-owners of a ship to 
 bring a bill against each other in equity for adjustment of ac- 
 counts, in like manner as is done by partners.^ And although 
 some doubt is cast upon the admiralty jurisdiction of this ques- 
 tion in England,^ there can be none whatever as to our own 
 admiralty courts. All part-owners should join in an action for a 
 tort committed against all; but if they do not, no advantage 
 can be taken of the non-joinder, except by a plea in abatement.^ 
 
 J Story on Partnership, § 107. 
 
 ^ Ja<rgers v. Binniugs, 1 Stark*. 64. 
 
 3 Story on Partnenship, 449 ; IMoffiitt v. Farquharson, 2 BrowTi's Ch. 338 ; Good v. 
 Blewitt, 13 Ves. 397. 
 
 * The Apollo, 1 Hagg. 306, 313, per Ld. Stoicell. 
 
 5 Cabell V. Yaughan, 1 Wms. Saund. 291, g; Dorkwray v. Dickenson, Comb. 
 366 ; Child v. Sands, 1 Salk. 31 ; Addison v. Ovcrend, 6 T. R. 766 ; Scdgworth v. 
 Overend, 7 T. R. 279; Barnardiston v. Chapman, eited 4 East, 122; Wheelwright 
 V. Depeyster, 1 Johns. 472 ; Ilart i\ Fitzgerald, 2 Mass. 509 ; Thompson v. Iloskins, 
 11 Mass. 419; Patten v. Gumey, 17 Mass. 182. 
 
 In Addison v. Overend, supra, Ld. Kmjjon held that it made no difierence in this 
 respect, tiiat the defect appeared on the plaintift"* declaration. The succeeding case of 
 Sedgworth v. Overend was an action brought by tlie remaining part-owner, who had 
 not joined in the first action against the same defendant for the injury to liis share in 
 the ship. The non-joinder was now pleaded in abatement, to which the former recov- 
 ery was answered, and upon demurrer tlie court were of opinion that the plea was bad. 
 Lawrence, J., remarking : " The defendants, not having pleaded in abatement in the 
 first action, cannot now make this objection ; by omitting to plead in abatementthen, 
 they assented to the severance of the actions. There might have been greater weight 
 in this objection, if there had been several remaining owners, and only one of them 
 had sued; but here the whole remaining interest in tiie ship is vested in this j)laintilT; 
 however, if tliere had been several remaining part-owners, I do not think the defend- 
 ants could ever have objected to the severance of the actions after they had omitted to 
 plead in abatement in the first action." In Phillips v. Claggett, 10 M. &. W. 102, 
 the declaration contained ten counts. Tlie first five were in trover; the rest set forth 
 that the plaintiffs having em])loyed tlie defendant at liis recjuest, for reward, as agent or 
 factor, to receive and take into ids possession certain goods belonging to tlie plaintirt's, 
 the defendant misconducted himself after the receipt tliereof, in and about tlie care 
 and disposal of the same, and by reason of such misconduct they became and were
 
 104 ON THE LAW OP SHIPPING. [bOOK I. 
 
 If, however, the action is for freight, or on any contract, the 
 defencUint may show the non-joinder in evidence under the gen- 
 eral issne.i But part-owners of a ship may be sued separately 
 on separate covenants.^ 
 
 If an action is brought against part-owners of a ship on a con- 
 tract, and all are not joined, if the defendants do not avail them- 
 selves of the non-joinder by a plea in abatement, they cannot 
 afterwards.^ It is now well settled, that an action of tort can 
 
 wholly lost to the plaintiffs. The defendant pleaded in ahatement to the whole decla- 
 ration, that the goods therein mentioned were not the property of the plaintiffs only, 
 but were the joint property of the plaintiffs and two other persons. On demun-er 
 the court ordered a judgment of respondmt ouster, on the ground that the plea was no 
 answer, except to the first five counts, and that, being bad as to part, it was bad as to the 
 whole. 
 
 1 In Stanley v. Ayles, 3 Keb. 444, Hale, C. J., was of opinion that indebitatus as- 
 sumpsit by one joint-owner of a ship for his share of the freight was joint or several 
 at the plaintiffs' election, and that evidence of the custom of merchants to bring it alone 
 was sufficient. It seems, however, well settled, that, where the contract is joint, either 
 by agreement or implication, as where the part-owners are general partners or quasi 
 partners in the particular adventure, they must sue togetlier. " The necessity of 
 all the part-owners joining as plaintiffs in the suit in tliis case," says Abbott, in his 
 treatise on Shipping, p. 115, "is founded upon the consideration, that all of them are 
 partners with respect to the concerns of the ship." Perhaps it is more accurate to 
 say that the part-owners are all parties to the contract, which relates to the use of the 
 property wliich they hold as tenants in common. And if they do not, it need not bo 
 pleaded in abatement, but may be shown under the general issue. Hart v. Fitzgerald, 
 2 Mass. 509 ; Austin v. Walsh, 2 Mass. 401 ; Peters v. Davis, 7 Mass. 257 ; Baker v. 
 Jewell, 6 Mass. 460 ; Robinson v. Gushing, 2 Fairf. 480. 
 
 In Baker v. Jewell, supra, the court were of opinion that the want of pi'oper plain- 
 tiffs in actions of contract is an exception to the merits, and is to be taken advan- 
 tage of either upon demurrer, in bar, or on the general issue, but not in abatement. 
 The other cases seem, however, to consider that it may be so pleaded. In replevin, all 
 must join, and if they do not, the court will abate the writ ex officio. Hart v. Fitz- 
 gerald, supra. 
 
 2 Scrvante.i?. James, 10 B. & C. 410, where the part-owners of a vessel agreed to 
 load and despatch her on a voyage, the loss or profits arising from which were to be 
 shared in proportion to the lading they respectively put on board, it was held, that a 
 third person, who promised expressly to pay to each his share, could not object to an 
 action by some of them, that they were partners. Bunn v. Morris, 3 Caines, 54. 
 
 3 " Formerly, indeed," remarked Ld. Kenijon, in Addison v. Overend, 6 T. R. 766, 
 770, "especially in cases of contract, it was held, that, if it appeared at the trial that 
 there was a joint contract, and only one of the contracting parties was sued, it was a de- 
 cisive objection against the plaintifTs action. But afterwards, for the convenience of the 
 suitors, on considering the principles on which those decisions pi'oceedcd, it was held, 
 that, if a defendant meant to avail himself of such an objection, he must plead in 
 abatement." See also. Boson v. Sandford, 2 Show. 478, 2 Salk. 440, 3 Mod. 
 321 ; Govett v. Radnidge, 3 East, 62; Rice v. Shute, 5 Burr. 2611 ; Abbot r. Smith, 
 2 Wm. Bl. 947; Marcpiand v. AYebb, 16 Jolins. 89; Hathaway r. Russell, 16 Mass.
 
 CH. lY.] LIENS OF PART-OWNERS, ETC. 105 
 
 be maintained against one or more part-owners, as well as 
 against all.^ 
 
 If an action, which should be brought against all the part- 
 owners of a ship, is brought against some only, and they satisfy 
 the judgment recovered, they will have an action for contribu- 
 
 473; Converse v. Sjmmes, 10 Mass. 377; Eobertson v. Smith, 18 Johns. 459; Ziele 
 V. Cnmphell, 2 Johns. Cas. 382. 
 
 But whore to ft. dcchiration in assumpsit, allej^ing that the defendants A. and B. 
 being owners of one fourtii part of a certain vessel, and that C. D., etc., being owners 
 of the other three fourtli parts, the several owners individually, in their several propor- 
 tions, and the defendants jointly, in their said proportion, promised the plaintiff to pay 
 him for certain repairs of the vessel by him performed ; and averring that the other 
 owners had paid, but that the defendants had not paid, the defendants pleaded in 
 abatement that it appeared by the plaintiff's own showing, tiiat there were other per- 
 sons lial)le who ought to have been joined, and subsequently, from a judgment of 
 "respondeat ouster," appealed, the judgment was affirmed. Barstow v. Fossett, 11 
 Mass. 250. 
 
 1 One part-owner cannot, therefore, plead in abatement that there are others who 
 should be joined with liim. An exception to this is where land is held in common, and 
 the title is put in controversy by the sui^ 1 Chitty on Plead. 75 ; Mitchell v. Tarbutt, 
 5 T. R. 649; Low v. Mumford, 14 JohS. 426; Patten v. Gurney, 17 Mass. 182. 
 
 But where the declaration assumes the form of an action ex delicto, alleging a breach 
 of duty and not a breach of contract, the question has arisen, and has been the subject 
 of much discussion in England, whether one part-owner who is sued alone can plead 
 in abatement that there are others who should have been joined with him. The ques- 
 tion being, whether the tort or breach of the duty resulting from the contract is to 
 be considered as the gist of the action, instead of the contract itself. It was held in 
 Govett V. Radiiidgc, 3 East, 62, that the ])lea was not available. This was in the 
 Court of King's Bench. Subsequently, the court of common pleas decided the oppo- 
 site way. Powell v. Layton, 5 B. & P. 365 ; and in another case, that a plaintiff 
 who failed to prove all the defendants to be part-owners could not recover at all. Max 
 V. Roberts, 5 B. & P. 454. This case was afterwards argued in the King's Bench 
 anc^in the Exche(iuer Chamber licfore all the judges. It is stated by tlie re])orter that 
 a difference of opinion was understood to prevail among them upon tliis question. The 
 case, however, went off on a collateral point. ]\Iax r. Roberts, 12 East, 89. In the 
 subsequent case of Weall v. King, 12 East, 452, the plaintiff declared in case, alleg- 
 ing a deceit to have been effected ujjon him by means of a warranty made by two de- 
 fendants upon a joint sale to him by both of sheep, their joint property, it was held 
 that the plaintiff could not recover upon proof of a contract of sale and warranty by 
 one only, as of liis separate property, as the action, although laid in tort, was founded 
 on the joint contract alleged. Sec also, Leslie v. Wilson, 3 Brod. & B. 171 ; Brether- 
 ton V. Wood, 3 Brod. & B. 54. In Pozzi v. Shipton, 8 A. & E. 963, the court 
 say : " We purposely ai)stain from giving any opinion, whether the doctrine in Govett 
 V. Radnidge, or that in Powell v. Layton, be the true doctrine, as we do not feel our- 
 selves called upon to decide between them, supposing them to differ." In Connecti- 
 cut, declarations in the form of tort, stating the injury to have been effected by breach 
 of a contract, have been sustained. Stoycl i: Westeott, 2 Day, 418; Bulkloy v. 
 Storer, 2 Day, 531.
 
 106 ON THE LAW OF SHIPPIXG. [bOOK I. 
 
 tion against those who do not pay. If persons are joined who 
 did not contract, or were not contracted with, this misjoinder 
 may be shown, either by 'defendants or plaintiffs, on the general 
 issue, and it is a fatal variance.^ 
 
 In fourteen of our Western and Southern States, actions 
 may be brought against vessels by name. They are Geor- 
 gia,2 Florida,^ Alabama,* Arkansas,^ Kentucky,^ Ohio,''' Michi- 
 
 1 Spalding v. Mure, 6 T. R. 36.3; Tom v. Goodrich, 2 Johns. 213; Livingston's 
 Ex'rs V. Tremper, 11 Joli^s. 101 ; Jordan v. Williins, 2 Wash. C. C. 482. 
 
 2 Act of Dec. 11, 1851, Hotchkiss, Stat. Law, 62.5. See Robinson v. Steamer 
 Lotus, 1 Kelly, 317; Butts r. Cuthliertson, G Ga. 159; Adlcins v. Baker, 7 Ga. 56. 
 
 3 Stat, of 1847, Thomps. Dig. 414. See Flint River Steamboat Co. v. Roberts, 2 
 Florida, 102. 
 
 * Act of 1836, Clay's Dig. 139. See Steamboat Robert Morris v. Williamson, 6 
 Ala. 50; George v. Skeates, 19 Ala. 738. 
 
 ^ Rev. Stat. ch. 14. In a suit by attachment against a boat, the plaintiff should 
 declare on the contract as having been made by the party making it, as the case may 
 be, and not as made by the boat, but the attachment must run against the boat by 
 name or description. Holeman v. Steamboat P. 11. White, 6 Eng. 237. See also, 
 Steamboat Napoleon v. Etter, 1 Eng. 103 ; ^amboat P. H. White v. Levy, 5 Eng. 
 411. 
 
 ^ Act of 1839, 3 Stat. Law, 112; Act of 1841, 3 Stat. Law, 113. See Strother v. 
 Lovejoy, 8 B. Mon. 135. 
 
 '' Ohio Stat. Swan's ed. ch. 26, p. 185; Curwen's Stat, in force, 503. This statute 
 has been held to be constitutional. Keating v. Spink, 3 Ohio State, 105. It sub- 
 stitutes the boat for the owner, and authorizes suit against it by name for all money 
 demands against the owner arising from debts contracted on account of, or for tlie use 
 of the boat, or for injuries resulting to passengers or property by the boat, or from 
 misconduct of officers and crew. The Canal Boat Huron v. Simmons, 1 1 Ohio, 458. 
 In a suit against a boat, however, the controversy is really and practically between the 
 plaintiff and the owners, and the provisions of the code applicable to parties in other 
 suits apply. Young v. Steamboat Virginia, I Handj-, 156. It only estalilishes the 
 liability of the craft, but gives no lien prior to its seizure. Scott v. The Plymouth, 1 
 Newb. Adm. 56; Wick v. The Samuel Strong, 1 Newb. Adm. 188. Therefore claims 
 against the vessel are to be satisfied in the order of actual seizure by warrant. Jones v. 
 Steamboat Commerce, 14 Ohio, 408. In this case, and in that of Steamboat Waverly 
 V. Clements, 14 Ohio, 28, it was held that a purchaser of a craft with notice of a debt or 
 liability created or incurred on account of it by the original owner, takes it subject to 
 such debt, but that a judicial sale vests the title in the purchaser free from all liability 
 to be again proceeded against under the statute for a claim existing at the time of the 
 sale. It was decided in Kellogg i'. Brennan, 14 Ohio, 72, that a mortgagee of a craft 
 has not a lien to be preferred to the claims of creditors, especially if the vessel is run- 
 ning for the joint interest of owners and mortgagees. So also in Provost r. Wilcox, 
 17 Ohio, 359. An action does not lie against the boat for money loaned ; nor for 
 breach of an executory contract for the transportation of goods where the goods are 
 not delivered to the vessel, and where, therefore, the obligations of a carrier have not 
 arisen. Dewitt v. Schooner St. Lawrence, 3 Ohio State, 325. The statute does not 
 extend to a claim for salvage, but if the boat receives the property saved, and promises
 
 en. IV.] LIENS OF PART-OWNERS, ETC. 107 
 
 gariji Incliana,^ Illinois,^ Missouri,* Mississippi,^ lowa,^ Wis- 
 
 to pay a certain sum, an action can be maintained against the boat for this. Boyd v. 
 Steamboat Falcon, 1 Handy, 362. In Lewis v. Sciiooner Cleveland, 12 Ohio, 341, 
 the statute was held to apjjly to tlie recovery of seamen's wages. See also, gen- 
 erally, ^Yayne v. Steamboat Gen. Pike, 16 Ohio, 421 ; Steamboat Albatross v. Wayne, 
 16 Ohio, 513; Schooner Argyle v. Worthington, 17 Ohio, 460. 
 
 1 The first statute in Michigan, relative to this subject, was passed in 1839 (Sess. L. 
 18.39, p. 70). This was repealed in 1846, (R. S. ch. 122.). Under the statute of 
 1839, it is held that there is no lien until the vessel is attached. Robinson i-. Steam- 
 boat Red Jacket, 1 Mich. 171; Moses v. Steamboat Missouri, 1 Mich. 507. In 
 declaring upon a bond executed under ^ 13, ch. 122, R. S., it is not necessary to 
 aver that the plaintiflP made the ajtplication in writing in the manner and form re- 
 quired by sections two and three of said chapter. Nor is it necessary to aver that the 
 vessel released upon the execution of the bond was, at tbe time of its seizure, within the 
 jurisdiction of the court. Truesdale v. Hazzard, 2 Mich. 344. See also. Ward v. 
 Willson, 3 Mich. 1. Where a vessel was attached at the instance of a creditor, and 
 notice to creditors to produce their claims published three months, and before any 
 order of ^ale, the owner of the vessel prociu-ed her discharge by giving the bond pro- 
 vided by statute, it was held that creditors, who failed to file their demands with the 
 proper officer within three months after the first publication of notice, lost th£ benefit of 
 the lien given them by statute. Watkins v. Atkinson, 2 Mich. 151. 
 
 - Indiana Stat. 1838. Under this statute it has been held, that, where there are sev- 
 eral liens on a boat, and the boat is sold on a judgment in a suit under the statute for 
 one of tlie claims, tlie purchaser takes the boat discharged of the rest. Steamboat 
 Rover v. Stiles, 5 Blackf. 483. See also Southwick v. Packet Boat Clyde, 6 Blackf. 
 148. 
 
 3 Rev. Stat. 1845, p. 71, ed. 1856, p. 107. It has been held, that, to enable the 
 owner or consignee of a vessel to take an appeal from the judgment of a justice of 
 the peace, he must make himself a party defendant to the suit before the justice. 
 Sch. Constitution v. Woodwoith, 1 Scam. 511. The master cannot proceed against 
 the vessel in rem for his wages. Chauncey v. Jackson, 4 Oilman, 435. And in Ger- 
 main V. Steam Tug Indiana, 11 111. 535, it was decided that the lien attaches the 
 moment the liability is incurred, but it cannot be asserted to the prejudice of creditors 
 or purchasers, unless the remedy be pursued within three months ; but a party is not 
 bound to enforce his lien till that ]jeriod has elapsed, and when once acquired it 
 remains in force, unaffected by any proceeding to enforce subsequent liens. And the 
 sale of a vessel under a judgment on an attachment obtained by a seaman or material 
 man does not divest any liens of a sui)erior degree, nor any antecedent liens of the 
 same degree. An attachment will not lie for towing a canal boat. Merriman v. 
 Canal Boat Col. Butts, 15 111. 585. 
 
 * Missouri R. C. 1845. The action must be commenced witliin six months after the 
 action has accrued, and in the county where the boat may be found at the time. If 
 the boat does not come within the jurisdiction till after that time, the lien will be gone. 
 
 6 Acts of 1840, 1841, Hutch. Dig. 288, art. 6; id. 290, art. 8. See Steamboat 
 General Wortli v. Hopkins, 30 INIiss. 703. 
 
 6 Rev. Stat. 101; Code, ch. 120. See Steamboat Kentucky r. Brooks, 1 Greene, 
 398 ; Ham v. Steamboat Hamburg, 2 Clarke, 460 ; West v. Barge Lady Praukhn, 2 
 Clarke, 522.
 
 108 ON THE LAW OF SHIPPING. [BOOK I. 
 
 consiii,^ California.^ But in these States, it seems that actions 
 
 Williamson v. Steamboat Missouri, 17 Mo. 374. Process cannot issue until a bond is 
 filed. Steamboat Archer v. Goldstein, 13 Mo. 24. Tlie attachment is dissolved by- 
 giving a bond, and after this the court cannot order the boat to be sold. St. Louis 
 Perpet. Ins. Co. v. Ford, 11 Mo. 295. On an ojjen running account, the lien continues 
 for six months from date of last item. Carson r. Steamboat Daniel Iliilman, 16 Mo. 
 256. But where the articles are furnished under a special contract, and delivered on 
 ditierent days, the lien attaches upon the delivery of the first. In computing the time 
 within which the suit should be commenced, the day on which the delivery is com- 
 pleted should be excluded. Steamboat Mary Blane v. Beehler, 12 Mo. 477. It is pro- 
 vided by statute, that when a constable attaches goods or property he shall take pos- 
 session, if they are accessible, and if not, he shall declare to the party in possession 
 that he attaches the same in hk hands, and summon such person as garnishee. It has 
 been held, that the return of a constable on a warrant against a steamboat that he exe- 
 cuted it by going on board the boat, and by reading the same to the clerk, finding the 
 sheriff in charge, is sufficient to give the justice issuing the wan-ant jurisdiction to hear 
 and determine the case against the boat. Steamboat Eureka v. Noel, 14 Mo. 513 ; 
 Parkinson v. Steamboat Eobert Fulton, 15 Mo. 258. A boat cannot be sold under an 
 execution issued by a justice of the peace. Markham v. Dozier, 12 Mo. 288. In a 
 suit against a boat before a justice, a judgment by default against the boat being ren- 
 dered, and a motion to set aside the same being overruled, an appeal will lie. Hore v. 
 Steamboat Belle of Attakapas, 11 Mo. 107. One of several part-owners can sue, 
 under the statute, in the name of the boat. Steamboat Beardstown i\ Goodrich, 16 
 Mo. 153. But he must give notice to all the others of his intention to sue, twenty days 
 before the commencement of the action. Langstaff v. Rock, 13 Mo. 579. Whether a 
 part-owner be mortgagee, or his right be absolute, he cannot acquire a lien on the 
 boat for services rendered while he was owner. Nor can he sue the other part-owners 
 without giving them the notice required by law, and he must show affirmatively that 
 he gave them such notice. Steamboat Raritan v. McCloy, 10 Mo. 534. The St. 
 Louis Court of Common Pleas has jurisdiction of actions of trespass against boats. 
 HoUoway r. Steamboat Western Belle, 11 Mo. 147. Under the statute an inter- 
 pleader cannot be entertained. Garrison v. McAllister, 13 Mo. 579. The statute pro- 
 vides that the demand must be for services rendered on board the boat. It is sufficient 
 if the demand be for services rendered as fireman, Jones v. Steamboat Morrisett, 21 
 Mo. 142, or as deck-hand, Williams v. Steamboat Morrisett, 21 Mo. 144. An action 
 will lie against the boat by name for the non-performance of a contract made by 
 her master, upon a trip up the river, for the transjjortation of freight upon the return 
 trip. Taylor v. Steamboat Eobert Campbell, 20 Mo. 254. A boat is not responsible 
 for a breach of a contract of affreightment made by a person in possession as tres- 
 passer. Steamboat Madison v. Wells, 14 Mo. 360 ; Bates v. Steamboat Madison, 18 
 Mo. 99. But persons furnishing supplies are not bound to incpire whether the master 
 or agent who has the actual possession of a vessel is legally entitled to such possession, 
 in order to secure a lien. Steamboat Lehigh v. Knox, 12 Mo. 508. There is no lien 
 upon a steamboat for the use of a private wharf boat. Bersie v. The Steamboat Shenan- 
 
 1 Wisconsin, Eev. Stat. 116. Sec Eand v. The Barge, 4 Chand. 68. 
 
 2 Laws of California, First Sess. p. 189, ch. 75, § 2; Compiled Laws of 1853, p. 
 576, ch. 6, § 318.
 
 CH. IV.] LrtlNS OF PART-OWNERS, ETC. 109 
 
 of this sort will not be sustained under their statutes, if the 
 cause of action arose out of the States.^ 
 
 doah, 21 j\Io. 18. The statute divides debts into four classes. Each class is to be pre- 
 ferred according to its number, the highest number being the last class. But a judicial 
 sale of a boat under the State law to satisfy a lien of one class, conveys to the pur- 
 chaser a title free from the liens of every other class, superior or inferior. Steaml)oat 
 Raritan v. Smith, 10 Mo. 527. So, of a sale under a similar law of another State. 
 Finney v. Steamboat Fayette, 10 Mo. 612. But a sale in another State, which has no 
 such law, docs not divest the lien. Steamboat Sea-Bird v. Beehler, 12 Mo. 569. An 
 action does not lie against a boat for damages sustained by a deck hand in being forced 
 on shore by the master in breach of the contract of hiring. Blass v. Steamboat Rob- 
 ert Campbell, 16 i\Io. 266. If the affidavit to a complaint against a boat is made by 
 the phiintifl's agent, it must show his means of knowing the truth of the particulars 
 specified in the com])Iaint. Bridgeford v. Steamboat Elk, 6 Mo. 356 ; Hamilton r. 
 Steamboat Ironton, 19 Mo. 523. And it must appear from the demand filed ^that the 
 claim gives a lien. Luft v. Steamboat Envoy, 19 Mo. 476. The return of the officer 
 to the writ must state that he seized the boat, but it need not state that he retains it in 
 his custody. Blaisdell v. Steamboat Wm. Pope, 19 Mo. 157. Where a boat is seized 
 and a bond given under the 9th section of the act, the lien is discharged, and the party 
 cannot, after the boat has been sold, present his demand for allowance against the 
 proceeds. Auvray v.' Steamboat Pawnee, 19 Mo. 537. Unless the boat is bonded 
 within five days after seizure, it is the duty of the officer to apply for an order of sale, 
 and he has no authority to liold her without bond, subject to final process in the suit. 
 Blaisdell v. Steam Ferry Boat Wm. Pope, 19 Mo. 538. For other decisions under the 
 statute, based upon general rules, see Ready v. Steamboat Highland Mary, 17 Mo. 461, 
 20 Mo. 264; Whitmore v. Steamboat Caroline, 20 Mo. 513; Chouteau v. Steamboat 
 St. Anthony, 16 Mo. 216, 20 Mo. 519; Dean v. Ritter, 18 Mo. 182; Porter v. Steam- 
 boat New England, 17 Mo. 290; Darby v. Steamboat Inda, 9 Mo. 645; Barge Re- 
 sort V. Brooke, 10 Mo. 531 ; Jarbee v. Steamboat Daniel Hillman, 19 Mo. 141 ; 
 Renshaw v. Steamboat Pawnee, 19 Mo. 532; Ritter v. Steamboat Jamestown, 23 Mo. 
 348. 
 
 1 Ohio — Steam.boat Champion v. Jantzen, 16 Ohio, 91; Goodsill v. Brig St. 
 Louis, 16 Ohio, 178; Missouri —- Steamboat Raritan v. Pollard, 10 Mo^ 583; Steam- 
 boat Time v. Parmlee, 10 Mo.'586 ; Noble v. Steamboat St. Antliony, 12 Mo. 261 ; 
 Twitchell v. Steamboat Missouri, 12 Mo. 412 ; Fisk v. Steamboat Forest City, 18 Mo. 
 587; James v. Steamboat Pawnee, 19 Mo. 517. In Swearington v. Steamboat Lynx, 
 13 Mo. 519, it was held that the Mississippi River, from the northern to the southern 
 boundary of the State of Missouri, is one of the waters of the State referred to in the 
 statute, and that the Missouri courts have jmisdiction over a tort committed on the 
 river, though it be on the Illinois side. In Illinois, the statute has no extraterritorial 
 jurisdiction. Frink v. King, 3 Scam. 144. So in Michigan. Bidwetl v. Wliitaker, 
 1 Mich. 469 ; Turner v. Lewis, 2 Mich. 350. And in Iowa, Steamboat Kentucky v. 
 Brooks, 1 Greene, 398. The law is the same in Kentucky. Strothcr v. Lovcjoy, 8 B. 
 Mon. 135. In Ohio, in 1848, a supplementary act was pas.sed, declaring that a wrong 
 construction iiad been ])laced upon the statute by the court, and declaring that the 
 courts should have jurisdiction in suits then pending as well as in future suits, notwith- 
 standing the boat was out of the jurisdiction of the State at the time tiie tort was com- 
 mitted or the supplies furnished. The court, 'however, in a subsequent case, held that 
 this act, so far as it provided for cases then pending, was unconstitutional and void, 
 VOL. L 10
 
 110 ON THE LAW OF SHIPPING. [BOOK I. 
 
 It should be added, as a general remark, that part-owners of a 
 ship are bound to deal fairly by each other, and that each, in the 
 exercise of his own powers, must respect the rights of all the 
 rest. This would flow from the principles of justice and mo- 
 rality ; but it would seem that public policy comes in aid of 
 these principles, in relation to a property, of which the proper 
 use and management are so important to the public. Hence, in 
 one intere'sting case, where some part-owners in a valuable ship 
 sold their shares by an indenture between them and the pur- 
 chaser, which contained covenants, that, in the opinion of the 
 court, tended to control the appointment of persons to be em- 
 ployed in the management and navigation of the ship, it was 
 held that such a contract violated the rights of the other owners, 
 and also principles of public policy ; and that the deed of trans- 
 fer was therefore void.^ 
 
 because those cases arose under a statute, which it was the province of the court, and 
 not of the legislature, to interpret. The Sch. Aurora Borealis v. Dobbie, 17 Ohio, 
 125. For a learned exposition of the various provisions and objects of the statutes of 
 the different States upon this subject, see Merrick v. Avery, 14 Arkans. 370. 
 1 Card V. Hope, 2 B. & C. 661.
 
 en. v.] LIABILITIES OF OWNERS GENERALLY. Ill 
 
 CHAPTER V. 
 
 OF THE LIABILITIES OF OWNERS GENERALLY. 
 
 Ax owner of a ship, in possession of her, and having both the 
 legal and equitable title, is liable for all supplies furnished and 
 all repairs made to her, and all work and service rendered for 
 her benefit, by order of the master, and in general, for all the 
 contracts made by him for the benefit of the vessel ; because, 
 from the necessity of the case, the master is invested with a very 
 wide authority to do and provide whatever is requisite for his 
 ship. An owner who should resist any claim of this kind would 
 probably be held to prove not only that the supplies or the work 
 rendered was of no use or benefit to the ship or to him, but that 
 it was so obviously useless that the furnisher could not have sup- 
 posed the master authorized to obtain it.^ Cases of this kind 
 often occur; but those which depend upon the question, how 
 far and when a quasi owner is liable in the same way as an 
 actual owner, or in the stead of the actual owner, are more 
 numerous and important.^ 
 
 1 See ante, p. 87, note 1, anApost, chapter on Powers and Duties of Master. 
 
 ^ Under what circumstances, and in wiiat cases, the charterer will he considered to be 
 the owner pro hac vice, we shall consider in our chapter on charter-parties. The ques- 
 tion in every case is, whose agent is the party ordering repairs. If of the general 
 owners, they are liable ; but if not, the charterer alone can be looked to. Thus in 
 Frazer t'. Marsh, 13 East, 238, the repairs were ordered by the captain, who was also 
 the charterer. It was held, that the general owner was not liable. Le Blanc, J., says : 
 "An owner would h^ve the appointment of the captain; but the defendant had no 
 right to appoint the captain under the charter-party." And in Reeve v. Davis, 1 A. 
 & E. 312, where a steam vessel was let by ciiarter-party, the registered owners agreeing 
 to keep the engine in order, but the charterer was to pay for all other repairs, it was 
 held, that repairs ordered by the charterer, who was also the captain, except those 
 necessary for the engines, could not be charged to the general owner, although the 
 person making the repairs was unacquainted with the special agreement between the 
 parties. Lord Denman, C. J., says : " The question is. Who were the contracting par- 
 ties ■? The mere circumstance of ownership may be sufficient to create a liability where 
 the vessel has been left under the control of a party who has given orders, if no inter- 
 vening ownership ha* been created. But if a ship is let out to hire, I do not see how
 
 112 ON THE LAW OF SHIPPING. [BOOK I. 
 
 Most of these questions occur in reference to mortgagees. It 
 is quite certain that a mortgagee should take possession as soon 
 as he reasonably can ; and that, if he fails to do so, unless pro- 
 tected by the provisions of some statute in his behalf, he is liable 
 to have his title defeated by any third party who acquires a right 
 to the ship in ignorance of the mortgagee's prior title, and in 
 good faith.^ If a mortgagee takes possession, and especially if he 
 takes out a new register in his own name, or if he does any acts 
 which can be deemed in some degree equivalent to public notice 
 that he is owner, this actual or apparently actual possession, 
 added to his legal title as owner, seems to confer upon him the 
 responsibilities and liabilities of an owner.^ The principal diffi- 
 
 the owners are liable for work done upon it by order of the party hiring, more than 
 the landlord who lets a house." In this country, these decisions have been repeatedly 
 followed. Perry v. Osborne, 5 Pick. 422 ; Urann v. Fletcher, 1 Gray, 125 ; Baker r. 
 Huckins, Sup. Jud. Ct. Mass. 19 Law Reporter, 43; Thompson v. Snow, 4 Greenl. 
 264 ; Houston v. Darling, 16 Maine, 413 ; Webb v. Peirce, 1 Curtis, C C. 104 ; Leonard 
 V. Huntin"-ton, 15 Johns. 298. The same principle underlies numerous other decisions 
 relative to contracts formed by charterers with third parties. See Reynolds v. Toppan, 
 15 Mass. 370; Taggard v. Loring, 16 Mass. 336; Cutler v. Winsor, 6 Pick. 335; 
 Thompson v. Hamilton, 12 Pick. 425; Manter v. Holmes, 10 Met. 402 ; Cutler r. 
 Thurlo, 20 Maine, 213 ; Williams v. Williams, 23 Maine, 17; Sproat v. Donnell, 26 
 Maine, 185. The vessel, however, is liable in rem for the breach of a contract of 
 affreightment entered into by the master, provided such contract be within the scope 
 of his authority. See post, p. 124, note 1. 
 
 1 Ex parte Matthews, 2 Ves. Sen. 272 ; Atkinson v. Maling, 2 T. R. 462 ; Man- v. 
 Glennie, 4 M. & S. 240 ; Hay v. Fairbaim, 2 B. & Aid. 193 ; Portland Bank v. Stubbs, 
 6 Mass. 422, 425 ; Tucker v. BuiSngton, 15 Mass. 477, 480; Badlam v. Tucker, 1 
 Pick. 389. See also cases ante, p. 79, note 1. In The Schooner Romp, Olcott's 
 Adm. 196, it was held, that a person who took a mortgage of a vessel then in port, but 
 suffered it to leave in the possession of the mortgagor, without any record on the ship's 
 papers of the transaction, could not recover the vessel from a subsequent bona fide pur- 
 chaser without notice, although he enforced his claim at the first opportunity after the 
 vessel left, and there was an agreement between the mortgagor and mortgagee that the 
 former should remain in possession until the mortgagee had a chance to enforce the 
 mortgage. D'Wolf i'. Harris, 4 Mason, 515, is doubted in this case, so far as it is an 
 authority in opposition to the last point. 
 
 2 Miln V. Spinola, 4 Hill (N. Y.) 177. See also, Hodgson v. Butts, 3 Cranch, 140. 
 And so if he exercises other acts of ownership ; as where liis name apjieared on the reg- 
 istrv as owner, and he caused the place of his residence to be painted on the stern of the 
 vessel. Tucker v. Buffington, 15 Mass. 477. But see Myers v. Willis, 17 C. B. 77, 33 
 Eng. L. & Eq. 204 ; affirmed, 18 C. B. 886, 36 Eng. L. & Eq. 350. And where the 
 inort"'a"-ee has possession, and the voyage is performed for his benefit, he is liable for 
 the wages of the master. Dean v. M'Ghie, 4 Bing. 45, 48, per Buirowjli, J. ; Fisher v. 
 Willin"-, 8 S. & R. 118, 122; Champlin v. Butler, 18 Johns. 169. But not where 
 the master, with full knowledge of a secret agreement bctwee» the mortgagor and
 
 CH. v.] LIABILITIES OF OAVNERS GENERALLY. 113 
 
 culty occurs when the question arises, whether a mortgagor in 
 possession is liable for supplies and repairs, or a mortgagee out 
 of possession. For if a mortgagee chooses not to take posses- 
 sion, he may, at his own pleasure, incur the danger of having 
 his title defeated by a third party, without any risk of impairing 
 it as between himself and the mortgagor. And if he takes no 
 possession, but is equally protected against all the world, either 
 by record or by any statutory provisions, as if he had possession, 
 this circumstance does not clothe him with all the liabilities 
 which spring only from actual possession. And then the ques- 
 tion occurs. Is he liable for supplies or work rendered to the 
 vessel ? 
 
 It is not unfrequently said, that this question is to be an- 
 swered by ascertaining to whom the credit was given.^ But 
 this is certainly not so. The answer must be made by com- 
 pounding three elements, and in their due proportion ; one of 
 them being this question of credit; another is, by whom was 
 this credit authorized or justified ; and there is still another, who 
 has received and holds the benefit of the service rendered. It is 
 a principle of very wide application, that, if any person accepts 
 and holds the benefit of any service, he cannot deny that it was 
 rendered to him, and for his benefit. This may seem to conflict 
 with another principle, that no man can make himself the credi- 
 tor of another against that other's will or without his consent. 
 But they are reconciled by this rule, that if the benefit be ren- 
 
 mortgagee that the latter should have no interest in the voyage, made a special agree- 
 ment with the former in relation to liis wages and privilege. Same case. 
 
 See also, the case of Martin v. I'axton, reported 1 Holt on Shipping, 353. Ahhott, 
 C. J., there held tliat the mortgagees of a ship who were the registered owners were 
 not liable to a claim for wages by a sailor, though they accrued upon a voyage which 
 was prosecuted for their benefit, the ship's freight and earnings during the voyage being 
 made over totliem by the same deed which conveyed the sliip as a security for advances, 
 on the ground tiiat the plaintiff had made the contract on which lie sued, with the 
 mortgagor, who was master of the vessel and remained in possession, and had given 
 credit to him and not to the defendants. 
 
 The mortgagee in i)ossess'ion is entitled to the freiglit accruing after possession 
 taken. Dean «.*M'Ghic, 4 Bing. 45; Kerswill v. Bishop, 2 Cromp. & J. 529 ; s. c. 
 2 Tyrw. 602. 
 
 Tlie presumption is in favor of the mortgagee's right to take possession of the vessel. 
 Holmes v. Sprowl, 31 Maine, 73. Hence the burden of proof will be u]>on him to 
 show that he possessed no right of possession and control, if he rests a denial of respon- 
 sibility on this ground. 
 
 ^ See ante, p. 91, note 1. 
 
 10*
 
 114 ON THE LAW OF SHIPPING. [bOOK I. 
 
 dered, then he who may receive it may also reject it ; it is 
 wholly at his choice whether to accept and hold it or not; and 
 if he does choose to accept and hold it, then on all grounds, 
 both of moral and legal justice, he puts himself in the same 
 position as if he had originally requested this service. But this 
 rule, again, has one important qualification; for it is not appli- 
 cable at all, or if at all only in a modified form, where the party 
 to be made debtor has no such choice, because the benefit done 
 cannot be renounced or rejected without a positive loss and 
 detriment. Does the conferring of it in that case, and the subse- 
 quent holding of it, create a legal claim against the holder ? 
 Perhaps the precise answer should be, that the holder, who 
 retains a benefit because he cannot reject it, — as if repairs were 
 made to a ship, of such a kind and extent that they could not be 
 removed without dismantling her, — should pay for it, not the 
 whole cost, but so much as it is certainly worth to him after 
 deducting full compensation for all the damage and incon- 
 venience of paying for it against his will. But the law cannot 
 well apply such nice distinctions in practice; and the cases 
 which hold an unconditional purchaser not in possession liable 
 for supplies, although the furnisher had no knowledge that he 
 was owner, or a mortgagee who has taken possession liable 
 although the furnisher did not know of his title or possession, 
 may rest, either upon the ground that he holds the benefit and 
 must therefore admit his request for it, or that his ownership 
 ■ confers a constructive agency and authority on the person — 
 usually the master — who ordered the supplies or repairs. But 
 dt cannot be said, with any accuracy, that in these cases credit 
 is given to these persons, even if the charge in the furnisher's 
 books is " to the Ship Henry and her owners." And it can 
 never be true, that the owner or mortgagee in possession is lia- 
 ble for repairs put in against his will, although, being put in, he 
 lets them remain. 
 
 The question, however, recurs. What is tl^e liability of a mort- 
 gagee out of possession ? And the general answer.now is, un- 
 doubtedly, that he is not liable.-*^ The question of credit will 
 
 1 With respect to mortgages of ships the same difficuhy seems to have existed as 
 ■vfith respect .to mortgages of laads. But while the equitable doctinnes laid down by 
 Lord Mansjldd in the great case of Eaton v. Jaques, 2 Dougl. 455, with respect to the
 
 CH. v.] 
 
 LIABILITIES OF OWNERS GENERALLY. 115 
 
 always be decisive where the parties have made a bargain, and 
 credit is given according to it, for there is nothing to prevent 
 
 true nature of the interest of a mortgagee out of possession, were subsequently over- 
 ruled in Great Britain, (see Williams v. Bosanquet, 1 Brod. & B. 238,) so far as 
 they applied to real estate, they maintained their ground successfully in the case of 
 ships. In this country, they were generally ratified to their full extent, almost from 
 the first. 
 
 A doubt certainly has been expressed, vide Westerdell v. Dale, 7 T. R. 30G, 312, per 
 Lord Keni/on, C. J. ; Tucker v. Buffington, 15 Mass. 477 ; but those cases in which 
 the mortgagee was held liable as owner. Ex parte Machel, 1 Hose, 447 ; Starr v. Ivjqox, 
 2 Conn. 215; Lord v. Ferguson, 9 N. H. 380; Henderson v. Mayhew, 2 Gill, 
 393, turn entirely on the rejection of the evidence offered to show the true nature of his 
 title, whilst they recognize the trath of the general rule, which seems now well settled, 
 namely, that where the mortgagee has neither taken possession nor exercised any other 
 act of ownership over the vessel, he is not answerable for, nor entitled to, the benefit of 
 the acts of the master or other agent of the ship. Thus, he is not liable for supplies and 
 repairs furnished to her. Jackson v. Vernon, 1 H. Bl. 114; Twentyman v. Ilart, 1 
 Stark. 366 ; Annett v. Carstairs, 3 Camp. 353 ; Baker v. Buckle, 7 J. B. Moore, 349 ; 
 Briggs V. Wilkinson, 7 B. & C. 30; MTntyre v. Scott, 8 Johns. 159 ; Eing v. Frank- 
 lin, 2 Hall, 1 ; Birkbeck v. Tucker, 2 Hall,"l21 ; Miln v. Spinola, 4 Hill (N. Y.) 177; 
 Heskcth v. Stevens, 7 Barb. 488; Brooks v. Bondsey, 17 Pick. 441; Winslow v. 
 Tarbox, 18 ]Maine, 132; Cutler v. Thurlo, 20 Maine, 213; Colson v. Bonzey, 6 
 Grecnl. 474 ; Lord v. Ferguson, 9 N. H. 380 ; Philips v. Ledley, 1 Wash. C. C. 226 ; 
 Duff r. Bayard, 4 Watts & S. 240; Cordray v. Mordecai, 2 Eich. 518. 
 
 And generally, he is not lialile for the contracts or neyliyence of the mortgagor who is 
 master. Thorn v. Hicks, 7 Cow. 697. Nor for the wages of the master and crew. 
 Annett v. Carstairs, 3 Camp. 353; Fisher v. Willing, 8 S. & E. 118. 
 
 On the other hand, he is not entitled to the freight earned by the ship. Chinnery 
 V. Blackbui-ne, 1 H. Bl. 117, (n.) ; Brancker v. Molyneux, 3 Scott, N. E. 332. 
 See also, post, ch. 7, § 8. In Myers v. Willis, 17 C. B. 77, 33 Eng. L. & Eq. 204, 
 the ship was transferred by the owner to the defendant by an absolute bill of sale, and 
 the transfer duly recorded. The vessel, at the time, was at sea. The transaction was 
 not intended as a sale, but merely as a collateral security for a loan. Subseipiently 
 the master, in ignorance of what had passed, entered into a contract of aft'reightment 
 with the plaintiff. This action was brought to recover damages for the breach of said 
 contract. Held, that the plaintiff could not recover. Jervis, C. J., delivering the opin- 
 ion of the court, said : " I am of opinion, that the defendant is entitled to judgment. 
 It is admitted that the law is now different from what it was formerly, when it used to 
 be considered that the register only was to be looked at, and that it alone was conclu- 
 sive as to the ownership of the vessel, and conclusive, therefore, of the liability of the 
 party appearing thereon as owner ; but it is now settled that the question of liability in 
 these cases is to be determined in the same way as in all other cases of contract, by 
 ascertaining with whom the contract was made. That will depend, in this case, on the 
 relation of principal and agent — whose agent was the master ? It has been admitted, 
 that, in the case of a mortgagee of a vessel who takes merely the security of the ship, 
 not intending to incur liability as owner, a mere entry In' him into possession does not 
 render him liable for the contracts of the master, made after the excci^ion of the mort- 
 gage and before entry, because that alone does not prove an intention on the part of
 
 116 ON THE LAW OF SHIPPING. [bOOK I. 
 
 their making what bargain they will. A furnisher of supplies 
 may agree with the master ordering them, even if there be an 
 absolute owner in possession, to charge them only to the master 
 and look to nobody else ; and then he has no claim beyond the 
 master. So a mortgagee out of possession, or indeed a stranger, 
 may order the goods or service as for himself, or may agree to 
 pay for them if supplied to the ship, and then he will be bound 
 to pay for them without any reference to his interest in the 
 ship. 
 
 And this bargain, or any other, may be proved by, or inferred 
 from, circumstances. But. on the one hand, a mortgagee who 
 does not have the possession and conTrol of the ship does not 
 authorize a furnisher to consider him the owner: and if credit 
 be given him. it does not bind him unless given with his con- 
 sent. On the other hand, so long as the mortgagor retains 
 possession and control, the ship may be regarded as being only 
 a security for a debt which is less than its value, the mortgagor 
 not only owning the equity of redemprion. bur keepins- posses- 
 sion of the vessel, that he may, by her earnings, enable him- 
 self to pay the debt, and, by adding to, or preserving her 
 value, add to or preserve bis own interest in her if he proposes 
 to pay the debt without her, or in the excess of her value over 
 the debt. And therefore the mortgagee cannot be made liable 
 on the ground of accepting and holding the benefit rendered by 
 the supplies or repairs. 
 
 It should be noticed here, — and will be more fully stated 
 hereafter, — that "material-men" so called, that is, those who 
 supply the materials for supplying and repairing a ship, and all 
 who work upon her for such purposes, have, by the maritime 
 law. a lien on the ship itself for the whole amount due them, 
 excepting in the home port.^ But this is usually enforceable 
 
 the mortgagee to adopt the master as his agent." Afnrraed in Exchequer Chamber, 
 IS C. B. 886, 36 Eng. L. & Eq. 350. See also Hackwood r. Lvall, 17 C. B. 124, 
 33 Eng. L. i Eq. 211. 
 
 1 Ex pane Shank, 1 Atk. 234; Boxton r. Snee, 1 Vcs. Sen. 154: TlVatkinson v. 
 Bemadiston, 2 P. Wms. 367; Westerdell v. Dale, 7 T. E. 306; Rich v. Coe, Covrp. 
 636 ; Justin i". Ballam, 1 Salk. .34 ; The Calisto, Daveis, 29 ; s. e. Read r. The Hull 
 of a New Brig, 1 Storv, 244 ; Davis r. A New Brig, Gilpin, 473 ; The Brig Nestor, 1 
 Sumn. 73 ; Pevn^ux v. Howard, 7 Pet. 324 ; The St. Jago- de Cuba, 9 Wheat. 409; 
 The General Smith, 4 Wheat. 433; Buddington v. Stewan, 14 Conn. 404; Davis v.
 
 CH. v.] LIAEILITIES OF CORTES GEXERALLT. 117 
 
 only in admirahy. — although some recent State statates seem 
 to give a similar right and remedy in the State courts, — and 
 we prefer considering the subject hereafter, when treating of ad- 
 miralty' process and jurisdiction. 
 
 ChUd, Dareis, 71 ; The Sch. ilarion, 1 Story, 63 ; Leland r. The Ship iledora, 2 
 Woodb. i M. 92, 96.
 
 118 ON THE LAW OF SHIPPING. [bOOK I. 
 
 CHAPTER VI. 
 
 OF HYPOTHECATION BY BOTTOMEY. 
 
 In some respects this is analogous to the mortgage of a ship, 
 but in others it is wholly different. The questions which arise 
 from the bottomry of a vessel are, in this country, frequently set- 
 tled in admiralty, and some of them must be so ; and it is to be 
 regretted, perhaps, that the principles of admiralty law are not 
 always, and in all courts, applied to these questions. These 
 principles are, partly from usage and precedent and partly from 
 statutory provision, as we shall hereafter state more fully, those 
 of the civil law. Our common law mortgage, where the 
 property must pass to the creditor, and it is a matter of indiffer- 
 ence whether the possession remains with the debtor or accom- 
 panies the property, was, strictly speaking, unknown to the civil 
 law. And it is quite common for our courts to speak of pledg- 
 ing a ship by hypothecation. But this is not accurate. It was 
 of the essence of a pledge (pignus) of the civil law, that the 
 possession of the thing pledged passed to the pledgee, and re- 
 mained with him ; ^ and this rule has lately been applied and recog- 
 nized by courts of common law.^ But in hypothecation the 
 thing hypothecated might remain in the possession of the 
 owner. The creditor might acquire neither the property nor the 
 possession of it. Thus, he had no jus in re, but he had dijus ad 
 rem; a right or interest in or to the thing hypothecated, a privi- 
 legium, or, as we call it, a lien, which could be enforced for the 
 payment of his debt.^ 
 
 1 Justinian, Inst. Lib. 4, tit. 6, § 7 ; Dig. Lib. 13, tit. 7, 1. 35 ; Vinnius ad Inst. Lib. 4, 
 tit. 6, § 7, p. 800 ; Domat's Civil Law, by Strahan, § 1657, Ciishing's ed. vol. 1, p. 
 648; The Brig Nestor, 1 Sumner, 73, 81. 
 
 ^Evall 1-. Rolle, 1 Atk. 165; Reeves v. Capper, 5 Bing. N. C. 136; Homes v. 
 Crane, 2 Pick. 607 ; Cortelyou v. Lansing, 2 Caines Cas. 200 ; Brownell r. Hawkins, 
 4 Barb. 491. 
 
 3 The Tobago, 5 Eob. Adm. 218, 222 ; Johnson v. Sliippen, 2 Ld. Eaym. 982 ; The 
 Young Jlechanic, 2 Curtis, C. C. 404.
 
 CH. VI.] HYPOTHECATION BY BOTTOMRY. 119 
 
 We consider that this rule has been expressly applied by the 
 Supreme Court of the United States to hypothecation by bot- 
 tomry.i In the case in which this Avas done, (in 180S,) the 
 court intimate a doubt whether a bottomry bond, made by the 
 owner in a home port, can be within the admiralty jurisdiction.^ 
 It has been repeatedly asserted, that every valid bottomry bond, 
 wherever or however made, is wholly within that jurisdiction; 
 but this is certain only of bottomry bonds made abroad, and 
 perhaps should be limited to those which are made by the 
 master to meet the necessities of the ship.'^ It would be very 
 difficult for a court of common law, by any common law process', 
 to enforce a lien by bottomry on a ship, in any other way than 
 by considering that the contract of bottomry gave the creditor 
 the property or possession, or both, of the ship, subject only to 
 defeasance on payment of the debt; and then, permitting him to 
 make it available for his security, in the same manner as if it 
 were a pledge. But unless it were a mere pledge or mortgage of 
 the ship, at home, there would be need of admiralty jurisdiction. 
 
 Money may be secured by a bottomry bond by the owner, in 
 the home port, and not unfrequently is so in this country.^ But 
 
 1 Blaine v. The Charles Carter, 4 Cranch, 328. See also, United States v. Delaware 
 Ins. Co. 4 Wash. C. C. 418. 
 
 2 The same is also stated by Abbott, p. 15.3. But this opinion of the learned author 
 is founded entirely on a dictum of Holt, C. J., in Johnson v. Siiippcn, 2 Ld. Ka}TH. 
 982. There is also a dictum of Liturence, J., in the case of Busk i'. Fearon, B. R., 
 JNIich. T., 44 Geo. 3. The case is reported in 4 East, 319, but the dictum is not 
 noticed. 
 
 ^ In this country, this question has been much discussed. Besides the intimation of 
 the court in Blaine v. The Charles Carter, supra, the following cases support the yiew, 
 that there is no jurisdiction in admiralty if the vessel is hypothecated by the owner 
 in the home port. Forbes v. Brig Hannah, Hopk. 99, Bee, 348 ; Knight v. 
 The Attila, Crabbe, 326, and affirmed in circuit court, but not reported ; Hurry v. Ship 
 John & Alice, 1 Wash. C. C. 293 ; Hurry i-. Assignees of Hurry, 2 Wasii. C. C. 
 145. On the other hand, the jurisdiction has been sustained by Mr. Justice Win- 
 chester in Wilraer v. The Smilax, 2 Pet. Adm. 295, n. ; by Mr. Justice Thompson, in 
 the case of The Sloop INIary, 1 Paine, C. C. 671 ; and by Mr. Justice Story, in an 
 elaborate judgment in the case of The Brig Draco, 2 Sumner, 157. See also, Selden v. 
 llendrickson, 1 Brock. C. C. 396. The jurisdiction was also maintained by the 
 court of admiralty in Ireland, Corish v. The Murphy, 2 Browne, Ciy. & Adm. Law, 
 Appen. 530. 
 
 * See cases supra, also Thomdike ^^ Stone, 11 Pick. 183; Greeley v. Waterhouse, 
 19 Maine, 9. So of a respondentia bond. Couard r. The Atlantic Ins. Co. 1 Pet. 
 386.
 
 120 ON THE LAW OF SHIPPING. [BOOK I. 
 
 originally, and, as we think, more properly, this bond was seldom 
 made, excepting by a master in a foreign port, where money, 
 which was necessary, could not be raised otherwise. And it 
 will be more convenient to defer what more we have to say on 
 this topic until we treat of the powers and duties of the master. 
 It may be added, that the statute of 1850,^ which requires that 
 mortgages of ships shall be registered at the custom-house, ex- 
 pressly provides that the lien by bottomry created on any vessel 
 during her voyage by a loan of money or materials, necessary to 
 enable such vessel to prosecute a voyage, shall not lose its pri- 
 ority, or be affected by the provisions of the act. And it has 
 been decided that bottomry bonds are not within the purview of 
 a State statute requiring record of mortgages of personal prop- 
 erty.2 
 
 1 Chapter 27, 9 U. S. Stats, at Large, 440. 
 
 2 The Brig Draco, 2 Sumner, 157, 189 ; Fontaine v. Beers, 19 Ala. 722.
 
 en. VII.] CARRIAGE OF GOODS ON FREIGHT. 121 
 
 CHAPTER VII. 
 
 OF THE USE OF THE SHIP BY THE OWNER. 
 
 SECTION I. 
 
 OF THE CARRIAGE OF GOODS ON FREIGHT. 
 
 A SHIP, as the great instrument of commerce, may be regarded 
 as of great importance, not only to its immediate owner, but to 
 the community ; and the public policy or general expediency of 
 promoting and assisting the profitable use and employment of 
 the ship, in the commercial interchange of commodities between 
 distant nations, has a considerable effect upon the law of ship- 
 ping. It is probable that the system of liens hereafter spoken 
 of, and many of the duties and rights of the owner and master 
 of the ship, on the one hand, and of the shippers of goods on 
 the other, if they do not arise from this policy, are nevertheless 
 affected by it, and owe to it whatever modifications cause them 
 to differ from what they would be under the ordinary rules of 
 the law of contracts. 
 
 The owner sometimes uses his own ship, and sometimes lets 
 it out to others, who use it. We will begin by considering the 
 use he makes of it himself. 
 
 He may carry his own merchandise, or that of others, or both. 
 The word " freight " has several meanings. Beawes defines it as 
 "the sum agreed on for hire of a ship, entirely or in part, for the 
 carriage of goods." ^ This is now the usual meaning of this 
 word in law. In common conversation, however, it often 
 means also the goods carried. And that this was, if not its 
 original meaning, one of its early meanings, is certain from the 
 
 1 Beawes, Lex Mercatoria, 1 1 8. 
 VOL. I. 11
 
 122 ON THE LAW OF SHIPPING. [bOOK I. 
 
 case of Bright v. Cowper (1620),^ the report of which begins, " Ac- 
 tion of covenant brought upon a covenant made by the merchant 
 with a master of a ship, that, if he would bring his freight to 
 such a port, he would pay him such a sum." Now, however, it 
 means the sum to be paid for such carriage, and also the sum 
 which might be payable therefor.^ For, if a ship-owner carries 
 his own goods only, he may insure his freight eo nomine, mean- 
 ing what another would have paid him for carriage of the same 
 goods on the same voyage, or include it in a valuation of his 
 ship or of his cargo.^ 
 
 It may be remarked in the outset, because the principle lies at 
 the basis of the law of freight, that the ship and the cargo have re- 
 ciprocal rights against each other, and reciprocal liens to 'enforce 
 the rights of each against the other. The ship-owner undertakes 
 and promises to carry in his ship the goods of the shipper to 
 their destined port in safety, by the proper route, and in due sea- 
 son. This implies a promise that his ship is sea-worthy in all 
 respects, that it has a sufficient master and crew, who will take 
 due care of the goods as to lading them on board, carrying 
 and delivering them, and who will navigate the ship to her des- 
 tined port in the usual way, without unnecessary delay or devia- 
 tion.'* And if there be a failure in any of these particulars, and 
 
 1 1 Brownl. & G. 21. 
 
 2 In Robinson v. Manufacturers' Ins. Co. 1 Met. 143, 145, Shaw, C. J., said : 
 " The term freight is somewhat equivocal, and has several meanings. It is sometimes 
 us^d to describe the compensation for the carriage of goods, sometimes for the hire of a 
 vessel, and sometimes it is used in a loose sense to signify the goods or property car- 
 ried. It is never, however, used in the latter sense, when intended to describe a sep- 
 arate subject of insurance ; but is then used in contradistinction to ship and cargo, to 
 designate the compensation to be paid to the ship-owner for the use of his vessel, cither 
 for the cari'iage of merchandise, or for the hire of the vessel/ in whole or in part." See 
 also, Adams i'. Penn. Ins. Co. 1 Rawle, 97, 106. 
 
 3 Flint V. Flemying, 1 B. & Ad. 45 ; Wolcott v. Eagle Ins. Co. 4 Pick. 429 ; Clark 
 V. Ocean Ins. Co. 16 Pick. 289. So, under the statute of 1851, c. 43, § 3, limiting the 
 liability of ship-owners to the value of the sliip and freight, it has been held that the 
 term " freight " includes the earnings of the vessel in transporting the goods of her own- 
 ers. Allen V. Mackay, 16 Law Reporter, 686. 
 
 * What amounts to a deviation, and what circumstances will excuse it, we shall 
 treat of in our chapters on Insurance. We speak of it here only so far as it bears upon 
 the relation existing betweeii the owner of the ship and the freighter. It is well settled, 
 that, if the vessel deviates, and the cargo is insured, the risk terminates, and the under- 
 writers are exonerated. It follows, as a necessary consequence, that the ship-owner 
 having put an end to the contract existing between the freighter q^d the undenmter,
 
 CH. Vn.] CARRIAGE OF GOODS ON FREIGHT. 123 
 
 the goods are thereby injured or lessened in their value to their 
 owner, the ship-owner is responsible, and the ship itself is 
 
 should stand in the place of the latter, and assume his risks. But a question has 
 arisen, whether the freighter is bound to show not only that the vessel deviated and 
 the goods were subsequently lost or damaged, but also that the loss occurred in conse- 
 quence of the deviation. In Souter v. Baymore, 7 Barr, 415, a contract was entered 
 into for the exclusive use of the ship for a specified voyage. The ma.ster, however, put 
 into an intermediate port, and took a deck load of wood. After the vessel sailed from 
 this port, she encountered a storm, and the cargo was damaged. The master brought 
 an action for his freight in one of the State courts of Pennsj-lvania, and the damage 
 done to tlie goods was set up in defence. It was contended, that, as the master de- 
 viated unnecessarily, he was liable for any subsequent loss during the voyage ; and that, 
 as the contract was for the exclusive use of the vessel, the taking of the deck load 
 made the owner responsible as an insurer, but the court held that he was only liable 
 for the damage occasioned by the deviation or breach of the contract, and that he was 
 entitled to his freight without any deduction. Although we think it clear that the 
 owner was entitled to the freight, if the consignee accepted the goods, yet a deduction 
 should have been made for the damage done to the cargo. After the suit was com- 
 menced in the State court, but before trial, the shipper brought an action in the District 
 Court of the United States against the ship to recover for the damage done to the 
 cargo. Knox v. The Ninetta, Crabbe, 534. And it was held, that, by the deviation, the 
 captain became an insurer, and the ship was liable for any subsequent loss. This we 
 consider to be the well settled rule of law. Davis v. GaiTett, 6 Bing. 716 ; Freeman 
 V. Taylor, 8 Bing. 124 ; Parker v. James, 4 Camp. 112; Hand v. Baynes, 4 Whart. 
 204; Crosby v. Fitch, 12 Conn. 410; Bond v. The Cora, 2 Pet. Adm. 373, 379, 
 2 Wash. C. C. 80 ; Walsh v. Homer, 10 Mo. 6. 
 
 In M'Andrew v. Adams, 1 Bing. N. C. 29, a charter-party was entered into on the 
 20th of October, by which the owner of the ship agreed to go in ballast from Portsmouth 
 to St. Michael's, and bring back a cargo of fruit direct to London. The charterer was to 
 be allowed thirty-five running days for loading and unloading, to commence on the first 
 of the next December, and if the vessel did not arrive at St. M.'s by the 31st of Januaiy 
 of the next j-ear, the charterer was to be at lilierty to rescind the charter-party. It was 
 held that the ship-owner was bound to send the ship at once to St. Michael's, and was 
 not at liberty to make an intermediate voyage for his own purposes, notwithstanding 
 he arrived there before the 31st of January. In Nichols r. Tremlctt, U. S. Dist. Ct. 
 Mass., Bo.ston Courier, June 22, 1857, the charter-party represented the vessel to be 
 lying in the harbor of Boston. It appeared by the evidence that she was in point of 
 fact^t Searsport in Maine undergoing repairs, and was detained for that purpose some 
 days. The action was brought for demurrage at the port of loading, and it was con- 
 tended that none was due, because this deviation having taken place, it was said to be 
 impossible to ascertain whether there would have been an}-, or if any, how much, de- 
 tention beyond the rightful lay-days, if the libellant had used due diligence and arrived 
 at tlie proper time. But tlie evidence on this point being very full, the court were of 
 opinion, that, if the vessel had sailed immediately, she would have arrived at the port of 
 loading on a certain day, and at that time, as there was not a full suj)ply of the mer- 
 chandise Avhich slie was to carry ready for shii)ment, a delay of a certain number of 
 days would have happened, and for that the respondent was liable. An intention to 
 deviate is not sufficient. Hobart v. Norton, 8 Pick. 159. Usage to deviate may 
 be shown. Lowiy v. Eusscll, 8 Pick. 360; Thatcher v. McCulloh, Olcott, Adm.
 
 124 ON THE LAW OF SHIPPING. [bOOK I. 
 
 subjected to the lien of the shipper of the goods, in order that he 
 may enforce his rights, or obtain indemnity for a violation of 
 them.^ On the other hand, if the goods are so carried, the 
 
 365. If the shipper receive the goods, he is hound to pay freight, but may offset the 
 damage. Knox v. The Ninetta, supra ; Thatcher v. McCulloh, supra. In Dunseth v. 
 Wade, 2 Scam. 28.5, 289, it is said, that : " If a common canier attempts to perform his 
 contract in a manner different from his undertaking, he becomes an insurer for the 
 absolute deliveiy of the goods, and cannot avail himself of any exceptions made in his 
 behalf in the conti'act." This applies where goods are carried on deck without the 
 knowledge of the shipper. See post, ch. 7, § 5, n. So if goods are to be sent by a spec- 
 ified ship, and they are sent by another, this is a breach of the contract, and makes 
 the ship-owners liable as insurers. Bazin v. Eichardson, U. S. C. C. Penn. 20 Law 
 Reporter, 129. See also, as to the effect of a deviation on the contract of bottomry, 
 post, ch. 11, § 4, n., and on the contract of seamen, post, ch. 12, § 8, n. 
 
 1 Cleirac, Us et Coustumes do la Mer, 72. Abbott, in his treatise on Shipping, 127, 
 is of the opinion that in England the court of admiralty has no jurisdiction to enforce 
 the lien against the ship in such a case. See also, Birley v. Gladstone, 3 M. & S. 205 ; 
 Gladstone v. Birley, 2 Meriv. 401 ; Pierson v. Robinson, 3 Swanst. 139, n. In this 
 country, the existence of the lien is not only fully recognized, but it can be enforced by 
 process in rem in admiralty. The Gold Hunter, 1 Bl. & Howl. Adm. 300 ; The Boston, 
 id. 309 ; The Grafton, Olcott, Adm. 43, 1 Blatchf. C. C. 173 ; The Rebecca Ware, 188 ; 
 The Waldo, Daveis, 161 ; Tlie Brig Casco, id. 184; The Sch. Volunteer, 1 Sumner, 
 551 ; Clark v. Barnwell, 12 How. 272 ; Rich v. Lambert, id. 347. And every contract 
 of the master, entered into within the usual scope of his authority, binds the vessel to 
 the fulfilment of it. The Paragon, Ware, 322 ; The Phebe, id. 263 ; Hewett v. 
 Buck, 17 Maine, 147. In the case of The Druid, 1 Wm. Rob. 391, 399, Dr. 
 Lushmgton used the following language in reference to a lien on the ship: "In all 
 causes of action which may arise from circumstances occurring during the ownership 
 of the persons whose ship is proceeded against, I apprehend that no suit could ever be 
 maintained against a ship where the owners were not themselves personally liable, or 
 where their personal liability had not been given up, as in bottomry bonds, by taking a 
 lien on the vessel. The liability of the ship, and the responsibility of the owners in 
 such cases are convertible terms ; the ship is not liable if the owners are not responsi- 
 ble, and vice versa, no responsibility can attach upon the owners if the ship is exempt 
 and not liable to be proceeded against." See also. The Bold Buccleugh, 3 Wm. Rob. 
 220, 231, 2 Eng. L. & Eq. 536, 540. We have seen that if the charterers have the entire 
 control of the vessel, and the master is their agent, the general owners are not person- 
 ally liable for a breach of a contract entered into by the master with a third pafty. 
 The question then arises, Is there any remedy against the vessel, or is it confined to the 
 personal liability of the charterers 1 The language used by Dr. Lushington, above, 
 must be confined to the case then before him, and is not susceptible of a general appli- 
 cation. In The Druid, the action was in rem against a vessel for damages caused by a 
 collision, occasioned by the wilful tort of the captain. The court held, that, as the 
 owners would not be personally liable in such a case, the vessel was not. It is now 
 settled, that a vessel is liable in rem for a breach of a contract made by a master within 
 the scope of his employment, although he be appointed by the charterer. The Phebe, 
 Ware, 203 ; The William and Emmeline, 1 Bl. & Howl. Adm. 70, 71 ; Sch. Freeman 
 V. Buckingham, 18 How. 182 ; Thomas v. Osborn, 19 How. 22. And in Jackson t'. The 
 Julia Smith, 1 Xewb. Adm. 61, 6 McLean, C. C.'484, it was held, that, where the pos-
 
 en. VII.] CARRIAGE OF GOODS ON FREIGHT. 125 
 
 owner of the goods is bound to pay to the owner of the ship 
 the freight earned By the carriage, and the ship-owner has a lien 
 on the goods to enforce his rights against them.^ And if the 
 
 session of the vessel is not tortious, but under color of right, a contract of affreightment 
 made with the master would bind the vessel. But for acts not within the scope of his 
 employment, the owners are not personally liable, nor is the ship. See post, p. 135, 
 n. 1. 
 
 1 That the ship-owner, and the master, as his agent, have a lien on the goods carried 
 in their ship for the freight, is a proposition which appears never to have been dis- 
 puted. Molloy, Lib. 2, c. 4, § 12 ; Bcawes, Lex Mcrcatoria, Tit. Freight, 118 ; Jacob- 
 sen, Sea Laws, -261; Anonymous, 12 Mod. 447; id. 511; Artaza v. Smallpiece, 1 
 Esp. 23; Sodergreen v. Flight, cited 6 East, 622; Wilson v. Kymcr, 1 M. & S. 157 ; 
 Mitchell V. Scaife, 4 Camp. 298 ; Hutton v. Bragg, 2 Marsh. 339, 345, 7 Taunt. 14, 
 per Gihbs, C. J.; Faith v. East India Co. 4 B. & Aid. 630; Christie v. Lewis, 
 2 Brod. & B. 410, 5 Moore, 211; Lucas v. Nockells, 4 Bing. 729; Campion v. 
 Colvin, 3 Bing. N. C. 17, 3 Scott, 338; Lane v. Penniman, 4 IMass. 91; Lewis 
 V. Hancock, 11 Mass. 72; Cowing v. Snow, 11 Mass. 415; Pickman v. Woods, 6 
 Pick. 248; Clarkson v. Edes, 4 Cow. 470; Chandler v. Belden, IS Johns. 157; Van 
 Bokkelin v. IngersoU, 5 Wend. 315 ; Lander v. Clark, 1 Hall, 355, 374 ; Holmes v. Pa- 
 venstedt, 5 Sandf. 97 ; Jordan v. James, 5 Ohio, 88; Fernandez v. Silva, 1 La. 269; 
 Palmer v. Gracie, 4 "Wash. C. C. 110; Gracie v. Palmer, 8 Wheat. 605; Buggies v. 
 Bucknor, 1 Paine, C. C. 358 ; Drinkwater ?;. The Brig Spartan, Ware, 149; The Sch. 
 Volunteer, 1 Sumner, 551, 569 ; Certain Logs of Mahogany, 2 Sumner, 589, 601 ; Per- 
 kins i\ Hill, 2 Woodb. & M. 158. But respecting the true character and origin of tiiis 
 lien, the same unanimity by no means exists. On the one hand, it is supposed by Mr. 
 Justice Ware to exist liy the custom of merchants, and to be derived from tlie rule of 
 the maritime law. " The general right of the master and owner to retain the merchan- 
 dise for the freight due upon it," he saj's, "has not been denied. It is too well estab- 
 lished to admit of doubt. It is a principle of the general maritime law, the common 
 law of the commercial world, sanctioned by all the maritime codes, ancient and mod- 
 ern, and confirmed by numerous decisions of the highest courts, both in this countiy 
 and England. Nor does there appear to be any difference in principle, nor is any 
 recognized in law, whether tlie merchant takes tlie whole A-^essel by a charter-party, or 
 sends his goods in a general ship. The lien of the owners is as perfect for the hire of 
 the vessel stipulated in the charter-party, as it is for the freight stipulated in the bill of 
 lading. In lx)th cases the claim is privileged in the same degree and to the same 
 extent." Drinkwater v. The Brig Spartan, Ware, 149, 155. 
 
 The rule of the maritime law, here alluded to, is tims given by Cleirac : " Le 
 batel est oblige a la marchandise, et la niarchandise au batel." See Cleirac on the 
 21st Art. of the Jugcmens d'Oleron. Roccus declares, in his treatise "De Navibus ct 
 Naulo," Not. 87, " Nimlum solvi debet via excquutiva, ex mcrcibus conductis, vcl a 
 domino ipsarum," (upon the accon)plishmcnt of the voyage, the freight is to be paid 
 out of the merchandise carried, or by the owner of the same,) and further on in Not. 
 88 : " Naulum convcntum solvendum est infra dies octo, decurrendos a die quo navis 
 pervenerit ad portum destinatum pro exoneratione mercium et magister navis non 
 potest compelli ad consigiiationem mercium, quousque naulum sibi non solvatur ; 
 imo antcquam exonerentur mcrces, naulum est solvendum ; nisi aliter convenerit 
 dominus meiTium cum navis magistro." (Tlic freight agreed upon is to be paid 
 within the eight days following the day upon which the ship reached the port designed 
 
 11*
 
 126 ON THE LAW OF SHIPPING. [BOOK 1. 
 
 goods are once laden on board, the ship-owner has a completed 
 right to carry them the whole distance; nor can the shipper re- 
 
 fer the discharge of the goods, and tlie master cannot be compelled to deliver over the 
 goods in so far as the freight is not paid to him ; indeed the freight is to be paid before 
 the goods are discharged, unless the owner has otherwise agreed with the master.) 
 
 The Ordonnance de la Marine, Lib. 3, Tit. 1, Art. 11, declared, that, "Le navire, 
 ses agres et apparaux, le fret et les marchandises charge'es, seront respectivement 
 affectes aux conventions de la charte-partie." (The ship, rigging, etc., the freight 
 and the goods laden shall be respectively bound to the conditions of the charter-party.) 
 On which Valin remarks : " The privilege granted by this article is to be understood 
 respectively and distributively, that is to say, that the goods of the shipper are specially 
 liable to the payment of the freight," " nam et ipsum naulum potentius est," says the 
 Law, 6, § 1, "qui potiores in pignore." According to the same author, this privilege 
 did not empower the master to detain the goods on board if the fi-eight was not paid, 
 but when tiiey had been discharged, he might prevent their transportation or take 
 possession of them in the lighters or the storehouse, or even after they had reached 
 the consignee, provided he did so within fifteen days, and before their transfer to a 
 third party. Tlie provision of the ordinance has been modified by the Code de Com- 
 merce, Art. 306, under which the master is entitled to cause the goods to be deposited 
 in a warehouse, while the freight is paid, subject to the same conditions as before. 
 
 From the language of the earlier English writers on commercial law, it certainly 
 appears as if they considered the rule of the English law to be derived from these 
 sources. MoUoy says, De Jure Maritimo, Lib. 2, ch. 4, § 12, "The lading of the 
 ship in construction of the law is tacitly obliged for the freight, the same being in point 
 of payment preferred before any other debts to which the goods so laden are liable, 
 though sucli debts as to time were precedent to the freight, for the goods remain, as it 
 were, bailed for the same." 
 
 So Beawes, in his Lex Mercatoria, 118, remarks : " Freight must be paid 
 in preference to all other debts for whose payment the goods stand engaged, but 
 as those are responsible to the ship for her hire, so is the ship to the owner of the 
 goods," etc. And Abbott, p. 284-286, seems to incline towards this view, although he 
 speaks vaguely of the liens depending in cases where it is not created by special con- 
 tract, on some general principle, witiiout specifying what principle. Indeed, the origin 
 of the lien in question does not appear to have been ever discussed by the English 
 courts. See also. Chandler v. Belden, 18 Johns. 157, 162, per Spencer, C. J. "The 
 I'ight to retain the cargo for the freight has grown out of the usage of trade." 
 
 But it is to be remarked, that, although derived from the maritime law, the lien, as 
 known to the courts of Great Britain and America, is clearly not a maritime lien, prop- 
 erly speaking. It is not a "privilegium," a privileged claim upon the goods, following 
 them wherever they go, like the reciprocal lien which binds the ship by the maritime 
 law to answer for the destruction of the goods. It is not so considered, we have seen, 
 bv the continental writers, who speak merely of the master's right to retain the goods 
 for his freight, whilst the Ordonnance de la Marine merely allows him to resume the 
 possession against tl»c original consignee, and within fifteen days ; and Chancellor 
 Walworth expressly distinguishes it therefrom. " The right of the master to retain the 
 freight money, after it has come into his possession, for a general balance against the 
 owner, and his lien upon the cargo to compel payment of the freight, as the agent 
 and acting in behalf of the owner, are frequently mentioned in the reports, and are 
 sometimes confounded with the lien or claim of the master on the freight, as against
 
 CH. VII.] CARRIAGE OP GOODS ON FREIGHT. 127 
 
 claim them and take them out of the ship, (unless by his consent,) 
 without paying to the owner either his full freight, or compensa- 
 
 the owner, before it has been actually received from the shipper. The two first are in 
 the nature of common laio liens ; and if the master part with the money in the one case, or 
 the possession of the goods in the other, the lien is gone ; but the lien on the freight, as 
 such, by the maritime law, which is now under discussion, is incidental to, or a conse- 
 quence of the lien upon the ship ; and it may be enforced in the same manner, by a pro- 
 ceeding in rem in the admiralty courts. It is not strictly a lien, or mere right to retain 
 possession of the subject until payment of the debt charged thereon, but it is tlic privi- 
 lege of the civil law, or an equitable lien which may be enforced, although the claimant 
 never was in the actual possession of the subject, out of the proceeds of which satisfac- 
 tion is sought." Van Bokkclin v. Ingersoll, 5 Wend. 315, 325. 
 
 "Phis opinion of the learned chancellor is in sti-ict accordance with the vast majority 
 of the cases, from the early anonymous one in 12 Mod. 511, down to the present day. 
 
 It may be this common law character of the ship-owner's lien on the goods for his 
 freight, the fact that it appears to consist in a mere right to detain them, as a security 
 for payment, which has induced tlie courts and text-writers in some instances to make 
 the same depend not on the maritime, but on the policy of the common law. This 
 has been usually done by identifying it with the lien of the common carrier, from 
 which it would result that the lien must be confined to such ship-owners as fall within 
 the denomination of common carriers, whereas Lord IIoU expressly stated, in an early 
 case, Anonymous, 12 Mod. 447, that every master of a ship was entitled to it, (in the 
 absence of any agreement to the contrary). It is true that ship-owners and masters 
 engaged in carrying the goods of others for them are usually styled common carriers 
 by the courts, without distinction, a proposition which, although constantly reiterated, 
 we shall hereafter have occasion to contest. See Whitaker on Liens, 95 ; Cross on 
 Liens, 287 ; Pinney v. Wells, 10 Conn. 104 ; Grade v. Palmer, 8 Wheat. 605, 632. 
 
 It is a little singular that in this last case Mr. Justice Johnson, in anotlier part of his 
 decision, gives a somewhat different definition of this lien ; he says, p. 635 : " On what 
 principles rests the general lien of the ship on the goods for freight ? The master is the 
 agent of the ship-owner to receive and transport ; the goods are improved in value by 
 the cost and cares of transportation. As the bailee of the shipper, the goods are in 
 the custody and possession of the master and ship-owner, and the law will not suffer 
 tliat possession to be violated until the laborer has received his hire." 
 
 This appears to us a ground, on which to rest the ship-owner's lien, entirely distinct 
 from his character as a common carrier. The principle here advocated applies as 
 forcibly to the case of a private carrier as a common carrier, and is indeed the appli- 
 cation to the case of carriers of another species of lien, that which every bailee who, 
 by his labor and skill, has conferred value upon a specific chattel bailed to him, pos- 
 sesses on it, for his stipulated reward. See M'Intyre v. Carver, 2 Watts & S. 392 ; 
 Forth V. Simpson, 13 Q. B. 680; Morgan v. Congdon, 4 Comst. 551. 
 
 It has been said that by parting witli the possession of the goods the owner loses his 
 lien, but this is not the case where his delivery of them is procured by fraud, for such 
 a delivery is void in the sight of the laW Bigelow v. Heaton, 6 Ilill (N. Y.) 43. But he 
 is free to waive his lien and resort to his personal remedy against the owner of the 
 goods, if he thinks proper. Shatzell v. Ilart, 2 A. Iv. Marsh. 191. And it was licld in 
 a Louisiana case, that a master wiio refused to deliver the goods on other grounds than 
 the non-payment of the freiglit, thereby lost his right to avail himself of tlie want of 
 tender. Fernandez v. Silva, 1 La. 2G9, 274. It has been decided in England, tiiat the
 
 128 ON THE LAW OF SHIPPING. [BOOK I. 
 
 tion for any trouble or loss sustained by him. How far the obli- 
 gation of the shipper extends seems however giot to be settled 
 by the authorities.^ 
 
 ship-owner has no lien for dead freight on goods candied ; that is, for the freight which 
 is due for the unoccupied portion of the ship. Birley v. Gladstone, 3 M. & S. 205 ; 
 Phillips u. Rodie, 15 East, 547. 
 
 1 It is said in Curling v. Long, 1 B. & P. 634, that, before the ship breaks 
 ground, the ship-owner has no lien for freight ; but notwithstanding this case, it is now 
 well settled, that, as soon as he has them on board, and perhaps as soon as he has 
 taken charge of them, he lias a right to retain tliem and carry them on. There seems, 
 however, to -be some conflict of authority in regard to the right of the master to 
 demand any thing more than a compensation for the trouble and expense he has been 
 put to in consequence of having to unload the goods. Thus in Clemson v. Davideon, 
 
 5 Binn. 392, 401, Mr. Justice Brackenridge says : " It has been made very clear to me, 
 that the ship-owner had no lien on the goods put on board, beyond the compensation 
 for the taking on board,' the stowage, unshipping, and putting on the wharf again, and 
 the demurrage to her sailing which this might occasion, this being before he broke 
 ground." These remarks are obiter, the controversy being between two other parties, 
 both of whom were willing to send on the goods. See also. Burgess v. Gun, 3 Harris 
 
 6 J. 225. In Keyser v. Harbeck, 3 Duer, 373, the master of a vessel gave written 
 receipts to the owner of goods delivered on board, and on these receipts being given 
 up, issued a bill of lading in good faith to the party returning them, who had obtained 
 them by false pretences from the shipper. It was held that the captain was not liable 
 in trover to the shipper, unless the bills of lading were surrendered, or fully indemni- 
 fied against, and all damages consequent upon the delay necessary to unload them 
 and all expenses of loading and unloading them were paid. Lord Tenterden, in his trea- 
 tise on Shipping, p. 595, states the law as follows : "A merchant who has laden goods 
 cannot insist upon having them relanded and delivered to him, without paying the 
 freight that might become due for the carriage of them, and indemnifying the master 
 against the consequences of any bill of lading signed by him." In Tindal v. Taylor, 
 4 Ellis & B. 219, 28 Eng. L. & Eq. 210, the Court of Queen's Bench cite the above 
 passage with commendation, and Lord Campbell says : " It is argued that there can be 
 no lien on the goods for freight not yet earned or due ; but when tlie goods were laden, 
 to be carried on a particular voyage, there was a contract that the master should carry 
 them in the ship upon that voyage for freight ; and the general rule is, that a contract 
 once made cannot be dissolved except with the consent of both the contracting parties. 
 By the usage of trade, the merchant, if he redemands the goods in a reasonable time 
 before the ship sails, is entitled to have them delivered back to him on paying the 
 freight that might become due for the carriage of them, and on indemnifying the mas- 
 ter against the consequences of any bills of lading signed for them ; but these are condi- 
 tions to be performed before the original contract can be effected by the demand of the 
 goods. It would be most unjust to the owners and master of the ship, if we were to 
 hold that upon a simple demand at any time the goods must be delivered back in the 
 port of outfit." See also, Thompson v. SnMl, 1 C. B. 328, 354 ; Thompson v. 
 Trail, 2 Car. & P. 334. In Bartlett v. Camley, 19 Law Reporter, 579, an action was 
 brought by the master of a vessel against a sheriff for seizing and removing from his 
 vessel certain goods under an attachment against the shipper, the plaintiff having exe- 
 cuted and delivered to the shipper a bill of lading for the goods before the levy of the 
 attachment. The court held that the plaintiff was entitled to recover, by way of dam-
 
 CH. ^t:i.] carriage of goods ox freight. 129 
 
 The whole law of freight consists of little else than the appli- 
 cation of these two rules or principles. They are of equal force 
 and value ; equally ancient and well established ; and ought to 
 be equally regarded and enforced in every court. But this is 
 not the case in England, nor indeed in this country. There are 
 obvious difficulties in the enforcement of the lien which the 
 cargo has against the ship, in any court of common law, or even 
 of equity. But admiralty finds no difficulty. The hostility to 
 admiralty in England abridged its power of enforcing this lien 
 there, and at the same time the courts of common law devised 
 no method of their own for doing the same thing with any com- 
 pleteness. Abbott, in his Law of Shipping, (p. 284,) says : " The 
 right of the merchant who would seek to make this privilege 
 available, ranks low in the order of precedence of privileged 
 claims against the ship." He then enumerates a long list of 
 these claims, and says, that "most of them are justly preferred 
 to it." And then adds, "the privilege of the ship-owner against 
 the goods for his freight is of a more beneficial character." But 
 we apprehend that this opinion rests mainly upon the imperfect 
 manner in which the common law of England has adopted the 
 law merchant, and its very successful opposition to that system 
 of judicature, the law of admiralty, which would have supplied 
 
 ages, the freight on the goods, according to the rate stipulated, and the difference 
 between the value of the goods wiiicli the plaintiff got after their return to him and 
 the amount paid for the deficiency to the indorsees of the bill of lading, he being pre- 
 vented from delivering them by the seizure. This question came before the Supreme 
 Court of Massachusetts about the same time that Tindal v. Taylor was decided. 
 Bailey i'. Damon, 3 Gray, 92. The action was assumpsit on a contract wiicreby the 
 defendants agreed to ship, and the plaintiffs to transport, a certain quantity of lumber 
 to California for an agreed price. The lumber was put on board the vessel, but was 
 afterwards taken away by the defendants. The plaintiffs tlien procured other mer- 
 chandise, ])ut at a less freight, and the ship finally sailed. In the court below, the 
 judge ruled that the plaintiffs were entitled to recover the amount of freight and prim- 
 age which they would liave earned if they had taken the lumber to California, 
 adding the demurrage for the time they were delaj-ed to obtain other freight, and 
 deducting the freight they received from other shipments of goods of other persons, 
 and their net earnings on their own siiipments. But the court in banc held that no 
 freiglit was due before the commencement of the voyage, and no lien existed for it, 
 and that the voyage did not commence till the ship broke ground. They also held 
 that tlie plaintiff w;\5 entitled to recover full indemnity for the breach of the contract; 
 but in determining this, the diligence used by the ship-owner in procuring another 
 cargo, and the fact whether another voyage might not liave been substituted which 
 would have proved more beneficial, should be taken into consideration. A new trial 
 was therefore ordered.
 
 130 ON THE LAW OF SHIPPING. [BOOK I. 
 
 all deficiencies. The lien of the ship on the cargo for the freight 
 is fully as beneficial as he states it to be. But the lien of the 
 cargo on the ship is, in this country, enforced in admiralty by 
 process in rein as fully as any other maritime lien whatever. 
 We defer speaking of it particularly until we treat of the Law 
 of Admiralty ; here only remarking, that it is enforced with us 
 even against a subsequent purchaser of a vessel, either when he 
 bought with a knowledge of the claim of the cargo, or when he 
 bought so soon after the arrival of the ship that the owner of 
 the cargo had no previous opportunity to enforce his lien.^ 
 
 The owner of the ship carries only his own goods, or carries 
 all of them that he chooses to send, and fills up his ship with 
 the goods of others, or carries only the goods of others. And if 
 he carries only the goods of others, he does this by offering his 
 ship as a general ship, or letting her out by a charter-party. 
 
 If he offers his ship as a general ship, this is usually done by 
 advertisement stating the names of the ship and of the master, 
 the general character of the ship, the time of sailing, and the 
 proposed voyage. An owner would not be bound to strict 
 accuracy in all these particulars ; but would be obliged to make 
 compensation to a shipper who was injured, without his own 
 fault, by a material misrepresentation in any of these particulars.^ 
 
 1 The Eebecca, "Ware, 188. 
 
 2 The question has arisen in England whether an advertisement, that a vessel would 
 sail with convoy, amounted to a warranty that she would so sail, or whether it merely 
 meant that such was the intention. In Runquist v. Ditchell, 3 Esp. 64, the vessel was 
 just up at the Royal Exchange as a general ship for Oporto, wan-anted to sail with 
 convoy. She did not so sail, and was consequently lost. The court held that the ship- 
 owners were liable. See also Snell v. MaiTyatt, in K. B. 48 Geo. 3, repotted in Abbott 
 on Shipping, p. 320 ; Sanderson v. Busher, 4 Camp. 54, note ; and Magalhaens v. 
 Busher, 4 Camp. 54. In these last two cases the stipulations in regard to convoy were 
 inserted in the bills of lading. In Runquist v. Ditchell, it is stated in the report that 
 the bill of lading contained the warranty in question. The court, however, decided 
 the case on the ground that the advertisement amounted to an express stipulation ; and 
 in Sanderson v. Busher, Gibhs, C. J., stated that the advertisement alone contained the 
 clause in regard to convoy. See also Freeman i'. Baker, 5 B. & Ad. 797. A case 
 where the same principles are involved has recently been decided by the Court of Ex- 
 chequer in England, Cranston v. Marshall, 5 Exch. 395. The plaintiff apphed to the 
 defendants, who were emigration agents, for a passage for himself and family to Aus- 
 tralia. By a letter in reply, they agreed to take them for ^65. The letter was written 
 on a printed circular, which stated the times of the sailing of the vessels. One of them, 
 the Asiatic, was to sail from London on the 15th of August, and from Plymouth on the 
 
 ' 25th. A deposit of £32, 10s. was paid. The ship did not sail from London till the
 
 CH. VII.] CARRIAGE OF GOODS ON FREIGHT. 131 
 
 And, if the course or ultimate destination of the ship were 
 changed, it would be the duty of the ship-owner to notice the 
 same in his advertisement, and vary that accordingly.^ 
 
 28th of August, nor from Plymouth till the 4th of September. On the 31 st of August 
 the plaintiff sailed from Plymouth in another vessel. The court said : " When parties 
 by advertisement hold out that they are ready to give a written guaranty that a vessel 
 shall sail on a particular day, and a contract is entered into specifically on that footing, 
 in substance that is a warranty to sail on the day named." The question, however, in 
 this class of cases is, what was the intention of the parties, and also, whether time was 
 of the essence of the contract. Thus, in the case above cited, the defendants offered 
 to give a written guaranty that the vessels would sail on such days. For this guaranty 
 nothing extra was to be paid, and the court therefore held that this showed that the 
 guaranty was given by the advertisement and the circular. In YateS v. Duff, 5 Car. & 
 P. 369, the court left it for the jury to say whether time was of the essence of the con- 
 tract, and, if not, whether the ship sailed within a reasonable time. See also Glaholm 
 V. Hays, 2 Man. & G. 257 ; Ollive v. Booker, 1 Exch. 416. In Howard i\ Cobb, 
 U. S. C. C. 19 Law Reporter, 377, it was assumed by Mr. Justice AWso«, that time 
 was of the essence of the contract. The case was similar to Cranston v. Marshall, 
 supra. The vessel did not arrive at the port from which the parties were to sail on 
 the day named, being detained by stress of weather. The court held this to be no ex- 
 cuse, and said : " The contract bound the owner to have his vessel at the place and time 
 designated; that he had stipulated for as a part consideration for the price paid, and 
 assumed upon himself the responsibility of performance ; and the failure operated a 
 breach of the engagement, and subjected him to a return of the price paid. The winds 
 and weather are no excuse for the non-fulfilment of a contract as to the time of the 
 commencement of the voyage. If these circumstances had been intended iis elements 
 of it, they should have been expressly provided for by the owner, and then all parties 
 concerned would have understood it." See also Denton v. The Great Northern R. Co. 
 5 Ellis & B. 860, 34 Eng. L. & Eq. 154. In Mills v. Shult, 2 E. D. Smith, 139, au 
 action was brought against the owner of a steamship for the breach of a condition set 
 forth in a handbill in which the steamer was advertised to sail. It appeared in evi- 
 dence that when the plaintiff went to buy his ticket he saw at the oflicc a handbill, 
 which stated that the steamer would sail dii-ect for Kew York on a day mentioned. 
 The handbill was signed by A & B as agents of the steamer, of whom also the i)hun- 
 tiff bought his ticket. The vessel sailed on the day mentioned, but did not jtroeeed 
 directly to New York, but stopped on the way to perform a salvage service, for which 
 her owners were paid. Tiie ticket bought by the plaintiff was recognized on board as 
 a valid one. The court held that these facts were not sufficient of themselves to war- 
 rant the presumption that A & B were the agents of the steamer, and so authorized 
 to bind the company. The coiTcctness of this decision we are inclined to doubt. 
 
 1 In Peel v. Price, 4 Camp. 243, G'ibbs, C. J. said : " When a card has been puljlishcd, 
 advertising a ship for a specific voyage, if that be altered, I am of opinion that the 
 owner is bound to give specific notice of the alteration to all persons who afterwards 
 ship goods on board the vessel, and that he is otherwise answerable for the loss which 
 they sustain by sui)posing that the destination of the vessel remains unaltered."
 
 132 ON THE LAW OF SIIIPPIXG. [BOOK I. 
 
 SECTION 11. 
 
 OF THE BILL OF LADING. 
 
 The reception of the goods by the master on board of the ship, 
 or at a wharf or quay near the ship, for the purpose of carriage 
 therein, or by any person authorised by the owner or master so 
 to receive them, or seeming to have this authority by the action 
 or assent of the owners or master, binds the ship to the safe 
 carriage and delivery of the goods.^ 
 
 1 In Molloy, b. 2, c. 2, § 2, the law is stated as follows : " And therefore so soon as 
 merchandises and other commodities are put aboard the ship, whether she be riding in 
 port, haven, or any other part of the seas, he that is Exercitor navis is chargeable there- 
 with. In GofFv. Clinkard, cited in Dale v. Hall, 1 Wilson, 281, an action was brought 
 against a master of a ship who undertook to carry goods from London to Amsterdam. 
 A puncheon of rum was delivered on board, and, while being let down into the hold, 
 was staved. A verdict was rendered for the plaintiff, though the defendant proved 
 that he endeavored to let it down with all possible care. See also Morse v. Slue, 1 
 "Vent. 190; Rich v. Kneeland, Hob. 17; Williams v. Peytavin, 4 Mart. La. 304. In 
 Cobban v. Downe, 5 Esp. 41, an action was brought against a wharfinger to recover 
 the value of goods which had been delivered to the mate of a vessel by the wharfinger. 
 Lord EUenhorough held, that, under these circumstances, the liability of the wharfinger 
 had ceased, because that of the vessel had commenced. As soon as a delivery is made, 
 the vessel is bound. Faulkner v. Wright, 1 Rice, 107 ; Greenwood v. Cooper, 10 La. Ann. 
 796 ; Clarke v. Needles, 25 Penn. State, 338 ; Snow v. Carruth, U. S. Dist. Ct. Mass. 
 Dist. 19 Law Reporter, 198. In this last case the damage was done to the goods after 
 they were delivered, but before the bills of lading were signed. See also Greenwood v. 
 Cooper, 10 La. Ann. 796. Mr. Justice Betts has, however, in a recent case in the Dis- 
 trict Court of New York, held that a vessel is not liable in rem until the goods are on 
 board, although they have been delivered to the officers of the vessel. Dill v. The Ber- 
 tram. In support of this the following cases are cited. The Sch. Freeman v. Bucking- 
 han;, 18 How. 182 ; Vandewater v. Mills, 19 How. 82 ; The Young Mechanic, 2 Curtis, 
 C. 'C. 404 ; The Kiersage, 2 Curtis, C. C. 421. But, after a careful examination of these 
 cases, we are entirely of the opinion that they do not support the principle contended 
 for by Mr. Justice Betts, although there are dicta in some of them which seem to 
 lead to such a conclusion ; but the points actually decided are in every respect con- 
 sistent with the law as stated in the text. See note 1, p. 135. In Trowbridge v. 
 Chapin, 23 Conn. 595, goods were delivered on board a steamer, which was a common 
 can-ier between New York and New Haven. The defendant proved that the clerk of 
 the boat was the only person whose duty it was to receive freight and give receipts for 
 it. The goods were taken on board by a porter, who testified that he saw but one man 
 on board, who was either a deck hand, or one employed to sweep the decks. He told 
 this man that he had goods for New Haven, and the man told him to put them down
 
 CH. VII.] BILL OF LADING. 133 
 
 We say any person on board ; but it is not unusual in some 
 of our commercial cities, for the bill of lading to be signed and 
 delivered in the counting-room of the owners, by a clerk of the 
 owners. If he says, " A B, for C D, the master of said ship," the 
 master would only be held by it being proved that he had given 
 this authority, which, however, might be inferred from his knowl- 
 edge and assent, or even knowledge and silence. Then the mas- 
 ter and owners would be bound in the same way as if he signed 
 it himself.^ If the clerk says, " A B, for E ¥, etc., owners of 
 ship, etc." the owners would be bound on proof of authority, 
 which would be inferred from knowledge and assent or usage. 
 But it may be open to doubt whether this would bind the ship, 
 the owners, and the master, in the same way and to the same 
 extent as a bill of lading signed by the master. Perhaps, how- 
 ever, the courts would give it, substantially, the same effect. 
 We are not aware of any adjudications on this precise ques- 
 tion. 
 
 If a written receipt is given for the goods, the obligation is no 
 stronger, but the receipt is primd facie and very strong evidence 
 
 in a certain spot. He then left without making any further inquiiy. A majority of 
 the court, consisting of three judges, held that, as the deck hand was not the agent of 
 the boat for the purpose of receiving freight, the owners had incurred no liability. 
 The Chief Justice and the remaining judge held that the porter had a right to presume 
 that the man had been left in charge by the proper officers of the boat, and that the 
 rule, that where one of two innocent persons must suffer by the fraud of another, the 
 loss shall fall on him who placed that person in a situation to commit the fraud, ajiplied. 
 They therefore were of opinion that the defendant should be held. The Chief Justice, 
 in the course of his opinion, gives this illustration : " Suppose a quantity of freight had 
 been shipped by the boat from New Haven to a merchant in New York, and a carman 
 had taken it and carried it to the merchant's store, which he found open and no one in, or 
 about it, except a man at work in the store, would not the carman be justified in leav- 
 ino- the goods deposited in the store, in the manner directed by the man at work ? " 
 The dissenting opinion pronounced by the learned Chief Justice seems to us to be better 
 founded on principle and authority tluin the decision of the majority of the court. The 
 mere putting'^f the goods on the deck, without a delivery to some one on board author, 
 ized to receive them, is clearly not good. In Wright v. Caldwell, 3 Midi. 51, 
 a distinction was taken between the delivery to be made by a passenger and by a 
 freio'hter. A person intending to take passage on a steamboat I)rought his trunk on 
 board and put it in the usual pUice for baggage, but did not deliver it to any one on 
 board. Through mistake he did not take passage, and the trunk was lost. It was 
 held that he must sue either in the character of passenger or freighter. That as pas- 
 senger the delivery was good, but as he did not take passage he could not recover, and 
 as freighter, he had not made a good delivery, 
 i Putnam v. Tillotson, 13 Met. 517. 
 VOL. I. 12
 
 134 ON THE LAW OF SHIPPING. [bOOK I. 
 
 of the reception of the goods.^ [f, however, a bill of lading is 
 given, this has an important influence over the rights and obliga- 
 tions of the parties. 
 
 The bill of lading is a very ancient document; in general use 
 among all commercial nations, and is much the same in its form 
 and provisions in various countries ; ^ and long and repeated 
 adjudications have left but few open questions as to its effect. 
 The usual form we give in our Appendix. It is now quite com- 
 mon for our railroad companies, and perhaps other carriers, to 
 give a receipt closely resembling a bill of lading ; but it is inti- 
 mated in a recent English case, that the bill of lading is properly 
 a sea document, not applicable to land carriage, or inland carri- • 
 ers by water.-^ We do not know, however, any important conse- 
 quences or influences of a bill of lading as used in shipping y 
 which might not be applied to a similar document in case of; 
 land carriage, if the facts and circumstances were, in other re-,"^ 
 spects, similar. It is in substance the written acknowledgmentv 
 of the master that he has received such goods as it describes, for^' 
 the voyage stated, to be carried on the terms stated, and deliv-^ 
 ered to the persons specified in the bill.^ It is a document of- /' 
 
 1 By the nsual course of trade in England and in this countrr, the master or mate 
 signs a receipt for the goods, at the time of the shipment, and delivers it to the shipper. 
 The master should then be careful not to give a bill of lading till the receipt is given 
 back to him. If he does, he will render himself doublv liable. Bcawcs, Lex ilercatoria, 
 p. 127 ; Abbott on Shipping, 346 ; Craven v. Ryder, 6 Taunt. 433 ; Bryans v. Nix, 4 M. 
 & W. 775 ; Evans v. Nichol, 3 Man. & G. 614 ; Thompson r. Small, 1 C. B. 328; ' 
 Gosling r. Bu-nie, 7 Bing. 339 ; Ruck v. Hatfield, 5 B. & Aid. 632 ; Hawes i-. Watson, 
 
 2 B. & C. 540 ; Jones v. Bradner, 10 Barb. 193 ; Merc. Mut. Ins. Co. v. Chase, ^> 
 E. D. Smith, 115 ; Keyser v. Harbeck, 3 Duer, 373. ^ 
 
 2 Pothier on Maritime Contracts, Cushing's Trans, p. 11, § 16 ; Beawes, L&s Mer- 
 catoria, 146. 
 
 3 Bryans v. Nix, 4 M. & "W. 775. In New York, a bill of lading, given for goods 
 to be transported by a canal, is called a commercial instrument. Dows v. Greene, 16 
 Barb. 72. See also. Grove v. Brien, 8 How. 429. 
 
 * O'Brien i'. Gilchrist, 34 Maine, 554 ; "Wolfe v. Myers, 3 Sandf. 7 ; "Ward r. "Whit- 
 ney, 3 Sandf. 399 ; Knox v. The Ninetta, Crabbe, 534 ; May v. Babcock, 4 Ohio, 334 ; 
 "Wayland i\ Mosely, 5 Ala. 430; Dickerson r. Seelye, 12 Barb. 99. Because the bill 
 of lading must be signed by the master or by some one authorized by him, and must 
 state by whom the goods are shipped, and where, and to whom they are to be deliv- 
 ered, the following instrument was held not to be a bill of lading : " Elmira, July 
 2, 1842, shipped on boat Occidental, H. Banks, captain, 52,900 feet white pine boards 
 and plank, to Albany." This was signed by the agent of the consignor, and delivered 
 to the captain. Covill v. HiU, 4 Denio, 323.
 
 CH. VII.] BILL OF LADING. 135 
 
 great force, and therefore should not be signed and delivered un- 
 til the goods are actually received, (and if only signed^ but not 
 delivered, it has no force,) ^ nor should it contain any statements 
 but those which are exactly accurate. If it be signed before the 
 goods are received on board, or even before the shipper owns 
 them or has bargained for them, it might nevertheless apply, as 
 between the master and the shipper, to any goods shipped after- 
 
 ^.^^^ wards as and for those which are named in the bill of lading. 
 
 / NBut, in general, as the master has no authority to sign a bill of 
 lading until the goods are received, such a bill would not bind 
 his owners.2 
 pv. I Although the ship-owner may show that the goods were in- 
 jiired or destroyed on the passage by reason of some intrinsic 
 defect which was not apparent or easily to be ascertained when 
 he goods were shipped, yet the bill is prima facie evidence that 
 ey were at that time in the condition in which they are de- 
 scribed as being in the bill itself.-^ If the ship-owner defends 
 
 Buffincrton r. Curtis, 15 Mass. 528 ; Allen v. Williams, 12 Pick. 297. But in the 
 ca^ of The Pevtona, 2 Curtis, C. C. 21, it has been held that an agreement for a bill 
 of I^dinir might bind the master, although none were signed or delivered. 
 
 - In Rowley v. Bigelow, 12 Pick. 307, Shaw, C. J., said : "The bill of lading ac- 
 knowledges the goods to be on board, and regularly, the goods ought to be on board 
 before the bill of lading is signed. But if, through inadvertence or otherwise, the bill 
 of lading is signed before the goods are on board, upon the faith and assurance that 
 they arc at hand, as if they are received on the wharf ready to be shipped, or in the 
 ship-owner's warehouse, or in the shipper's own warehouse, at hand and ready, and 
 afterwards they are placed on board, as and for the goods embraced in the bill of lading, 
 we think, as against tJie shipper and master, the bill of lading will operate on these goods 
 by way of relation and by estoppel." The controi-ersy in this case arose between the 
 er owners of some corn, which was obtained from them by fraud, and the bond fide 
 ees of a bill of lading given to the person thus obtaining the corn, and by him 
 sent to the defendants. But the question arises whether if a captain sign bills of lading 
 before the goods are on board, or delivered to some one authorized to receive them, 
 and they are never shipped, the owners of the vessel are estopped from showing this 
 fact in a suit brougla against them for non-delivery by bond Jide indorsees of the bill 
 of lading. It is clear that they are not. It is a fraud on the part of the master to 
 sign the bills before the goods are on board, and an act not within the scope of his 
 authority as master. And the owners therefore are not liable. Lickbarrow r. Mason, 
 2 T. R. 63, 75, per Duller, J. ; Grant v. Norway, 10 C. B. 665, 2 Eng. L. & Eq. 
 337 ; Hubbersty r. Ward, 8 Exch. 330, 18 Eng. L. & Eq. 551. See also, Coleman 
 V. Riches, 16 C. B. 104, 29 Eng. L. & Ecj. 323. Nor, in such a Ciise, is the vessel 
 liable in rem. Sch. Freeman v. Buckingham, 18 How. 182. 
 
 8 In Hastings i-. Pepper, 11 Pick. 41, an action was brought against the master of a 
 vessel, to recover the value of a glass bottle containing twenty pounds of oil of cloves.
 
 136 ON THE LAAV OF SHIPPING. [bOOK I. 
 
 against the claim of the shipj3er on the ground of intrinsic 
 defect, he might doubtless discharge himself by proof of such 
 defect, whether apparent or not, unless the contract were one 
 which amounted to or implied warranty to carry the goods and 
 take the risk of that defect.^ But if the claim were made by a 
 
 The receipt of the box, containing the bottle, on board the vessel was acknowledged, 
 but the defendant contended that the breaking of the bottle was owing to its being 
 InsuiEciently packed, and that the bottle itself was imperfect, and not well annealed. 
 Shaw, C. J., said : "It may be taken to be perfectly well established, that the signing 
 of a bill of lading acknowledging to have received the goods in question, in good 
 order and well conditioned, is prima facie evidence, that, as to all circumstances which 
 were open to inspection and \asible, the goods were in good order ; but it does not pre- 
 clude the carrier from showing, in case of loss or damage, that the loss proceeded from 
 some cause which existed, but was not apparent, when he received the goods, and 
 which, if shown satisfactorily, will discharge the carrier from liability. But in case of 
 such loss or damage, the presumption of law is, that it was occasioned by the act or 
 default of the carrier, and of course the burden of proof is upon him to show that it 
 arose from a cause existing before his receipt of the goods for carriage, and for which 
 he is not responsible." See also, Clark v. Barnwell, 12 How. 272; Cariss i\ Johns- 
 ton, Ang. on Carriers, § 21.3, n. ; Barrett v. Rogers, 7 Mass. 297 ; Mcintosh v. Gasten- 
 hofer, 2 Rob. La. 403; Price v. Ship Uriel, 10 La. Ann. 413; Bissel v. Price, 16 111. 
 408. In Ellis v. Willard, 5 Seld. 529, it was held that the statement in the bill of lad- 
 ing, that the goods were received in good order, would not prevent the cari-ier fi"ora 
 showing that this was incon-ect, and that it made no difference whether the goods were 
 open to inspection or not. 
 
 1 Guidon, ch. 7, art. 7, 10 ; Clark v. Barnwell, 12 How. 272 ; The Ship Howard v. 
 Wissman, 18 How. 231 ; Mcintosh v. Gastenhofer, 2 Rob. La. 403 ; Bissel v. Price, 
 16 111. 408. In Clark r. Barnwell, a quantity of cotton thread was shipped at Liver- 
 pool, under a common bill of lading for a voyage to Charleston, S. C. On its arrival, 
 the thread was found to be stained and spotted by dampness and mould caused by the 
 humidity of the atmosphere of the hold, in a long passage, and by the transition from 
 a colder to a warmer climate. The court held that damage caused by humidity, in 
 the absence of any defect in the ship, or navigation of the same, or in the stowage, was 
 a peril of tlie sea, for which the carrier was not liable. They said : " For it has been 
 held, if the damage has proceeded from an intrinsic principle of decay naturally in- 
 herent in the commodity itself, whether active in every situation, or only in the con- 
 finement and closeness of the ship, the merchant must bear the loss, as well as pay the 
 freight." In Lamb v. Parkman, U. S. Dist. Ct., Mass., 20 Law Reporter, 186, an action 
 was brought on a charter-party for freight. The defence was set up that the goods 
 were damaged by sweat. The vessel came from Calcutta, and the dam-age was caused 
 by the condensation of vapor in the hold by the transition from a warm to a cold cli- 
 mate, producing moisture directly under the upper deck, whereby the upper part of the 
 cargo was injured. Mr. Justice Sprague held, that, as the goods were stowed in the 
 usual manner, the ship-owners were not responsible for the damage, and freight was 
 therefore due. 
 
 If a cargo of hides is liable to perish from worms, and tlie heat of the vessel, at an 
 intermediate port, it is the duty of the master to preserve them by having them beaten 
 or ventilated. The Bark Gentleman, Olcott, Adm. 110. This case was reversed on
 
 CH. YII.] BILL OF LADING. 137 
 
 purchaser of the goods and indorsee of the bill, who bought on 
 the faith and evidence of the bill, then it should seem that the 
 ship-owner should not be able to defend himself by showing a 
 defect which was actually known, or which was of such a nature 
 that it might easily have been discovered when the bill was 
 signed.! Between the ship-owner and the shipper of the goods, 
 the bill is certainly not conclusive; but if it has altered the situ- 
 ation of parties relying on its truth, so that either an innocent 
 party must suffer, or else the ship-owner, whose agent signed the 
 bill, either fraudulently or heedlessly, it is he, and not the inno- 
 cent party, who should bear the loss.^ 
 
 The party who ships the goods is called the consignor; and he 
 to whom the goods are to be delivered by the terms of the bill 
 
 appeal, 1 Blatcbf. C. C. 196, but the law on this point was not controverted. See also, 
 Soule V. Eodocanachi, 1 Ncwb. Adm. 504. 
 
 1 See next note. 
 
 2 Abbott, in his treatise on Sliipping, p. 324, says that Iwtwecn the shipper and the 
 ship-owner a bill of lading is not conclusive, citing Bates r. Todd, 1 Moody & R. 106, 
 and Berkley v. Watling, 7 A. & E. 29. In the first of these cases, the captain had 
 been induced, through the fraud of the plaintiff's agent, to sign the bill of lading for 
 eight hundred and ninety bags of pepper, whereas the defendants claimed that only 
 seven hundred and ninety had been in fact shipped. The court held that it was a ques- 
 tion of fact for the jury, what number had actually been put on board. In Berkley v. 
 Watling, the action was brought against two owne:-s of a vessel, one of whom had 
 shipped the goods in question to the plaintiff. The court held that the other owner 
 was not estopped by the bill of lading from showing that the goods were never put on 
 l)oard, l)ecause the law presumed that the plaintiff wsis aware of the fact, it being 
 known to his agent. In Wolfe v. Myers, .3 Sandf. 7, OakJeij, C. J., said : " Ordinarily, 
 a bill of lading partakes of a twofold character. It is both a receipt and a contract. 
 It is a receipt as to the numl)er of bushels, or the quantity of the article put on board 
 the vessel, and it is a contract to deliver the same at a certain place and to a certain 
 party. As far as it is a receipt, it is no doubt open to explanation between the parties 
 to it. The party giving it may prove that he was mistaken in the quantity of goods 
 delivered to him. But in its character of a contract, it cannot be altered or explained 
 by parol." See also, Ward v. Whitney, 3 Sandf. 399 ; Dickerson v. Seelye, 12 Barb. 
 99. In this case, Edmonds, J., in delivering the opinion of the court, said : " As 
 between the shipper of the goods and th& owner of the vessel, a Iiill of lading may be 
 explained so far as it is a receipt, that is, as to the quantity of the goods shipped, but 
 as between the owner of the vessel and an assignee for a valuable consideration, paid 
 on the strength of the bill of lading, it may not be explained." See also, O'Brien r. 
 Gilchrist, 34 Maine, 554; Knox v. The Ninctta, Crabbe, 534; Benjamin v. Sinclair, 
 1 Bailey, 174 ; Backus r. The Sch. Marengo, 6 McLean, C. C. 487 ; Wayland v. Moscly, 
 5 Ala. 430 ; May v. Babcock, 4 Ohio, 334 ; Sutton v. Kettell, U. S. Dist. Ct., Mass., 
 18 Law Reporter, 550, The Henry, 1 Bl. & Howl. Adm. 465, 485; Bissel v. Price, 16 
 111. 408 ; Butler v. The Arrow, 1 Newb. Adm. 59. 
 
 12*
 
 138 ON THE LAW OF SHIPPING. [BOOK I. 
 
 is the consignee. The shipper himself is sometimes consignee 
 as well as consigner; that is, the goods are deliverable to him 
 or to his assigns. And if no person is named as consignee, 
 (which is, however, unusual,) then the law-merchant, or usage, 
 inserts the name of the consignor, and gives to the bill the same 
 effect as if he were the consignee.^ 
 
 The bill of lading is often called a negotiable instrument;^ 
 but it is not so, quite to the extent of a note payable to order, 
 and it is called in later cases, more accurately, perhaps, quasi 
 negotiable. It will be noticed that the word " assigns " is used, 
 and not the word "order;" but although at common law the 
 mere use of the word " assigns " would not make a chose in 
 action transferable, the law-merchant makes a bill of lading so 
 far transferable by indorsement that an indorsee may sustain an 
 action against the owner or master, founded on his ownership of 
 the goods, such indorsement, with delivery, being prima facie evi- 
 dence of the transfer of the goods to him.^ But he cannot, gen- 
 
 1 In Chandler v. Sprague, 5 Met. 306, A. of Brazil was indebted to P. H. & Co. of 
 New York. At their request, and to pay his debt to them, he shipped goods to this 
 country, on his own account and risk, under bills of lading, making the goods deliv- 
 erable to his own order, and indorsed by him in blank. The bills of lading were sent 
 to H. & Co. of New York, successors to P. H. & Co., with authority to make the goods 
 thereby deliverable to themselves, or such persons as they might name, with authority 
 to sell the goods, and to apply the proceeds to the payment of their own debt. On the 
 arrival of the goods, H. & Co. filled up the bills of lading, making the goods delivera- 
 ble to the plaintiffs, who were to sell them and account for the proceeds to P. H. & Co. 
 The plaintiffs received the goods, and afterwards they were attached by the defendant, 
 a deputy sheriff, as the property of P. H. & Co. The court decided in favor of the 
 plaintiffs. They said : " In the first place, wo are of opinion that no property in these 
 goods vested in P. H. & Co. Had thej' filled up the blank in the bill of lading, as 
 they had authority to do, so as to make the goods deliverable to themselves, and ac- 
 cepted the consignment, the property would have vested in them as consignees liable 
 to account to the consignor." The court also said, that, although A., the consignor, 
 v\'as not in strictness the consignee, yet he had a right to direct the delivery of the 
 propei-ty in any way he might think fit, and by sending the invoice and bills of lading 
 to H. & Co., and authorizing them to name the consignee, and by their naming the 
 plaintiffs the property thereby vested in them. See also, Turner v. Trustees of The 
 Liverpool Docks, 6 Exch. 543, 6 Eng. L. & Eq. 507 ; Ellershaw v. IMagniac, 6 Exch. 
 570, n.; Wait v. Baker, 2 Exch. 1 ; Van Casteel v. Booker, 2 Exch. 691 ; Key v. 
 Cotesworth, 7 Exch. 595, 14 Eng. L. & Eq. 435; Brown v. North, 8 Exch. 1, 16 Eng. 
 L. & Eq. 486. 
 
 2 Evans v. Marlett, 1 Ld. Eaym. 271 ; Lickbarrow v. Mason, 2 T. E. 63, 1 H. BI. 
 357, 6 East, 21, n. ; Wright u. Campbell, 4 Burr. 2046; Hibbert v. Carter, 1 T. R. 
 745 ; Jenkyns v. Usborne, 7 Man. & G. 678, 698. 
 
 3 If the action is brought upon the bill of lading, it must be in the name of the
 
 CII. YII.] BILL OF LADIXG. 139 
 
 erally, sue nn the hill of lading in his own name. It is said that 
 even if the word assigns be omitted, an order written and signed 
 by the consignee on the back of the bill, with delivery of it, binds 
 the ship to the 'delivery of the goods to the indorsee.^ 
 
 Undoubtedly, an indorsement and delivery of the bill of lad- 
 ing is binding only when it is made for good consideration, and 
 by a party having the right to indorse ; and we add, for a new 
 consideration. For we hold the law to be, that an indorsement 
 of the bill, in payment or security of the previously existing debt 
 of the consignee, is no bar against the consignor's right to stop the 
 goods in transitu, unless the indorsee has in some way lost some 
 valuable right or remedy by accepting this payment or security, 
 which would, indeed, amount to a new consideration. And we 
 should be disposed to extend this rule further, and say that an 
 indorsee only for such payment or security of a previous debt, 
 would, like an indorsee for no consideration, be unable to recover 
 the goods as against one who, for good consideration, and in 
 good faith, subsequently acquired a title to the goods and pos- 
 session of them, either as transferree, or as attaching creditor.^ 
 
 original promisee. Thompson v. Dominy, 14 M. & W. 402. In Howard v. Shepherd, 
 9 C. B. 297, .319, Maule, J., said : "Now it is perfectly clear, that a contract cannot be 
 transferred, so as to enable the transferree to sue upon it." See also, Sanders u. Van- 
 zeller, 4 Q. B. 260, 295 ; Tindal v. Taylor, 4 Ellis & B. 219, 28 Eng. L. & Eq. 210, 
 216; Dows v. Cobb, 12 Barb. 310; Lineker v. Ayeshford, 1 Cal. 75. The assignee 
 may, perhaps, sue in admiralty in his own name, for in Howard v. Cobb, 19 Law 
 Reporter, 377, Mr. Justice Nelson says : " It is every day's practice in admiralty to 
 allow suits to be brought in the name of the assignee of a chose in action." See 
 also. Mutual Safety Ins. Co. v. The Cargo of The Brig George, Olcott, Adm. 89 ; 
 The Sch. Mary Ann Guest, id. 498. But even if the assignee cannot maintain an 
 action on the contract, yet if the right of property and of possession be in him, he can 
 sue the master for detaining or converting the goods, and the latter would be estopped 
 from denying that he had them after the declaration in the bill of lading, on the faith 
 of which the indorsee had bought and paid for them. Tindal v. Taylor, supra. 
 
 1 So held at Nisi Prius, by Lord Tenterden, C. J., llenteria r. Ruding, Moodv & 
 M. 511. 
 
 ■^ In Newsom v. Thornton, 6 Eiist, 17, the plaintiffs consigned certain barrels of 
 pork to one Church, their factor in London, on the joint account of tliemselves and 
 Church. By the bills of lading, the pork was deliverable to Church or his assigns. 
 Previous to the arrival of the pork, Church obtained a loan of .£200 from the defend- 
 ants, and agreed with them, in consideration of a further advance, to leave with them 
 an order on his clerk, as he himself was about leaving for Ireland, to indorse and de- 
 liver to them the l)ill of lading for the pork when it arrived. After his departure, the 
 defendants contrived to obtain from the clerk the bill of lading indorsed to them, with- 
 out payment of the sum agreed on, and claimed to hold it as indorsees for a valuable
 
 140 ON THE LAW OF SHIPPING. [bOOK I. 
 
 An agreement, on good consideration, by a consignee to 
 assign upon receipt of the bill in an assignment, or, at least, an 
 equitable assignment of the bill of lading, valid against all sub- 
 sequent assignees with notice.^ 
 
 The property in goods for which a bill of lading is given, 
 may, of course, be legally transferred for good consideration to 
 any purchaser without indorsement and delivery of the bill ; but 
 it is not only the most usual, but by far the most proper way of 
 doing this, to indorse the bill ; unless the goods have already 
 been delivered to the consignee, so as to discharge the bill.^ 
 
 If the bill of lading itself contains a condition, or if the indorse- 
 ment be made upon a condition, the possessor of the bill caimot, 
 by means of it, claim possession of the goods, unless the condi- 
 tion is satisfied.'^ 
 
 Bills of lading are usually signed in sets of three. One is 
 held by the master; one retained by the consignor, and one sent, 
 either with the goods or by a separate conveyance, to the con- 
 
 consideration, namely, their previous advance to Church. But the court held, that, not 
 having advanced the sum agreed upon, there was no consideration, and that they could 
 not hold it for their previous deht. See also, Snaith v, Burridge, 4 Taunt. 684 ; War- 
 ner v. Man'm, 1 1 How. 209, 225. 
 
 1 Walter i\ Boss, 2 Wash. C. C. 283, 289, per Mr. Justice Washington. 
 
 ■^ If a party claims a right to the goods by reason of a bill of lading, it is necessary 
 that it should be both indorsed and delivered to him. BufBugton v. Curtis, 15 Mass. 
 528 ; Allen v. Williams, 12 Pick. 297. But where a merchant in Boston ordered mer- 
 chandise to be shipped to him from Liverpool on board a general freighting vessel, 
 designated by him for that purpose, and the goods were shipped in pursuance of those 
 orders, and a bill of lading given by which they were made deliverable to the mer- 
 chant in Boston, it was held by the court that the shipper could not, by withholding 
 the bill of lading and subsequently inclosing it and the invoice in a letter to his 
 agent, with directions to deliver it to the merchant in Boston only upon payment for 
 the mercliandise, convert the absolute delivery into a conditional one, or divest the 
 merchant of his property in the goods. The court said: " This conclusion is founded, 
 not upon the supposed specific effect of executing or delivering a bill of lading, or the 
 peculiar character supposed to be attached to a bill of lading as a quasi negotiable 
 instrument, but ujxtn the general principle of the common law, applicable to the sale 
 of personal property." Stanton v. Eager, 16 Pick. 467. In Allen v. Williams, 12 
 Pick. 297, 302, the court said: "Even a sale or pledge of the property without a 
 foi-mal bill of lading by the shipper, would operate as a good assignment of the prop- 
 erty, and the delivery of an informal or unindorsed bill of lading, or other document- 
 ary evidence of the shipper's property, would be a good symbolical delivery, so as to 
 vest the property in the plaintiffs." 
 
 3 Ban-ow v. Coles, 3 Camp. 92 ; Mitchel v. Ede, 11 A. & E. 888 ; Brandt v. Bowlby, 
 2 B. & Ad. 932 ; Walley v. Montgomery, 3 East, 585.
 
 CH. VII.] BILL OF LADING. 141 
 
 signee. If the consignor chooses to do so, he may send his copy 
 of the bill to the consignee by another conveyance. If the bill 
 contains the name of the consignee, and the bill is sent to him, 
 this completes the title of the consignee ; the goods are his, and 
 are carried at his expense and risk ; subject only to the right of 
 the consignor to stop the goods for any breach of the conditions 
 of sale before their actual arrival into the possession of the con- 
 signee.i If the consignor be himself consignee, and sends the 
 bill to a third party, who has ordered the goods, or is to receive 
 them, either indorsed to him or indorsed in blank, it is the same 
 thing as if such person were named as consignee in the bill.^ If 
 the consignor, being also consignee, sends such a bill without 
 indorsement, the party receiving it acquires no rights under it, 
 
 1 Walley v. Montgomery, 3 East, 585. In this case the consignor sent to the con- 
 signee an invoice of the goods laden on board the vessel, and also a bill of lading in 
 the usual form. By the terms of the invoice, the goods were " for account and at the 
 risk of the consignee." By the bill of lading the goods were deliverable on payment 
 of fi-eight as per charter-party. The letter of advice, also, informed the consignee that 
 the consignor had drawn bills on him at three months for the value of the cargo. In 
 an action of trover brought by the consignee against the agent of the consignor, who 
 had obtained possession of the goods under another bill of lading, Lord Ellenhorougk 
 said that but for the invoice he should be of opinion that the plaintiff was not entitled 
 to recover, because the bill of lading and the letter of advice tended to show that two 
 things were to be done by the plaintiff before the property in the goods was to vest in 
 him, first the acceptance of the bills, and second the payment of freight, and the plain- 
 tiff having offered to perform only tlie first, would not be entitled to recover but for 
 the invoice, which showed that the goods were shipped for account, and at the risk of 
 the consignee. And, generally, if the consignee's name is inserted in tlio bill of lad- 
 ing, and the bill is sent to him, the property in the goods vests in him against any 
 person except a previous assignee of the bill of lading. Allen v. Williams, 12 Pick. 
 297; Stanton v. Eager, 16 Pick. 467. 
 
 2 Haille v. Smith, 1 B. & P. 563 ; Chandler v. Sprague, 5 Met. 306, which see at 
 length, ante, p. 138, note 1 ; Van Casteel v. Booker, 2 Exch. 691 ; Ellershaw v. Magniac, 
 6 Exch. 570, n. In this case tlie plaintiff had entered into a contract with A & B for 
 the purchase of some linseed. A & B drew upon iiim for the price, and the bills of 
 exchange were accepted and duly paid by tlie plaintiff. To procm-e the linseed, he 
 entered into a contract of charter-party for the hire of a certain ship to proceed to 
 Odessa and obtain it. Tiie linseed was delivered on board. Tiie bills of lading stated 
 that it was shipped by A & B, deliverable to order or assigns. A & B afterwards 
 indorsed the bills of lading to one Pocl, who transferred them to the defendants. On 
 tliis state of facts, the court held that no property in tlic linseed had passed to the 
 plaintiff; tliat the form of the bill of lading showed that the sliippers intended to 
 preserve the riglit of property and possession in themselves, until tiiey had made an 
 assignment of the hill of lading to some other person ; and tluit, the defendants being 
 indorsees for a vahud^le consideration, the right of property was in them. See also, 
 Wait V. Baker, 2 Exch. 1.
 
 142 ON THE LAW OF SHIPPING. [bOOK I. 
 
 but only has notice by it that such goods are shipped in such a 
 vessel to such a port.^ And it is quite common for the con- 
 signor to send such a bill to the party ordering the goods, and 
 then to send to the agent of the consignor in the same port or 
 country a bill indorsed to that agent, or to the party ordering the 
 goods, or in blank, with orders to deliver the bill, or to receive 
 the goods and deliver them, if payment be made or secured, or 
 such conditions as the consignor chooses to prescribe be com- 
 plied with. This prevents all question as to the right of the con- 
 signor to retain them for the price ; although it might raise a 
 question whether the goods in this case ever were sold by the 
 consignor, and consequently, whether his holding them until the 
 price is paid or secured, could be considered as a stoppage in 
 transitu. ' 
 
 If this precaution be not taken, but the party ordering the 
 goods is made consignee in the bill which is sent to him, the 
 consignor runs the risk of his getting them into his possession, 
 or transferring them by an indorsement for good consideration 
 before the consignor can stop them in transitu. For shipping 
 goods to one who has ordered them, is, in general, a completed 
 sale, vesting the property in him, and is a constructive delivery, 
 subject only to be defeated by stoppage for the price before 
 actual delivery .2 The obligation of the master to deliver the 
 goods according to the bill of lading is so strong, that, where an 
 unindorsed bill was sent to one ordering the goods, and he ob- 
 tained possession by assuring the master that the goods were 
 sent to him, and were his own and deliverable to him, and the 
 shipper sued the ship-owner on the bill, who defended himself 
 on the ground that the party to whom the goods were delivered 
 was in fact the owner of them, and had a right to them, it was 
 admitted, both by court and counsel, that if the defendant 
 established the title and right of that party, the plaintiff must 
 still recover against him, although with only nominal damages.^ 
 
 1 Nix V. Olive, cited in Abbott on Sliipping, 538 ; Brandt v. Bowlby, 2 B. & Ad. 
 932 ; Coxe v. Harden, 4 East, 211. 
 
 - Dawes V. Peck, 8 T. R. 330; Button v. Solomonson, 3 B. & P. 582; Brown v. 
 Hodgson, 2 Camp. 36; Evans v. Marlett, 1 Ld. Raym. 271 ; Snee v. Prescot, 1 Atk. 
 245; Swain v. Shepherd, 1 Moody & R. 223; Fragano v. Long, 4 B. & C. 219; 
 Stanton i: Eager, 16 Pick. 467. 
 
 3 Brandt v. Bowlby, 2 B. & Ad. 932,
 
 CH. VII.] BILL OF LADING. 143 
 
 The bills of lading are evidence against the master or the 
 owner of the ship, not only as to the reception of the merchan- 
 dise, but as to any material fact stated in them respecting the 
 quantity, or quality, or any other element in the description of 
 the goods.-^ It is therefore usual to describe them only as so 
 many boxes, or bales, or parcels, numbered and marked as per 
 margin ; sometimes the words " contents unknown," or " said to 
 contain," etc., are added ; and if the words " containing," etc., 
 are added, which is also not unusual, the master and ship are 
 held only to deliver the boxes as they were received by them.^ 
 The evidence of the bill of lading, however, is not conclusive as 
 between the ship-owner and shipper, but may be rebutted by 
 showing mistake or frau^.'^ It is not usual for the right of lien 
 on the goods for the freight to be expressly reserved by the 
 owner; but whether it is so or not, the law-merchant gives this 
 lien.^ The master is bound to deliver, and the shipper is bound 
 to pay ; nor can the master demand his freight, without being 
 ready to deliver the goods on payment of it, nor can the shipper 
 demand his goods without a tender of the freight.^ But al- 
 
 1 In Hall V. The Ship Chieftain, 9 La. 318, a quantity of iron was shipped on boanl 
 a vessel. The bill of lading contained the usual clause stating it to have been re- 
 ceived in good order and condition. On delivery, the iron was found to be much 
 rusted. It was held that a paper written and signed by the shippers, and sent to the 
 captain of the vessel, stating that the iron was rusty when shipped, would control the 
 statement in the bill of lading, and exonerate the carriers from their liabilities. See 
 also, cas^ cited ante, p. 135, n. 2, and p. 137, n. 2. 
 
 ^ In Clark v. Barnwell, 12 How. 272, the bill of lading contained the usual clause 
 that the boxes containing the goods were shipped in good order, "contents unknown." 
 The court said : "It is obvious, therefore, that the acknowledgment of the master as to 
 the condition of the goods when received on board extended only to the external con- 
 dition of the cases, excluding any implication as to the quantity or quality of the arti- 
 cle, condition of it at the time received on board, or whether properly packed or not in 
 the boxes." See also, Vernard v. Hudson, 3 Sumner, 405 ; Valin, Com. sur I'Ord. de 
 la Mar. Liv. 3, tit. 2, art. 2. But even if the bill of lading does not contain these 
 words, evidence is admissible to show that the goods were damaged at the time they 
 were received by the carrier, though such damage was not apparent. Bissel v. Price, 
 16 111. 408; Tile Colombo, U. S. C. C. New York, 19 Law Reporter, 376 ; Ellis v. 
 Willard, 5 Seld. 529. 
 
 3 Sec cases cited ante, p. 137, note 2. 
 
 * See cases ante, p. 125, n. 1. 
 
 5 The usual clause in the bill of lading, that the goods are to be delivered on pay- 
 ment of freight, shows that these two acts arc concurrent, and that neither party can 
 sue on the contract without an offer to perform his part of it. Thus in Lane v. I'enni- 
 man, 4 Mass. 91, Parsons, C. J., says : "Although the master nuiy retain the cargo
 
 144 ON THE LAW OF SHIPPING. [bOOK I. 
 
 though the law gives this lien, though it be not expressly reserved, 
 yet it does not give it where it is expressly waived, or where it 
 is waived by implication and necessary construction. As the 
 right of lien, at common law, means precisely the right of re- 
 taining or continuing possession until the price is paid, if the 
 bargain be that freight shall be paid in so many days after 
 arrival and delivery of the goods, this is held to mean that 
 that the goods are to be delivered first, and at a future day the 
 freight is to be paid ; and this, of course, is destructive of the 
 idea of a continued possession by the master or owner of the 
 ship, and consequently of his lien. So the courts of law have 
 generally held.^ We think, however, that the influence of the 
 'A 
 
 until the freight be paid or tendered, yet he must be ready to deliver the cargo on pay- 
 ment or tender. See also, Palmer v. Lorillard, 16 Johns. 348; Frothingham v. Jen- 
 kins, 1 Cal. 42 ; Isham v. Greenham, 1 Handy, 357 ; Certain Logs of Mahogany, 2 
 Sumner, 589. See also, Moller v. Young, 5 Ellis & B. 755, 34 Eng. L. & Eq. 92, re- 
 versing the same case in the Queen's Bench, 5 Ellis & B. 7, 30 Eng. L. & Eq. 345. 
 
 1 The law seems now to be well settled, that, where the time and place of the pay- 
 ment of the freight are inconsistent with the right of lien, it will be considered as 
 waived. What will be regarded as such an inconsistency, is said by Chanceller Kent 
 to be, "When the payment of the freight is, by agreement, postponed beyond the time, 
 or is at variance with the time and place for the delivery of the goods." 3 Kent, 221. 
 In The Schooner Volunteer, 1 Sumner, 551, 569, Stoi-y, C. J., said: "If the deliv- 
 ery of the goods is, by the charter-party, to precede the payment, or security of pay- 
 ment of freight," there will be no lien. In Chandler v. Belden, 18 Johns. 157, 162, it 
 was held not to exist when the cargo was to be delivered before the arrival of the 
 periods of payment. It was so held also in Alsager v. The St. Katherine's Dock Co. 
 14 M. & W. 794, where freight was to be paid two months after delivciy. Tkis subject 
 has recently undergone an elaborate investigation by the Supreme Court of the United 
 States in the case of Eaymond v. Tyson, 1 7 How. 53. The suit was brought by a 
 libel in admiralty in the District Court of the United States for the Northern District 
 of California. The case was then taken to the circuit, and thence to the supreme 
 court. The vessel was chartered for a voyage from London to Cardiff, to load for a 
 port on the Pacific, where she was to be employed between such ports as the charterers 
 might elect ; thence to be returned back, either to New York or Great Britain, at their 
 option. The vessel was to be employed for fifteen months, with a privilege to the 
 charterer to extend it to twenty-four months. Two thousand dollars per month was to 
 be paid for the use of the vessel. This payment was to be made semiannually in 
 New York. The court held, that, under these circumstances, the ship-owners had no 
 lien on the cargo for the freight, or for the sum agreed to be paid for the use of the 
 ship. The court said : " The next rule for the construction of charter-parties, deduced 
 by us from an examination of all the leading cases in the English and American 
 reports, including those cited in the argument of the counsel of the appellee, is this : 
 that though the owner of a ship, of which the charterer is not the lessee, but 
 freighter only, has a lien upon the cargo for freight, properly so called, and also for a 
 sum agreed to be paid for the use and hire of the ship, his lien may be considered as
 
 en. VII.] BILL OF LADING. 145 
 
 common law on the privilege of the ship-owner against the 
 cargo, for his freight, has essentially modified, and not improved, 
 the principles of the law-merchant in this respect. These prin- 
 ciples would not hold such a bargain as necessarily inconsistent 
 with this lien, or rather this security; for the substantial mean- 
 ing of the lien is, that the ship-owner looks to the goods as 
 security for the freight earned by carrying them ; and if the 
 goods are held to secure the payment of the freight at a certain 
 time, and are delivered to the consignee with that understand- 
 ing, we do not see why it should be inconsistent with the law 
 of lien, that the ship-owner has still a security on the goods 
 for his freight, until a bond fide sale is made of them. We 
 think the question should always be, whether the ship-owner 
 intended to give up that security for his freight, which he had 
 by his contract upon the goods ; if he did, the court will not 
 revive his lien ; if he did not, the court should in some way, if 
 in its power, give him that security without violating the terms 
 of the agreement; that is, without requiring immediate pay- 
 ment of freight, if a delay of payment has been agreed upon.^ 
 
 having been waived, without words to that effect, if there are stipulations in the charter- 
 party inconsistent with the exercise of the lien, or when it can fairly be inferred that 
 the owner meant to trust to the personal responsibility of tiie charterer." In the case 
 of The Schooner Volunteer, supra, it was held that a stipulation that freight should be 
 paid ten daj-s after the return of the ship was not necessarily inconsistent with the 
 right of lien. See also, Certain Ixigs of Mahogany, 2 Sumner, 589 ; IJuggles v. 
 Bucknor, 1 Paine, C. C. 358; Cowell v. Simpson, 16 Ves. 273; Chase v. Wcstmore, 
 5 M. & S. 180 ; Crawshay v. Homfray, 4 B. & Aid. 50; Pinney v. Wells, 10 Conn. 
 104, 115; Pickman v. Woods, G Pick. 248; Belcher v. Capper, 4 Man. & G. 502; 
 Lucas V. Nockells, 4 Bing. 729 ; Ilorncastle v. Farran, 3 B. & Aid. 497. In Ham- 
 mond V. WCiic, Q. B. 1855, 32 Eng. L. & Eq. 210, it was held that an agreement, con- 
 cerning a cargo of lead, that it should be weighed as landeil, to ascertain when five 
 tons had been discharged, and freight was to be then paid for each five tons as weighed, 
 would give the master no right, after a portion of the lead was on the wharf to cart it 
 away to his own warehouse, on the ground that he had a lien on it for the freight. 
 
 1 We considered somewhat at length, on page 125, the nature of the ship-owner's lien 
 on freight, and saw that the tendency of both the common law and admiralty courts 
 was to treat the lien as a common law lien depending entirely on pos.session. In a late 
 case before Mr. Justice Spraj/ue, decided since our former consideration of this (piestiou 
 was in jjress, the (luestion came u)) whether the lien was lost by delivery of the goods, 
 it being contended that as the lien was maritime, it did not in any degree de])cnd on 
 possession ; but the learned judge held, that, although the lien for freight was a maritime 
 lien, yet the shipowner could not proceed against the goods in rem after the master had 
 delivered them, although they had not been sold. Sears v. Certain Bags of Linseed, 
 VOL. I. 13
 
 146 ON THE LAW OF SHIPPING. [BOOK I. 
 
 What is the meaning of the contract in this respect should 
 always be determined by the words and circumstances of each 
 case.^ An admiralty court would have full equity powers, 
 
 U. S. D. C. Mass., 1858. An appeal ivas taken, and the case argued before Mr. Justice 
 Clifford, in June, 1858, but it is not yet decided. This case suggests to us what may 
 be the true way of reconciling the decisions with the unquestioned principle that the 
 lien of the ship on the goods should be reciprocal with that of the goods on the ship. 
 The lien on the goods may be a maritime lien and yet be lost by delivery. Even the 
 most favored lien, that of a seaman for his wages, is lost by a delay to enforce it ; and 
 a lien may be waived as we have seen in the preceding note ; and it may well be a 
 presumption of law that the act of the master in delivering up the goods is to be con- 
 sidered as a waiver of his lien. But if it be a maritime lien, wliich it certainly is m 
 our judgment, we should say that if tlie circumstances attending the delivery were such 
 as to show no intent on the part of the master to relinquish his lien, he should still 
 have it, though the burden would be on him to show this fiict. 
 
 The Supreme Court of the United States have, in an indirect manner, considered 
 the lien on the goods as maritime. In Cutler v. Kae, 7 How. 729, they lield that they 
 had no jurisdiction in personam in general average, on the ground that the lien of the 
 ship on the goods was a common law lien, and that they had no jurisdiction in personam 
 except where they had a maritime lien. In New Jersey Steam Nav. Co. v. Merchants 
 Bank, 6 How. 344, they held that they had jurisdiction in contracts of affreightment as 
 well in personam as in rem. It would therefore follow that the lien is maritime, al- 
 though the decision did not proceed on this ground. 
 
 The true nature of a maritime lien was ably set forth in Harmer v. Bell, 7 Moore, 
 P. C; 267, 22 Eng. L. & Eq. 62, and although the language used by the court is not 
 altogether applicable to the case where the party claiming the lien has relinquished the 
 possession of the rem, still we will state the case and cite a portion of the decision of 
 the court as it sets forth the general doctrine of maritime liens in an admirable and 
 lucid manner. The suit was in rem for damages done by a collision. The court 
 said : " A maritime lien does not include or require possession. The word is used in 
 maritime law, not in the strict legal sense in which we understand it in courts of com- 
 mon law, in which case there could be no lien, where there was no possession, actual or 
 constructive ; but to express, as if by analogy, the nature of claims which neither pre- 
 suppose nor originate in possessions A maritime lien is the foundation of the 
 
 proceeding in rem, a process to make perfect a right inchoate from the moment the lieu 
 attaches ; and whilst it must be admitted that where such a lien exists, a proceeding 
 i)i rem may be had, it will be found to be equally true, that in all cases where the pro- 
 ceeding in rem is the proper course, there a maritime lien exists, which gives a privi- 
 lege or claim upon the thing, to be carried into effect by legal process." See also, The 
 Betsey & Ehoda, Daveis, 112, and articles on the "Peculiarities of Maritime Liens," 
 15 Law Eeporter, 555, London Law Magazine, Nov. 1S52; 16 Law Keporter, 1, Lon- 
 don Law Magazine, Feb. 1853, Vol. XVIII. n. s. 143. 
 
 1 In Buggies i'. Bucknor, 1 Paine, C. C. 358, Mr. Justice Thompson says: "Each 
 case must depend in a great measure upon its own circumstances. Parties are not 
 bound to any fixed and precise stipulations to bq embraced in a charter-party. They 
 can insert any covenants they please, to answer the end and effect the object they have 
 in view." See also, Gracie v. Palmer, 8 "Wheat. 605, 634; Raymond v. Tyson, 17 
 How. 53. And in a doubtful case the law will lean towards that construction which
 
 en. VII.] BILL OF LADING. 147 
 
 and its own process in rem, in a case involving questions of 
 this kind; and would doubtless pay some regard to the princi- 
 ples of maritime law. We shall recur to this question again in 
 our chapter on the law of admiralty. It has been held that the 
 parties may agree that the lien shall continue, notwithstanding 
 delivery. And the lien is not lost if the master is induced to sur- 
 render the possession of the goods by fra.ud or trick, and replevin 
 may be maintained. ^ And if the goods are in the possession of 
 the master, and are replevied, the lien is not waived by suing 
 the owners of the goods and attaching other property.^ 
 
 It may be added, that a third person, wrongfully in possession 
 of goods, cannot detain them from the consignee or actual 
 owner, on the ground that he has not paid the freight due upon 
 them.^ The bill of lading may contain, besides the usual con- 
 tract for the transportation of the goods, stipulations in regard 
 io the disposal of them or their proceeds.^ 
 
 favors the right of lien. Thus Mr. Justice Ware, in Drinkwatcr ik The Brig Spartan, 
 Ware, 149, 158, speaks of it as a lien strongly favored by the law. Mr. Justice Story 
 also, in Certain Logs of Mahogany, 2 Sumner, 589, says it ought not to he displaced 
 without a clear and determinate abandonment of it. See also, Clarkson v. Edes, 4 Cow. 
 470. In Howard v. Macondray, Sup. Jud. Ct. Mass., Nov. T. 1856, the vessel was 
 chartere<l for fifteen months with privilege to the charterers to continue the time to 
 thirty months, sX the rate of two thousand dollars a month to be paid to the owners, in 
 New York, semiannually, the balance of the chai-ter to be paid on the discharge of the 
 cai'go at the final port of delivery. The first payment was duly made, but iK'fore the 
 second was due the charterers foiled, and it was agreed to cancel the charter-party on 
 payment of a draft drawn upon the agent of the charterers in San Francisco. The 
 draft was protested, but tlic court were of the opinion on all the focts in the case that 
 it was the intention of the parties to cancel the charter-party at all events, and that the 
 owner had a lien on the goods transported at San Francisco, which was considered 
 under the new agreement as the final port of delivery. 
 
 1 Bigclow V. Ilcaton, 6 Hill, 43, 4 Denio, 496. It was, however, expressly held, in 
 this case, that the intention of the master in parting with the goods was not to l>c con- 
 sidered, unless there was an express agreement that the lien should continue. 
 
 2 Barnard v. Wheeler, 24 Maine, 412. 
 8 Walley v. Mqntgomcry, 3 East, 585. 
 
 * In Wallis v. Cook, 10 Mass. 510, it was agreed in the bill of lading that the net 
 proceeds of the goods phij)pcd, after deducting commissions and freight, shonhl be paid 
 to the shipper ninety days after the arrival of the vessel at her port of discharge in the 
 United States. On the return voyage the ship, lx)und to New York, was stranded in 
 lyong Island Sound, and the cargo damaged and abandoned to the underwriters, hut 
 the siiip was afterwards got off and repaired. The adventure of the i)laintifts was in- 
 sured for the round voyage. No cft'ects were shipped on board the vessel on her return 
 voyage on account of the jikintiffs, but the defendant had invested the proceeds of the
 
 148 ON THE LAW OF SHIPPING. [BOOK I. 
 
 It is often said that the contract for freight is an entire con- 
 tract.^ It is so in many respects ; but the rule is not without 
 some exceptions and modifications. This rule of entirety oper- 
 ates, first, on the quantity of the goods, no freight being payable 
 unless all are delivered i^ next, upon the completion of the voy- 
 age, the general rule being that no freight is payable unless the 
 whole voyage is performed.^ 
 
 outward adventure in the cargo on his own account. The court held that the contract 
 was in effect a loan on the personal responsibility of the defendant and liis principals, 
 to be repaid if the ship arrived at her port of discharge, and that, as slie miglit, after 
 being repaired, have gone there, the defendant was liable. See also, Winchester v. 
 Patterson, 17 Mass. 62. 
 
 In Steamboat John Owen v. Johnson, 2 Ohio State, 142, where there was a stipula- 
 tion in the bill of lading to deliver the goods to the consignee on payment of a certain 
 sum to the clerk of the boat for the consignor, and the goods w'ere delivered without 
 payiiient, it was held tiiat the boat was liable. 
 
 In Jones v. Hoyt, 23 Conn. 157, the bill of lading contained a stipulation that the 
 lumber on board should be measured on the deck of the vessel on arrival at the port of 
 destination, by the consignee and master, and freight should be paid according to such 
 measurement. On arrival, the consignee having died, no person appeared to assist the 
 captain in measuring the lumber, and it was accordingly put on the wharf and meas- 
 ured. Held, that the measuring on deck was not a condition precedent, and that the 
 owner of the vessel, having substantially complied with the stipulations in the bill of 
 lading, was entitled to freight. 
 
 1 The Nathaniel Hooper, 3 Sumner, 542 ; Post v. Eobertson, 1 Johns. 24, per 
 Thompson, J. ; Halwerson v. Cole, 1 Speers, 321 ; Adams v. Haught, 14 Texas, 243. 
 
 2 See post, p. 149, n. 4. 
 
 3 In The Nathaniel Hooper, 3 Sumner, 542, 554, Mr. Justice Storj/ said : " The 
 general principle of the maritime law certainly is that the contract for the conveyance 
 of merchandise on a voyage is, in its nature, an entire contract, and unless it be com- 
 pletely performed by the delivery of the goods at the place of destination, no freight 
 whatsoever is due ; for a partial conveyance is not within the terms or the intent of the 
 contract, and unless it be completely performed by the delivery of the goods at the 
 place of destination, no freight whatsoever is due, and the merchant may well saj' non in 
 Jiac /(vdera veni." Lord EUenhorough also, in Hunter v. Prinsep, 10 East, 378, 394, 
 states the rule with great accuracy. He says: "The ship-owners undertake that they 
 will carry tlie 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, namel}-, of their delivery at the place of destination, that he, the 
 freighter, engages to pay any thing. If the ship be disabled from completing her voy- 
 age, the ship-owner may still entitle himself to the whole freight, by forwarding the 
 goods by ^ome 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 ship-owner will not foi'- 
 ward them, the freighter is entitled to them without paying any thing. One party, 
 therefore, if he forward them, or be prevented, or discharged from so doing, is entitled
 
 CH. VII.] -DELIVERY OF THE GOODS. 149 
 
 SECTION III. 
 
 OF THE DELIVERY OF THE GOODS. 
 
 If freight is payable by the ton, or bale, or package, or barrel, 
 severally, or where different parts of the cargo are shipped upon 
 distinct and separate terms as to freight, the consignee must 
 pay for what is delivered.^ If an entire freight is payable 
 for an entire cargo, and a part is delivered and accepted, the 
 freight of that part must be paid.^ But the consignee may 
 refuse to receive the part offered to him, and then the con- 
 signor is not bound to pay a pro rata freight.'^ Where what is 
 shipped increases on the voyage, it has been held that freight is 
 
 to his whole freight; and tlic other, if there be a refusal to forward them, is entitled to 
 have them without paying any freight at all." 
 
 In Mackrell v. Simond, 2 Chitty, 6G6, 673, Lord Mansfield says : " The safety of the 
 ship is the mother of freight." And Mr. Justice Maule, in Crozier i'. Smith, 1 Man. & G. 
 407, 415, says : "Freight is generally payable only on the arrival of the vessel, when 
 the merchant receives the goods on which it is charged." See also, Osgood v. Groning, 
 2 Camp. 4G6 ; Barker v. Cheriot, 2 Johns. 352 ; Armroyd v. Union Ins. Co. 3 Binn. 
 437 ; Union Ins. Co. v. Lenox, 1 Johns. Cas. 377, 383 ; Sanipayo v. Salter, 1 Mason, 
 43; Cazc v. Baltimore Ins. Co. 7 Cranch, 358; Vlierboom v. Chapman, 13 M. & 
 W. 230. 
 
 1 Christy v. Eow, 1 Taunt. 300 ; Eitchie v. Atkinson, 10 East, 295. Sec also, 
 M'Gaw V. Ocean Ins. Co. 23 Pick. 405, 414; Frith v. Barker, 2 Johns. 327. 
 
 2 Hinsdell v. Weed, 5 Dcnio, 172. 
 
 ^ Sayward v. Stevens, 3 Gray, 97. In this case the owners of the vessel agreed to 
 transport for a gross sum, a number of miscellaneous goods, which bore no proportion 
 to each other in size or in cost of transportation. Part were lost on the voyage, and 
 the consignee refused to accept the residue. The court held that the contract being 
 entire, the consignor was not liable to pay cither an entire or a pro rata freight. The 
 goods which arrived were sold by the captain, as no one appeared to claini them. 
 After the decision in 3 Gray, 97, the owner of the goods brought an action for money 
 had and received, to recover the proceeds. The defendants claimed to deduct the 
 freight due for the goods, on the ground that the action for money liad and received 
 was an afiinnance of the contract. But the court held that freight should not be 
 deducted. But, as when the goods were sold there was supposed to be more than 
 there actually was, and the agent of the owner of the ship repaid to the purchaser 
 the sum of seventy-five dollars, the court held that this should be deducted. Stevens 
 V. Sayward, Sup. Jud. Ct. Mass. March Term, 1S57. 
 
 13*
 
 150 ON THE LAW OF SHIPPING. [bOOK I. 
 
 due only for what is shipped} If the owner delivers a part of 
 the goods and pays for the rest, he is entitled to his freight on 
 the whole, provided the consignee receives the part delivered.^ 
 If the goods are accepted and freight is demanded, the shipper 
 may have his claim against the ship-owner, by way of offset or 
 otherwise, for the value of the goods not delivered.^ And the 
 ship-owner must indemnify the shipper for their full value, or for 
 the injury they have sustained, unless he can show that they 
 were lost or injured from a cause for which he is not respon- 
 sible ; and the burden of proof is on the ship-owner to show that 
 the loss was occasioned by such a peril.^ But if this is clearly 
 
 1 In a recent case in the Court of Exchequer in England, 2,664 quarters of com 
 •were shipped on board a vessel to be carried from Odessa to Gloucester. The bills 
 of lading were in the usual form, with the clause " quantity and quality unknown," 
 freight payable at a certain rate per quarter On the arrival of the vessel, a portion of 
 the corn having become heated and damaged, the bulk was found to have increased to 
 2,785^ quarters. The court held that freight was payable for the quantity shipped, 
 and not for that delivered. Gibson v. Sturge, 10 Exch. 622, 29 Eng. L. & Eq. 460. 
 
 2 Hammond v. McClures, 1 Bay, 101. 
 
 3 Edwards v. Todd, 1 Scam. 462. See also cases q'MqA post, ch. 7, § 4, n. 
 
 * " After the damage to the goods, therefore, has been established, the burden lies upon 
 the respondents to show, that it was occasioned by one of the perils from which they 
 were exempted by the bill of lading." Per Nelson, J., in Clark v. Barnwell, 12 How. 
 272, 280. See also. Forward v. Pittard, 1 T. R. 27 ; Riley v. Home, 5 Bing. 217 ; 
 Hastings v. Pepper, 11 Pick. 41 ; Colt v. M'Mechen, 6 Johns. 160; The Huntress, 
 Daveis, 82; Bell v. Reed, 4 Binn. 127 ; Clark v. Spence, 10 Watts, 3.35 ; Murphy r. 
 Staton, 3 Munf. 239 ; Ewart v. Street, 2 Bailey, 1.57 ; Smyrl v. Niolon, Id. 421 ; King 
 V. Shepherd, 3 Story, 349 ; Turney r. Wilson, 7 Yerg. 340 ; Whitesides v. Russell, 8 
 Watts & S. 44 ; Dunseth v. Wade, 2 Scam. 285 ; Atwood v. Reliance Transp. Co. 9 
 Watts, 87 ; Mcintosh v. Gastenhofcr, 2 Rob. La. 403 ; Price v. Ship Uriel, 10 La. 
 Ann. 413 ; Whitney v. Gauche, 11 La. Ann. 432 ; Ship Rappahannock v. Woodruff, 
 11 La. Ann. 698; GrietF v. Switzer, 11 La. Ann. 324; Bissell v. Price, 16 111. 408; 
 Alden v. Pearson, 3 Gray, 342, 348 ; Graham v. Davis, 4 Ohio State, 362. In the_ 
 case of Baker v. Brinson, 9 Rich. 201, the bill of lading contained the clause, "rust 
 and breakage are excepted." The articles transported were stoves, one of which was 
 found to be broken on arrival. Held, that the exception included only such breakage 
 as care and diligence could not avoid, and that the burden was on the carrier to show 
 that there had been no negligence on his part. In the case of The Ship Martha, 
 Olcott, Adm. 140, a quantity of sheet iron was found on delivery to be stained and 
 rusted by wet. It was proved that the iron was well stowed, that the ship came in 
 tifht and dry, that the iron was taken on board in dry weather, and not exposed to the 
 access of water. But the court held that this was not enough, for the burden was on 
 the ship to show that the damage existed v.hon the cargo was laden on board. See 
 .also, Zercga v. Poppe, Abbott, Adm. 397. But in Merriman v. Brig May Queen, 
 1 Newb. Adm. 464, the court was of the opinion that a special contract in the bill of
 
 en. VII.] DELIVERY OF THE GOODS. 151 
 
 shown to be the case, then the shipper is bound to show that 
 the loss could have been prevented by the exercise of reason- 
 able care and skill on the part of the carrier.^ And if he pays 
 to the shii)per the full value of the goods, he may deduct from 
 it the freight which would have been payable to him, as other- 
 wise the shipper would be more than indemnified.^ 
 
 But the question of the entirety of the contract arises far 
 more frequently when the goods are not delivered at the end of 
 the voyage, or, in other words, when the whole of the voyage is 
 not completed.'^ We have already seen that the ship-owner has 
 a lien on the goods for his freight; that is, he may retain them 
 until the freight be paid ; but if he retain them he can bring 
 no action for payment of the freight. For the rule is this : 
 there can be no action for freight unless delivery is either made, 
 or prevented from being made, by the act or fault of the shipper 
 or consignee.'* It has been held, however, that if the goods are 
 
 lading in relation to breakage, would, if valid in other resjjccts, throw tlic burden of 
 proof on the shipper. 
 
 ^ It was said in Clark r. Barnwell, 12 How. 272, 280, that if the ship-owner can 
 prove that the loss was occasioned by a peril excepted against, the sliippcr may still 
 show that the loss might have been avoided by the exercise of reasonable skill and 
 attention on the part of the carrier, but in such a case the burden of proving this 
 would be on the shipper. And this was so decided in Hunt v. Propeller Cleveland, 
 1 Newb. Adm. 221, 6 McLean, C. C. 76. 
 
 2 Roccus, note 81, cited by Ld. Mansfield in Luke v. Lyde, 2 Burr. 882, 889 ; Knox v. 
 The Ninetta, Crabbe, .534, 544 ; Arthur v. Schooner Cassius, 2 Story, 81. It was held 
 in the case of Ship Panama, Olcott, Adm. 343, 3G3, that wiierc freight was paid in 
 advance, and the goods were not delivered, the owner had a lien on tlie ship for the 
 freight, and the value of the gootls. But this is certainly inconsistent with tlie cases 
 above cited, and with the subsequent case, decided by the same learned judge, of 
 Thatcher v. IMcCulloh, Olcott, Adm. 365. Sec also. The Joshua Barker, Aiibott, 
 Adm. 215; Bazin v. Richardson, U. S. C. C. Penn. Dist. 1857, 20 Law Reporter, 
 129, 5 Am. Law Reg. 459. 
 
 ^ See ante, p. 148, note 3. 
 
 * In Bradstrcct ?'. Baldwin, 11 Mass. 229, the cargo was seized by tlie government 
 for the default of the sliippcr. The court held, that, " if there was evidence of a readi- 
 ness on the part of the plaintifl's to deliver the cargo to'tlie defendant, and the actual 
 delivery and disdiargo of it had been prevented by the neglect of the defendant to 
 receive it; or if the delivery was intercepted by an attachment, or seizure for a dcfiiult 
 of tlie defendant, the plaintiff's would be as well entitled upon this evidence, as they 
 would be on proving an actual discharge and delivery of the cargo." In Clcndaniel 
 V. Tuckerman, 17 Barb. 184, the vessel arrived at her port of destination, and offered 
 to deliver her cargo. The consignee was not ready to receive it. The vessel waited 
 several days, and during the delay was capsized without any fault on the part of the
 
 152 . ox THE LAW OF SHIPPING. [BOOK I. 
 
 tendered to the consignee at the proper end of the voyage, and 
 the consignee is unable to receive them by reason of the action 
 or prohibition of government, the whole freight is still earned 
 and due; for here, the ship-owner has done all that he was 
 bound to do.i Not so, however, if the ship is prevented from 
 arriving at the port by a blockade, or any similar cause, for then 
 the voyage is not finished in fact, nor can it be certain that it 
 would have been finished and delivery made had there been no 
 obstruction of this kind.^ A usage to receive goods at the quar- 
 antine ground is admissible as showing a compliance with the 
 engagement to deliver at the port.'^ When a cargo is shipped 
 to a foreign country and no particular port of delivery is men- 
 tioned, the presumption is that the general port of delivery of 
 such cargoes in that country is the one meant.^ 
 
 The general rule applicable to carriers and other persons con- 
 tracting to deliver goods, is that a personal delivery is necessary.^ 
 But this rule does not apply to the case of ships, the usages of 
 
 master and crew, and part of the coal was lost. Held, that full freight was earned. 
 Sec also, Brown v. Ralston, 9 Leigh, 532. 
 
 1 Morgan v. Ins. Co. of North America, 4 Dall. 455 ; Bradstrect v. Heron, Ahbott, 
 Adm. 209. It has also been held that where the delivery of the goods is prevented by 
 their wrongful seizure by custom-house officers, the ship-owners will not be excused, 
 nor their contract with the shippers dissolved. Gosling v. Higgins, 1 Camp. 451 ; 
 Spence v. Chodwick, 10 Q. B. 517. See also, Evans v. Hutton, 4 Man. & G. 954. 
 In Brooks i\ Minturn, 1 Cal. 481, it was held that if a seizure by the revenue officers 
 was illegal, full freight would be due, so if legal and occasioned by the fault of the 
 consignee, but if caused by the fault of the ship-owner or his agents, though full 
 freight would be due, if the goods were finally delivered, the consignee might deduct 
 any damages which lie had suffered by the detention. 
 
 " Hadley v. Clarke, 8 T. R. 259 ; Stoughton v. Rappalo, 3 S. & R. 559 ; Scott v. 
 Libby, 2 Johns. 336; Lorillard v. Palmer, 15 Johns. 14, 20; Palmer v. Lorillard, 16 
 Johns. 348; Burrill v. Cleeman, 17 Johns. 72; Richardson v. Maine Ins. Co. 6 Mass. 
 102 ; Baylies v. Pettyplace, 7 ilass. 325. In Sims v. Howard, 40 Maine, 276, goods 
 were shipped from Philadelphia to Bangor. The bill of lading provided that if the 
 river should be closed witli ice, the cargo should be received at Frankfort, or as near as 
 the ice would permit. On arrival at F. the river was full of ice, and the captain refused 
 to go further, but the vessel M-as taken to B. by the owners of part of the cargo, and 
 as soon as this with a part of the goods in question was landed, the vessel was towed 
 back to prevent her being frozen in. The rest of the goods were discharged and stored 
 at F. Held, that freight was due. 
 
 3 Bradstrect v. Heron, Abbott, Adm. 209. 
 
 * Smith V. Davenport, 34 Maine, .520. 
 
 s x\.nd in Wnrdell v. IMourillyan, 2 Esp. 693, it was held that a delivery of goods by 
 a hoyman on the wiiarf to which he usually plied was not sufficient.
 
 CH. VII.] DELIVERY OF THE GOODS. 153 
 
 trade having constituted a delivery on the wharf with notice to 
 the consignee siiffiQient.i The delivery must be on a wharf 
 which is suitable for the cargo which is to be placed upon it ; if 
 then the goods are injured in consequence of the insufficiency 
 of the wharf, the vessel is liable as if no delivery had taken 
 place.2 And although the liability of the carrier may cease by 
 the goods being put on the wharf, yet if they are taken on board 
 again his liability revives.^ 
 
 The goods must not be piled on the wharf promiscuously with 
 those of other consignees, but the master must, as far as pos- 
 sible, separate the different consignments, so as to render them 
 accessible to their respective owners."^ In all cases the master is 
 required to give notice to the consignee of the arrival of the 
 vessel, and of his readiness to discharge the cargo ; ^ and knowl- 
 
 1 In Hj'de v. Trent & Mersey Nav. Co. 5 T. R. 389, which was a case of carriage 
 by hxnd, BuUr-r, J., said : " When goods are brought here from foreign countries, tliey 
 arc brought under a bill of lading, which is merely an undertaking to carry from port 
 to port. A ship trading from one ])ort to another has not the means of carrying the 
 goods on land, and according to the established course of trade, a delivery on the usual 
 wharf is such a delivery as will discharge the carrier." The former part of tiiis reason 
 docs not appear to be perfectly satisfactory, because a bill of lading is not merely " an 
 undertaking to carry from port to port," but it is also a contract to deliver tlie goods 
 to a specified person. The general question of delivery was much discussed in the 
 case of Cope v. Cordova, 1 Rawle, 203, and the usages and customs of several foreign 
 ports in relation thereto set forth at length. In this case the plaintiff was tlie consignee 
 of ten crates of merchandise. As soon as the vessel was ready to unload, he sent a 
 porter to receive them, with a permit and a list of the articles, and with authority to 
 receive them, etc. On the twenty-second of the mouth one or more crates were de- 
 livered to the porter, and one or more on the two following days. The portei; did not 
 attend during the whole of these days, but called repeatedly every day, and took away 
 such as were delivered. One of the crates was landed on the twenty-third, I)ut was 
 not received by the porter, and it was not known what had become of it. It was held 
 that tlie defendant was not liable. 
 
 2 The Bark Majestic, U. S. Dist. Ct., New York, 10 Legal Observer, 100. In this 
 case a cargo of iron was unloaded on a spile dock, the master having notice that it was 
 not strong enough to sustain it, and the vessel was held liable for the injury sustained 
 by the wharf breaking througli. 
 
 3 The Huntress, Daveis, 82. 
 
 4 The Ship Middlesex, U. S. C. C. Mass. Dist., May T, 1857, 21 Law Reporter, 
 14. 
 
 '•> This doctrine is laid down in the early case of Golden r. Planning, 3 Wilson, 429, 
 2 "Wm. Bl. 91 G, as follows : " Tiicre can be no doubt but carriers are obliged to send 
 notice to persons to whom goods are directed, of the arrival of tliose goods within a 
 reasonable time, and must take special care that the goods be delivered to the riglit 
 person." Sec also. The Peytoua, Ware, 2d cd. 541, 2 Curtis, C. C. 21 ; Salmon Falls
 
 154 ON THE LAW OF SHIPPING. [bOOK I. 
 
 edge, therefore, casually acquired that the vessel has arrived and 
 will discharge her cargo at a particular wharf, is not enough.^ 
 Generally, if a notice in the newspaper is relied on, it must be 
 shown that the consignee read the notice.^ If, however, the 
 consignee is absent or cannot be found after diligent search, the 
 want of notice is excused.^ If the master has wrongfully 
 omitted to sign a bill of lading, and has sailed without learning 
 the names of the consignees, he cannot avail himself of his 
 ignorance as an excuse for not giving notice of the landing of 
 the goods.'^ But if it is the fault of the shipper that there is no 
 bill of lading, notice published in a paper taken by the con- 
 signees is sufficient.^ And it is the duty of the master, if no 
 
 Manufacturing Co. v. Bark Tangier, U. S. C. C. Mass. Dist., May T. 1857, 21 Law 
 Ecporter, 6; The Ship Middlesex, 21 Law Reporter, 14; Ostrander v. Brown, 15 
 Johns. 39 ; Price v. Powell, 3 Comst. 322 ; House i'. Schooner Lexington, 2 N. Y. Leg. 
 Obs. 4; Gatliffe v. Bourne, 4 Bing. N. C. 314, 5 Scott, 667, Arnold, 120, affirmed in 
 the Exchequer Chamber, 3 Man. & G. 643, 3 Scott, N. R. 1, and in the House of 
 Lords, 7 Man. & G. 850. In Barclay v. Clyde, 2 E. D. Smith, 95, goods were shipped 
 from New York to Philadelphia. On arrival the carrier sent them by a cartman to 
 the store of the consignee. When they reached the store they were found to be dam- 
 aged, but it did not appear whether it was caused by the cartman or whether it hap- 
 pened on board the ship. It was held that the carrier's liability continued till the 
 goods were delivered, and that the' delivery on the wharf was not sufficient, as no 
 notice had been given to the consignee. 
 
 1 The Sliip Middlesex, 21 Law Reporter, 14. 
 
 2 Kohn V. Packard, 3 La. 224. In Northern v. Williams, 6 La. Ann. 578, no 
 direct notice was given, but the answer did not set up want of it, and the court were 
 of opinion that the consignee received the bills of lading, and saw the notice of the ar- 
 rival in the papers, though there does not appear to have been any proof of this last fact. 
 
 3 risk V. Newton, 1 Denio, 45. The consignee was a clerk in New York, having no 
 place of business of his own, and his name was not in the directory. The agent of the 
 carriers made diligent inquiry for him, but could not find him. He then placed the 
 goods in the hands of storehouse keepers, who were then in good credit, and they gave 
 a receipt for the same. After some months the consignee appeared, demanded the 
 goods, and paid the freight on the receipt being given up to him. But as the store- 
 house keepers had failed, he sought to recover from the carriers. Held, that they were 
 not liable. Mr. Justice Jcwett said : " When goods are safely conveyed to the place of 
 destination, and the consignee is dead, absent, or refuses to receive, or is not known, 
 and cannot, after due efforts are made, be found, the carrier may discharge himself 
 from further responsibility by placing the goods in store with some responsible third 
 person in that business at the place of delivery, for and on account of the owner. 
 When so delivered, the storehouse keeper becomes the bailee and agent of the owner 
 in respect to such goods." See also, MaycU v. Potter, 2 Johns. Cas. 371. 
 
 * The Pcytona, Ware, 2d ed. 541, 2 Curtis, C. C. 21. 
 
 5 Medley v. Hughes, 11 La. Ann. 211. And probably notice in any paper would, 
 in such a case, discharge the vessel.
 
 CH. VII.] DELIVERY OF THE GOODS. 155 
 
 consignee is named in the bill of lading, to store the goods for 
 the benefit of the owiier.^ And this is his duty generally, when 
 the consignee refuses to receive the goods; and after the goods 
 are on the wharf the consignee has a reasonable time, in which 
 to inspect them, and determine whether or not he will accept 
 the consignment. Till he does accept, he is not liable for 
 freight. If he refuses to accept he incurs no liability, and the 
 master cannot leave the goods to perish, but is bound to store 
 them for the owner.- The delivery must be on a proper day as 
 regards the weather, and must also be on a business day,^ and 
 at a proper hour of such day; and a clerk or trucknnan in the 
 employment of the consignees has no authority to bind the lat- 
 ter to receive the goods at an unusual time ;* and the liability of 
 the vessel continues till the consignee has had that reasonable 
 time to examine the goods to determine whether he will accept 
 them or not as spoken of above. In general, the delivery must 
 be reasonable, in time, place, and circumstance.^ 
 
 1 Galloway v. Hughes, 1 Bailey, 553. 
 
 2 Arthur v. Schooner Cassius, 2 Story, 81; Ostrandcr v. Brown, 15 Johns. 39; 
 Chiikcring v. Fowler, 4 Pick. 371. In this last case the action was brought on the bill 
 of lading by the consignor. The consignee refused to accept the goods, and the 
 master took no further care of them, and they accordingly perished. The court held, 
 that if the consignee ordered the goods unconditionally, he was bound to accept them, 
 and then the master would not be liable ; but if not, the master should have stored 
 them for the owner. 
 
 '■^ Salmon Falls Co. v. Bark Tangier, 21 Law Reporter, 6. It was held, in tliis case, 
 that a delivery on Fast day was not good, there being evidence that for more than 
 thirty years Fast day had not been considered a day of delivery. See also, Goddard v. 
 Bark Tangier; Pearson r. Same, 21 Law Reporter, 12. 
 
 * Goddard v. Bark Tangier, 21 Law Reporter, 12. 
 
 ^ Price V. Powell, 3 Comst. 322, which was an action brought by the consignor, it 
 was held, that the liability of the carrier continued till the consignee had had a reason- 
 able time, in which to take away the goods. Notice was given late in the evening, and 
 it was held that the consignee was not obliged to take away the goods before the next 
 day, and that if they were injured in the night while on the whaif, the carrier was 
 liable. So, in Scgura v. Reed, 3 La. Ann. 695, which was also an action by the con- 
 signor. After the delivery on the levee, and notice to the consignees, some of the 
 goods were stolen. The court said : " The contract of the vessel is to deliver the 
 goods to the consignee, and the responsibility continues until there is an actual delivcrv, 
 or some act which is equivalent to, or a substitute for it. Even assuming the general 
 rule to be, that putting tlie goods on the wharf discharges tlie vessel, where there has 
 been a notice to the consignees of the time and place of the delivery, it seems to us 
 that this rule is not to be applied with such rigor against the consignee as to put the 
 goods unqualifiedly at his risk from the very instant of landing them, when he has
 
 156 ON THE LAW OF SHIPPING. [bOOK I. 
 
 It has been held, that a usage to deliver goods without no- 
 tice may be shown.^ But a usage for a wharfinger to accept 
 goods on behalf of the consignees, is not one which will be con- 
 sidered binding.^ And, whatever the law may be in regard to a 
 usage, it is clear that the parties may make a special contract in 
 regard to the manner of delivery.^ The goods should be plainly 
 marked, so that the consignee may be known ; and if, without 
 any fault on the part of the carrier, the owner sustains a loss in 
 
 made repeated calls for them during the day, and the discharge is not made until an 
 advanced hour of the day." The consignee in tliis case received notice between twelve 
 and one o'clock on Saturday, and went himself, and sent his clerk at tliree to receive 
 the cotton. It was not then delivered, and nothing was said in regard to the time 
 when it would be delivered. It was put on tlie levee at four o'clock on that day. On 
 ^Monday ten bales were missing. The carrier was held liable. See also, Northern v. 
 Williams, 6 La. Ann. 578. 
 
 1 Gibson v. Culver, 17 Wend. .305; Farmers and Mechanics Bank v. Champlain 
 Transp. Co. 16 Vt. 52, 18 id. 131, 23 id. 186. But see Price v. Powell, 3 Comst. 322. 
 In Steamboat Albatross v. Wayne, 16 Ohio, 513, a local usage regulating the mode of 
 delivering goods at Memphis, was held not to be binding on shippers of goods from 
 Cincinnati to that place, unless it was known to the merchants and shippers there gen- 
 erally. This was so held, on the ground that a practice which is unknown to those 
 generally engaged in the trade, cannot be sustained as a usage, and cannot control the 
 terms of a contract, because the parties to it cannot be presumed to have contracted 
 with reference to the usage. 
 
 - The Ship ]\Iiddlesex, 21 Law Eeporter, 14. So in Ilarkness v. Church, 10 La. 
 Ann. 64, it was held that a delivery by a carrier to a wharf-boat at the port of destina- 
 tion, without notice to the consignee, was not sufficient. But that, if the consignee 
 paid the freight to the owner of the wharf-boat, which he had advanced, this would 
 amount to a recognition of the authority of the wharf-boatman to receive the goods as 
 the agent of the consignee. See also, Wayne v. Steamboat General Pike, 16 Ohio, 
 421 ; Steamboat Albatross v. Wayne, id. 513. 
 
 3 In the case of The Grafton, Olcott, Adm. 43, 1 Blatchf. C. C. 173, two hundred 
 and sixty-seven bales of hemp were shipped from New Orleans to New York. Notice 
 of the arrival was given, but the consignees, who were also the owners of the goods, 
 •refused to receive them on account of the weather, which they alleged was not suitable 
 for the discharge of the cargo. The evidence showed that the day was one of good 
 working weather after nine, a.m. ; that there were clear indications of rain about noon, 
 and that the storm, which damaged the goods in the afternoon, came on abruptly, with 
 but few minutes previous warning. Notwithstanding the refusal of the consignees to 
 receive tlie goods, the ship began to unload them ; but at a little before noon, an agree- 
 ment was entered into between the consignees and the agents of the vessel, that the lat- 
 ter should cease to unload, if the consignees would take away what was already- un- 
 loaded. The consignees took away a number of bales, but the ship continued to 
 unload, and in the afternoon the bales on the wharf, and some of those which were 
 taken away, but not stored, were damaged by rain. There was evidence that the num- 
 ber taken away was greater than that on the wharf at twelve, though the number stored 
 was less. The court held, that though generally a delivery on the wharf with notice
 
 CH. VII.] DELIVERi'. 157 
 
 consequence of the illegible direction, the carrier is not liable. 
 But if the goods have been delivered to the owner and the 
 freight paid, and the carrier afterwards takes them back without 
 the knowledge of the owner, and delivers them to a third person 
 who claims them, it is no defence to an action for the goods 
 that they were not distinctly marked, although the carrier acted 
 in good faith. ^ 
 
 In Pennsylvania it seems to be supposed that a delivery of 
 goods at a foreign port differs from a delivery in the internal or 
 coasting trade.^ But this distinction does not appear to us to 
 be warranted by law to the extent contended for. If the goods 
 are to be transported over different parts of their route by car- 
 riers having no connection with each other, a notice by one car- 
 rier to another that the goods have arrived, and that he is ready 
 to deliver them, is sufficient to exonerate him.^ 
 
 A question of some difficulty has arisen, whether the contract 
 of the ship-owner or master is so far an entirety that their lia- 
 bility continues till the whole consignment is out of the ship 
 and ready for delivery. On the whole, we should say, that, if the 
 consignee was notified that a part was ready for delivery, he 
 would be obliged to take that part, and could not recover if, be- 
 fore all the goods were out, some were burned or otherwise 
 destroyed or injured, on the wharf.* 
 
 was a delivery to tlio consignees, yet that tl>c spceial agreement ought to Iiave ijeen 
 carried out, and that all the bales taken away from the wharf, whatever their number, 
 were to be considered as accepted by the consignees, but that they might recover for 
 the damage done to the rest. 
 
 1 The Huntress, Daveis, 82. 
 
 2 See Cope v. Cordova, 1 Rawlc, 203. The case of Hemphill v. Chcnie, 6 AY. & S. 
 62, was decided on this ground. It, was tiierc held, that the responsibility of a 
 carrier on the Ohio docs not cease upon the delivery of the goods on a wharf, and 
 notice to the consignee. But when we look at tiie fivcts of this case we shall see that 
 it differs in no respect from the well-settled rule of law applicable to contracts of 
 atTrcightment generally. See ante, p. 155, n. 2. The action was brought by the con- 
 signor, and not by the consignee. The carrier put the goods on the wharf, gave notice 
 to the consignee, and took no further care of them. The goods were probably stolen, 
 and the carrier was held liable. 
 
 3 Goold V. Chapin, 10 I5arb. G12. 
 
 * The question came before Mr. Justice Simiiiue, in a late case, Paine v. Bowker, U. 
 
 S. D. C, Mass. 185G. Three hundred and forty-nine barrels of flour were consigned to a 
 
 firm in Boston. On the twenty-sixth of the month the consignees were notified that 
 
 the ship would unload that day, and the greater portion of the flour was landed on the 
 
 VOL. I. 14
 
 158 ON THE LAW OF SHIPPING. [bOOK I. 
 
 The goods must be delivered at the port of destination, and 
 therefore the vessel is not discharged by showing that the 
 goods were delivered at an intermediate port, and were to be 
 shipped from thence to the port of destination under a contract 
 made by the defendant with another boat.^ 
 
 By the custom of the river Thames the master of a vessel is 
 bound to guard goods loaded into a lighter, sent for them by the 
 consignee, until the loading is complete, and he cannot discharge 
 himself from that obligation by telling the lighterman he has not 
 sufficient hands on board to take care of them.'-^ 
 
 SECTION ly. 
 
 OF THE FORWARDING OF THE GOODS IN OTHER VESSELS. 
 
 As the ship-owner has thus no claim for freight until the 
 whole voyage is completed, he has no lien on the cargo iox pay- 
 ment of freight until then ; but in the* mean time he has a lien on 
 the cargo for the earning- of freight. That is, he has a right to 
 hold a cargo once shipped on board his vessel, and to carry it to its 
 destination, although circumstances may occur which will cause 
 
 wharf. The next morning twelve more barrels were landed. In the afternoon every 
 thinjr on the wharf was destroyed by fire. All the flour, with the exception of three 
 barrels, which were afterwards tendered to the consignee, but not accepted, was on the 
 wliarf at tiie time of the fire. It was contended that the consignee was not bound to 
 take away any of the barrels till the whole was delivered, but the court decided other- 
 wise, and held, that the ship had earned her freight. See also, Vol. II. in regard to 
 the liability of insurers where part of the cargo is on the wharf and destroyed before 
 the whole is landed. 
 
 1 Watts V. Steamboat Saxon, 11 La. Ann. 43. 
 
 2 Catley v. Wintringham, Peake, 150 ; see p. 177, n. 1. In Abbott on Shipping, 379, 
 it is stated that it has been much contested whether the master is, by the usage, bound 
 to take care of the lighter, after it is fully laden, until the time when it can properly be 
 removed from the ship to the wliarf And that, at a trial of this question, it was held, 
 that the master was not oljliged to, citing Robinson v. Turpin, before Lord ElJenhorowjh, 
 C. J. But the action in this case was against the lighterman, and the plaintiff 
 recovered. At a fonner trial the plaintiff had been nonsuited. Whether this former 
 trial was against the master, is not stated, though it is to be inferred that it was.
 
 en. Vn.] FORWARDING OF GOODS IN OTHER VESSELS. 159 
 
 great delay, and perhaps great diminution of value.^ It would 
 seem from the cases, that the shipper may at any time reclaim 
 his goods by paying full freight, especially if he adds compensa- 
 tion for damage, trouble, etc. ; for the lien, or hold, of the ship- 
 owner upon them is only for this purpose;^ but, unless he 
 
 1 Sec ante, p. 128, n. 1 ; also Tindal v. Taylor, 4 Ellis & B. 219, 28 Eng. L. & Eq. 
 210; CIcmson v. Davidson, 5 Binn. 392; M'Gaw v. Ocean Ins. Co. 23 Pick. 405, 
 410 ; Lord v. Neptune Ins. Co. Sup. Jud. Ct. Mass. Nov. T. 1857. The case of Small v. 
 Moates, 9 Bing. 574, also turned upon this point. The court there held that wiiere a 
 charterer bought goods, and placed them on board the vessel, the lien of the ship- 
 owner immediately attached, and that if the charterer sold them, before the vessel 
 sailed, to a third party, and gave him bills of lading in the usual form, at the end of 
 the voyage, the vendee would not be entitled to them on payment of freight, but the 
 ship-owner would have a lien on them for the whole freight due under the charter- 
 part\-. See also eh. 8, § 2, and next note infra. 
 
 2 It is well settled that the master has a right, after the goods arc shipped on board, 
 to carry them to their port of destination and tluis earn his full freight. Having this, 
 right, it has been determined that, at an intermediate port, the master may, if the ship- 
 per wishes his goods, give them up to him, and demand his full freight, or, if this is not 
 paid, he may carry them on, and thus earn it. This grows out of the entirety of the 
 contract. It is however another question, and one it seems to us susceptible of argu- 
 ment, whether the master is ohlicjed, at the intermediate port, to give up the goods on 
 the tender of full freight. There can be no question as to his power to deliver them 
 U]) ; but we are now considering whether he is so far bound to do this, that in default 
 thereof he w-ill be liable as a wrongdoer. It seems, however, to have been taken for 
 granted by the majority of the authorities, that he has no option in the case ; but the 
 point has never been directly adjudicated upon, though it is referred to incidentally in 
 numerous cases. Thus, Chancellor Kent, in Palmer v. Lorillard, 16 Johns. 348, 355, 
 speaking of the contract of aiTreightment, said : " It is well understood in the English 
 law, and in our own, that it is not in the power of one only of the parties to rescind a 
 contract. Being mutually bindhig it requires mutual consent to dissolve it. The one 
 party had no right to tender the cargo, nor the other to demand it, until the contract 
 had been fulfilled, unless, indeed, t/ie demand ivas accompanied with the offer of the entire 
 freiijlit. The one side had an interest in the conveyance of the goods, and the other in 
 
 the payment of the frciglit, and the obligation to perform in the time and mode pro- 
 vided, was reciprocal." See also, Jordan v. Warren Ins. Co. 1 Story, 342, 354, per Storij, 
 J. ; M'Gaw v. Ocean Ins. Co. 23 Pick. 405, 411, per Shaw, C. J. ; Shipton v. Thornton, 
 9 A. & E. 314, per Ld. iJenman, C. J. ; Gibbs i-. Gray, Exch. 1857, 40 Eng. L. & Eq. 
 531. In these cases the point did not arise, and the remarks are merely incidental, 
 and are not therefore of so much authority as they would otherwise be. In the laws 
 of Oleron, art. 4, it is stated that if the ship becomes disabled, the shippers may have 
 tlie goods by paying a pro rata freight, if the mastci- pleases. The article then says : 
 "But if the master will, he may repair his ship, if he can do it speedily; and if not, he 
 may hire another ship to complete the voyage." The 16th article of the Laws of 
 Wisbny, also, provides that "the merchants may take away their goods, paying the 
 freight, or satisfijim/ the muster." The Ordinance of the Marine, liv. III. tit. III. du 
 Fret. art. 11, provides merely that " if the master is obliged to repair his vessel during
 
 160 ON THE LAW OF SHIPPING. [bOOK I. 
 
 chooses to do this, the ship-owner need not deliver them, al- 
 though he is in port, damaged, and the cargo damaged and 
 needing repair, which, with the necessary care of the cargo, will 
 cost much time and money. Still the master or owner may say 
 that he shall perform and finish the passage as soon as possible, 
 and thereby earn all his freight.^ 
 
 the voyage, the shipper must wait, or pay the entire freight." It will thus be seea 
 that by the early maritime laws, the consent of the master was requisite to a dissolu- 
 tion of the contract. The contract of affreightment is like any other contract, and 
 cannot be dissolved at the will of one of the parties to it. It is that the goods shall be 
 carried on the particular voyage for the agreed sum to be paid. If then, the master, for 
 any reason, wislies to carry the goods on to the end of the voyage, it is difficult to sec 
 upon what principle of law he can be compelled to give them up. In Tindal v. Tay- 
 lor, 4 Ellis & B. 219, 28 Eng. L. & Eq. 210 (previously cited on p. 128, n. 1 ), the ques- 
 tion arose, whether a shipper had a right to demand his goods after they were laden on 
 board, but before the vessel sailed from her original port. The court held that, by the 
 usage of trade, the merchant, if he demanded the goods in a reasonable time before 
 *the ship sailed, was entitled to have them delivered back to him on paying the freight 
 that might become due for the carriage of them, and on indemnifying the master 
 against the consequences of any bills of lading signed for them, but that these were 
 conditions precedent, and if not performed, the original contract remained in force. 
 The language of the court, however, shows that if this usage had not been proved, the 
 shipper could not have demanded his goods, without the consent of the master, for they 
 said : " The general rule is that a contract, once made, cannot be dissolved except 
 with the consent of the contracting parties." And in Clark v. Mass. F. & M. Ins. Co. 
 2 Pick. 104, Mr. Justice Putnam said: "Neither party is at liberty to abandon the 
 contract without the consent of the other, or without legal cause, which was not pro- 
 cured or occasioned by the foult of the party who relies upon it." And in The Na- 
 thaniel Hooper, 3 Sumner, 542, 559, Mr. Justice Story said : " Suppose a ship meets 
 with a calamity in the course of a voyage, and is compelled to put into a port to repair, 
 and there the cargo is required to be unlivercd, in order to make the repairs, or to 
 insure its safety, or ascertain and repair the damage done to it ; would such an unliv- 
 ery dissolve the contract for the voyage ? Certainly not." The Spanish Commercial 
 Code of 1829 provides that the shipper may unload his goods on paying half freight, 
 the expense of loading and unloading, and all damage to the other shippei-s. The 
 latter to be at liberty to oppose the unloading, taking the goods upon themselves, and 
 paying the invoice price. Codigo de Commercio, art. 765. 
 
 1 In Jordan v. Warren Ins. Co. 1 Story, 342, insurance was effected on freight from 
 New Orleans to Havre. Soon after sailing, the vessel met with a disaster, and was 
 obliged to put back to New Orleans. The cargo was found to be so much damaged 
 that it would have taken several months to have put it in a condition for reshipmeut, 
 and it was sold by consent. Mr. Justice Slori/ held, that the master had a right to 
 wait till the goods were prepared for reshipment, and then to take them on to their 
 port of destination, if they would arrive there in specie, and that not having done so, 
 the underwriters were not liable. See also, Herbert v. Hallett, 3 Johns. Cas. 93 ; 
 Griswold v. N. Y. Ins. Co. 1 Johns. 204; Saltus v. Ocean Ins. Co. 14 Johns. 138; 
 Ellis V. Willard, 5 Seld. 529 ; Clark i'. Mass. F. & M. Ins. Co. 2 Pick. 104; M'Gaw
 
 CH. YII.] FORWARDING OF GOODS IN OTHER VESSELS. 161 
 
 Nor is this all; for he may send the cargo forward in another 
 ship, or even by land conveyance to its destination, and then 
 claim his whole freight.^ And he not only may do so, but, 
 according to strong authorities, is bound thus to transship the 
 cargo, if there be a vessel or other means of transport, to the 
 place whither the cargo should go, within reasonable reach.^ He 
 is not bound to transship at all events;^ but this obligation 
 
 r. Ocean Ins. Co. 23 Pick. 405 ; The Nathaniel Hooper, 3 Sumner, 542 ; Lord r. Nep- 
 tune Ins. Co. Sup. Jud. Ct. Mass. Nov. T. 1857 ; Mordy v. Jones, 4 B. & C. 394; 
 Hunter v. Trinsep, 10 East, 378, 394; Tronson v. Dent, 8 Moore, P. C. 419, 36 
 Eng. L. & Eq. 41 ; Tio v. Vance, 11 La. 199 ; Adams v. Haught, 14 Texas, 243. 
 
 1 Luke V. Lyde, 2 Burr. 882, 889. Sec also cases in note infra. It is evident from the 
 hniguage of the court in the case of Rosetto v. Gurney, 11 C. B. 176, 183, 7 Eng. L. 
 & Eq. 461, that if the master sends the goods on, he docs it on the original contract, 
 and is entitled to the freight stipulated for, although the expense of sending it on be 
 less than by the original ship. And it was so determined in Shipton v. Thornton, 9 A. 
 &E. 314. 
 
 - All the authorities agree that the master has the power to send the goods on in 
 any other ship, if his own be lost, but it has been doubted whether it is his dutij so to do. 
 The question turns upon tlie nature of the contract made by the parties. It is admit- 
 ted that tlic master is bound to take the goods on, if he can, in his own ship ; but, it 
 has been argued that this is all, and that if his own ship is destroyed by the vis major, the 
 contract is thereby put an end to. The Ehodian Law (Dig. 14. 2. 10. 1.), the laws of 
 Oleron, art. 4, and the laws of Wisbuy, art. 16-, gave the master ;5ou'e/- to transship in 
 such a case. Faber (Com. ad Band.) and V^innius (nottu ad Com. Beckii, ad Rem 
 Nauticum, 294, 295) were of opinion that the master was not bound to transship. The 
 Ordinance of the Marine, on the other hand, held it to be the dtttij of the master to 
 send the goods on if he could. Tit. du Fret. art. 11. Valin (tit. du Fret. art. 11) 
 and Bothicr (Charte Partie, n. 68) hold, that the master is not obliged, and that he 
 loses only his freight for the entire voyage by his omission to procure another vessel. 
 Emerigon maintains the opposite, in support of the old code, tom. 1, 428, 429. By 
 the new code, the master is obliged, if the vessel becomes disabled, to repair her, and 
 during the time of such repairing the shipper is bound to wait, or pay the full freight, 
 and if the vessel cannot be repaired he must hire another, but if he cannot, pro rata 
 freight is due. Code dc Commerce, art. 296. The sulyect is also elaborately dis- 
 cussed by Boulay-Paty, Cours do Droit Commercial Maritime, tom. ii. 398-405 ; and 
 the views taken by Emerigon are adopted by him. Pardessus also is of the opinion 
 that it is the duty of the master in such a case to procure another vessel. Cours dc 
 Droit Com. tome iii. n. 644. In England the point has not as yet been decided. See 
 Shipton V. Tiiornton, 9 A. & E. 314; Rosetto v. Gurney, 11 C. B. 176, 188, 7 Eng. L. 
 & Eq. 461. In this countiy the rule seems to be well settled in accordance with the doc- 
 trine of the text. Saltus v. Ocean Ins. Co. 12 Johns. 107; Schietfelin v. N. Y. Ins. 
 Co. 9 Johns. 21 ; Searle v. Scovell, 4 Johns. Ch. 218, 222; Treadwell v. Union Ins. 
 Co. 6 Cow. 270; Bryant v. Commonwealth Ins. Co. 6 Pick. 130; Ilugg v. Augusta 
 Ins. & Banking Co. 7 How. 595, 609 ; Adams v. Haught, 14 Texas, 243. 
 
 ^ Whitney r. N. Y. Firem. Ins. Co. 18 Johns. 208. In Hiigg r. Augusta Ins. & Bank- 
 ing Co. 7 How. 595, 609, the court said : " It is obvious, therefore, tiuit the perishable cou- 
 
 14*
 
 162 ON THE LAW OF SHIPPING. [BOOK I. 
 
 does not cease although there be no ship lying by him suitable 
 for the purpose; for he must use reasonable efforts to obtain one.^ 
 If he sends the goods on, he should take a bill of lading making 
 them deliverable to the original consignees ;^ and he may pay the 
 expense of sending them on, and charge his whole freight to the 
 shipper or consignee; or he may, as we conceive, charge the con- 
 signee up to the port whence he transships the goods, and charge 
 him also with the expense of transshipment. The rule, as usually 
 expressed, is, that the master must transship if he can, and may 
 then charge the excess of the cost of transshipment over his 
 
 dition of tlie article must be taken into consideration in deciding upon the obligation 
 of the master, in the emergency, to repair his vessel, or to procure another for the pur- 
 pose of sending it on to the port of delivery. If it should be made to appear that the 
 repairs or procurement of another vessel would necessarily produce such a retardation 
 of the voj'nge as would, in all probability, occasion a destruction of the article in spe- 
 cie before it could arrive at the port of destination, or from its damaged condition, 
 could not be reshipped in time consistently with the health of the crew, or safety of the 
 vessel, or would not be in a fit condition from pestilential effluvia, or otherwise, to be 
 carried on, it then was the duty of the master to sell the goods for the benefit of whom 
 it might concern." See also, Williams v. Kennebec Ins. Co. 31 Maine, 455; Ogden 
 V. Gen. Mut. Ins. Co. 2 Duer, 204, 219 ; Smith v. Martin, 6 Binn. 262 ; Pope v. Nicker- 
 son, 3 Story, 465 ; Jordan v. Warren Ins. Co. 1 Story, 342 ; Eoux v. Salvador, 3 
 Bing. N. C. 266 ; Vlierboom v. Chapman, 13 M. & W. 230. 
 
 1 In Saltns v. Ocean Ins. Co. 12 Johns. 107, a vessel could have been procured at 
 Cork, sixteen miles distant from the port of disaster, but the court held that the mas- 
 ter was not bound to obtain one from there, but was only bound to seek for one in the 
 port of distress, or in a port immediately contiguous. In Treadwell v. Union Ins. Co. 
 6 Cow. 270, the court said : " Some certain rule, to govern the discretion of the mas- 
 ter, is desirable, wherever practicable. Although no general rule will govern every 
 case, the approacli to certainty will be considered beneficial to all parties. I think, 
 then, the rule laid down in the last case is at once safe and reasonable. If there be a 
 vessel in the same port, or a contiguous port, which is substantially the same thing, his 
 duty is clear. The rule is imperative. But where resort must be had to distant 
 places, and, independent of procuring a vessel, there are further serious impediments 
 in the way of putting the cargo on board, the rule is not obligatory." See also, Hugg 
 V. Augusta Ins. & Banking Co. 7 How. 595, 610; Whitney v. N. Y. Firemen Ins. 
 Co. 18 Johns. 208. In Bryant v. Commonwealth Ins. Co. 6 Pick. 131, the vessel was 
 stranded at the Washwoods, on the coast of Virginia. The goods might have been 
 taken to Norfolk, M'hich was distant forty miles, by land, and there reshipped, and the 
 court held that if it were reasonable to require the master to procure a vessel froni 
 there, taking into view the nature of the voyage, and the time, expense, and risk of the 
 transportation to the port of destination, lie would be bound to do so. They said : " It 
 may happen that a vessel might be procured at a port in another state, and not geo- 
 graphically contiguous to the port of distress, in convenient time and ujjon more rea- 
 eonable terms, than could be had in the port of distress." 
 
 - Everett ;-. Saltus, 15 Wend. 474; s. c. noin. Saltus v. Everett, 20 Wend. 267.
 
 CH. YII.] FORWARDING OF GOODS IN OTHER VESSELS. 163 
 
 freight to the owner of the goods.^ The reason of this is, that 
 as soon as such an exigency arises the master is clothed, from 
 necessity, with authority to act as agent of all interested. For 
 the ship-owner, he must do what can be done to save his 
 freight; for the shipper, he must do what can be done to save 
 his goods and send them to their port of destination. 
 
 He is the agent of both parties. And while he thus preserves 
 his owner's right to freight, he lays upon the owner of the goods 
 an obligation which is the same thing in fact, whether we say 
 that the consignee must pay the w^hole freight and the excess of 
 the cost of transshipment over what would have been the pro- 
 portion of the freight earned by carriage on the original ship 
 from the intermediate port, or the freight to that port, and the 
 whole cost of transshipment.- And on a river a usage may be 
 
 1 In Eosetto v. Gurney, 11 C. B. 176, 188, 7 Eng. L. & Eq. 461, Jervis, C. J., refer- 
 ring to a case where the cargo was detained by perils of the sea at an intermediate 
 port, said : "If the voyage is completed in the original ship, it is completed upon the 
 original contract, and no additional freight is incuired. If the master transships, be- 
 cause the original ship is irreparably damaged, without considering whether he is 
 bound to transship, or merely at liberty to do so, it is clear that he transships to earn liis 
 full freight, and so the delivery takes place upon the original contract. It may happen 
 that a new bottom can only be obtained at a freight higher than the original rate of 
 freight. It does not seem to have been settled, whether, in that case, the ship-owner 
 may charge the cargo with the additional freight. By the French law he may do so, 
 and as a consequence of that rule, the increased freight would be an average loss to be 
 added to the other items. Sec Shipton v. Thornton, 9 A. & E. 314." In Hugg v. 
 Augusta Ins. & Banking Co. 7 How. 595, 609, the court said : " The owner of the 
 cargo is liable for any increased freight arising from the hire of another vessel, and 
 unless it can be procured at an expense not exceeding the amount of tlie freight to be 
 earned by completing the voyage, the underwriter on freight has no right to insist upon 
 this duty of the master. Beyond this it becomes a question between him and the 
 owner or underwriter of the cargo." See also, Searle r. Scovell, 4 Johns. Ch. 218 ; 
 Am. Ins. Co. v. Center, 4 Wend. 45; Mumford v. Comra. Ins. Co. 5 Joinis. 262. 
 A question has been made how far an insurer on the cargo is ILable for this advance 
 freight. Shultz v. Ohio Ins. Co. 1 B. Alon. 339. We shall consider this question in 
 our chapters on Inswance. 
 
 2 In Shipton v. Tliornton, 9 A. & E. 314, Lord Denman, C. J., said : " No case of 
 the sort that we arc aware of has occurred in this country ; nor is it necessary for us to 
 express any opinion further than as it bears on the present question. It may well be 
 that the master's right to transship may be limited to those cases in which the voyage 
 may be completed on its original terms as to freight, so as to occasion no furtiier 
 charge to the freighter ; and that where the freight cannot be procured at that rate, 
 another but familiar principle will be introduced, that of agency for the merchant. 
 For it must never be forgotten that the master actS' in a double capacity, as agent of
 
 164 ON THE LAW OP SHIPPING. [BOOK I.' 
 
 shown to charge lighterage in addition to freight, when the 
 water is so low that the boat cannot proceed.^ 
 
 If he can transship and will not, then the shipper is entitled to 
 his goods without making any payment of freight; for the mas- 
 ter or ship-owner has no interest in, or lien on the goods 
 whatever, except he has earned his freight, or is about to 
 earn it. And if neither of these things is true, the shipper 
 is entitled to his goods without any burden or charge upon 
 them.2 
 
 the owner as to the ship and freight, and agent of the merchant as to tlie goods ; these 
 interests may sometimes conflict with each otlicr ; and from that circumstance may 
 have arisen the difficulty of defining the master's duty under all circumstances in any 
 but very general terms. The case now put supposes an inability to complete the con- 
 tract on its original terms in another bottom, ami, therefore, the owner's ri<jht to trans- 
 ship will be at an end ; but still, all circumstances considered, it may be greatly for the 
 benefit of the freighter that the goods should be forwarded to their destination, even at an 
 increased rate of freight ; and if so, it will be the duty of the master, as his agent, to do so. 
 In such a case, the freighter will be bound by the act of his agent, and of course be 
 liable for the increased freight." See also the remarks of Mr. Justice Story, in Jordan 
 V. Warren Ins. Co. 1 Story, 342, 352, 353. In Gibbs v. Gray, Exeh. 1857, 40 Eng. L. 
 & Eq. 531, the vessel chartered by the plaintiffs, and loaded with guano consigned to 
 them, put into Valparaiso in distress, and it became necessary to transship and forward 
 the cargo. The captain who was appointed by the owners of the vessel, accordingly 
 entered into a charter-party with the defendants, the owners of another vessel, to take 
 tlie guano on at a stipulated rate of freight. The charter-party stated the number of 
 tons to be 470. The guano was put on board the latter ship, but it appeared that the 
 quantity was much less than 470 tons. The plaintilfs had agents at Valparaiso, but 
 thej'- were not consulted. The plaintiffs, on the arrival of the vessel, agreed to pay the 
 rate of freight in the charter-party on the number of tons actually delivei'ed, but the 
 defendants demanded freight on the number mentioned in the charter-party. This was 
 finally paid under protest, and this action brought to recover it back. Tlie court inti- 
 mated a very strong doubt whether the master of a ship has any authority to send 
 goods on without giving the agent of the owner any option to receive them, when the 
 agent is known to be at the place. It was held tliat the master had no authority to 
 bind the plaintiffs to pay dead freight for goods not actually transshipped, and that he 
 could not bind the owners of the goods by a charter-party to provide a full cargo. 
 
 1 Andrews v. lloach, 3 Ala. 590. 
 
 ^ In Hunter v. Prinsep, 10 East, 378, 394, Lord Ellcnborour/h said : "If the sliip be 
 disabled from completing her voyage, the ship-owner may still entitle himself to the 
 whole freight by forwarding the goods by some other means to the place of destina- 
 tion ; but he has no right to any freight if they be not so forwarded ; unless the for- 
 warding them be dispensed with, or unless there be some new bargain upon this sub- 
 ject." See also, Portland Bank v. Stubbs, 6 Mass. 422 ; Adams v. Haught, 14 
 Texas, 243. In Welch v. Hicks, 6 Cow. 504, the court held that it was a question for 
 the jury to decide, whether the master intended hondjide to repair the vessel and com-
 
 en. VII.] FORW.ARDING OF GOODS IN OTHER VESSELS. 165 
 
 Instead of transshipping, he may tender the goods at the inter- 
 mediate port to the shipper, and the shipper may refuse to 
 accept, and then the master must transship if he can; or the 
 shipper may accept the goods at that place, and then he must 
 pay freight pro rata ilineris ; that is, must pay such part or pro- 
 portion of the whole freight as the part of the voyage performed 
 is of the whole voyage.^ 
 
 Many questions have been raised respecting this pro rata 
 payment of freight, and some of them are- not yet finally set- 
 tled. 
 
 The principal question is, what acceptance on the part of the 
 shipper lays upon him the obligation of this payment. For- 
 merly, it was held, that any acceptance w^as sufficient to have 
 this effect ; now it seems to be the law that the acceptance must 
 be voluntary. Questions* of this kind are often complicated 
 with the particular facts of the case, and it is therefore difficult to 
 lay down any abstract rule which will serve to decide and deter- 
 mine all cases. If the earliest leading case be law,^ then if a 
 ship is captured and recaptured and brought into any port 
 nearer to her destination than the port from which she sailed, 
 and there the shipper taklfe his goods, he must pay freight 7?ro 
 rata, whatever may have been the motive from which, or the 
 compulsion under which, he took them. But this rule, which 
 has been much qualified in England, has been, if not positively 
 set aside, modified in a yet greater degree in this country. Here, 
 it now seems to be held, that the acceptance must be voluntary 
 
 plctc tlie voynge, and whether the acceptance of the goods was voluntary on the part 
 of the defendant, the sliipper. For, if not, the court held that the ship-owner would 
 not be entitled to any freight. Sec Annroyd i'. Union Ins. Co. 3 Binn. 4.'i7. 
 
 1 The contract of affreightment, as we have seen, being entire, the ship-owner will 
 not he entitled to recover on the contract unless it I« completely performed. Sturgcs 
 V. Gairdncr, 2 Brev. 23.3. But like any other contract this may be terniinated iiy tho 
 consent of the parties to it. And if the contract is put an end to, and the shipper vol- 
 untarily receives his goods, the shipper has, ffom the earliest times, been held liable to 
 pay a ratable freight. Roccus, note 81 ; Laws of Oleron, art. 10 ; Ordinance of Wis- 
 buy, art. IG, 37 ; Consolato del Mare, and The Rhodian Laws as cited i)y Lord Mans- 
 field, in Luke v. Lyde, 2 Burr. 882, 889 ; Maylnc, Lex ]Mercatoria, p. 98 ; I>utwidgc 
 V. Grey, cited in Luke r. Lydc, and at length in Abbott on Shipping, 438 ; Luke v. 
 Lyde, 2 Burr. 882. Sec also, Parsons v. Hardy, 14 Wend. 215; Bossiter r. Chester, 
 1 Doug. Mich. 1.54; Hunt v. Haskell, 24 Maine, 339; Forbes v. Rice, 2 Brev. 3G3. 
 
 2 Luke v. Lydc, 2 Burr. 882.
 
 166 ON THE LAW OF SHIPPING. [BOOK I. 
 
 in substance and fact, or no claim for freight arises from it.^ 
 According to the earlier view, if the goods arrived at the inter- 
 mediate port, the owner of them must either take and pay- 
 freight, or refuse to take at all. Now, if the possession of the 
 goods is in fact forced upon him, if there seems to be no alterna- 
 tive and he takes under what may be regarded as a strict compul- 
 sion, or if the goods or their proceeds are thrown upon him with- 
 out his action, he thereby incurs no obligation to pay any freight.^ 
 
 1 The difficulty in regard to the la.w on this point has arisen from losing sight of the 
 nature of the contract. The master is entitled to take the goods on to the port of des- 
 tination, and thus earn his freight, and the shipper has a right to say that this shall be 
 done. If, therefore, the goods are given up to the shipper at the intermediate port, it 
 must be bj^ virtue of a new contract made by the parties. And as the shipper has a 
 right to have the goods taken on, he cannot, against his consent, be compelled to re- 
 ceive them at the intermediate port. The case or Luke v. Lyde has been generally, 
 considered as warranting the broad proposition that the shipper is bound to pay 
 a pro rata freight if he receives the goods at any place short of the jwrt of desti- 
 nation, whether such reception be voluntary or not. And in some early cases in this 
 country it seems to have been thus understood. United Ins. Co. v. Lenox, 1 
 Johns. Cas. 377 ; Williams v. Smith, 2 Caines, 13 ; Eobinson v. Mar. Ins. Co. 2 
 Johns. 323. Sec also, Post v. Robertson, 1 Johns. 24 ; Baillie v. Moudigliaui, Park 
 on Ins. 70. Whether the case of Luke v. L^-de jultified such a construction is, at least, 
 doubtful; but, however this may be, the law is now well settled that the acceptance 
 must be voluntary. See Liddard v. Lopes, 10 East, 526 ; Cook r. Jennings, 7 T. R. 
 381 ; Jlulloy v. Backer, 5 East, 316 ; Vlierboom v. Chapman, 13 M. & W. 230; Mar. 
 Ins. Co. V. United Ins. Co. 9 Johns. 186 ; Welcli v. Hicks, 6 Cow. 504 ; Center v. Am. 
 Ins. Co. 7 Cow. 564, 582 ; Armroyd v. Union Ins. Co. 3 Binn. 437 ; Hurtin v. Union 
 Ins. Co. 1 Wash. C. C. 530 ; Callender v. Ins. Co. of N. A. 5 Binn. 525 ; Gray v. 
 Wain, 2 S. & R. 229 ; Caze v. Bait. Ins. Co. 7 Cranch, 358 ; Sampayo v. Salter, 1 
 Mason, 43 ; Col. Ins. Co. v. Catlett, 12 Wheat. 383 ; Hooe r. Jlason, 1 Wash. Va. 207 ; 
 Eossiter v. Chester, 1 Doug. Mich. 154; Adams v. Haught, 14 Texas, 243; The Na- 
 thaniel Hooper, 3 Sumner, 542. See also, Pinto r. Atwater, 1 Day, 193; Dorr v. N. 
 E. Mar. Ins. Co. 4 Mass. 221 ; Coffin v. Storer, 5 Mass. 252. 
 
 2 It was held, in Welch v. Hicks, 6 Cow. 504, that when a master refuses to repair his 
 ship, and send on the goods, or to provide other vessels for this purpose, and the owner 
 of the goods then receives them, this will not be a voluntary acceptance. So, too, where 
 a vessel had been captured, and all the . goods condemned, excepting those of the 
 plaintiff, which were sold by the defendant, who claimed a right to deduct from the 
 proceeds the stipulated freight for the whole voyt^e, or at least, a pro rata freight, the 
 court held, that none was due. Sampayo v. Salter, 1 Mason, 43. Mr. Justice Story 
 said : " But it never has been supjwsed that a pro rata freight was due, when by a cap- 
 ture the party has been incapable of performing the voyage, and the shipper has been- 
 compelled to receive his goods at the hands of the admiralty." See also, IMar. Ins. Co. 
 V. United Ins. Co. 9 Johns. 186. In Armroyd v. Union Ins. Co. 3 Binn. 437, the 
 vessel was condemned, sold, and the voyage broken up. The goods also were sold, 
 and the net proceeds paid to the supercargo. Held, no freight was due. In Hurtin v. 
 Union Ins. Co. 1 ^Vils]l, C. C. 530, where the vessel was captured, but not condemned.
 
 en. YII.] rORWARDINa op goods in other TE.SSELS. 167 
 
 However reasonable this rule may be in theory, it must very 
 often be of difficult application. The equity, in all these cases, 
 would seem to be this ; if the owner of the goods receives them 
 at any intermediate port, with their value increased by the car- 
 riage of them to that port, be should pay the ship-owner for this 
 increase of value. But if he sends them to one place, and 
 receives them at another because he cannot well help himself, 
 and they are worth to him no more at this port than at the port 
 from which they sailed, then nothing is due from him to the 
 ship-owner. This we say is the equity of the case, and it is, we 
 think, the tendency of the modern adjudications of this question 
 to apply to each case a rule which will work out this equity.^ 
 
 The master is not authorized to accept the cargo at an inter- 
 mediate port, so as to charge the owner with a/?ro rata freight.^ 
 And if he sells the cargo and the shipper lays claim to the pro- 
 ceeds, this does not amount to a voluntary acceptance on his 
 part.2 If the shipper abandons the goods to the underwriter 
 after the voyage is broken up, it has been held that a pro rata 
 freight is due.^ 
 
 and the supercai^o thonght it was for the best interest of all concerned that the goods 
 should be sold, Mr. Justice Washinfjton said : "But if it is received by compulsion, and 
 the supercargo or captain is acting for the best, for the benefit of all concerned, with a 
 view to preserve it for the jx-rson entitled to receive the proceeds, no freight is earned." 
 See also, Callendcr i-. Ins. Co. of N. A. .'> Binn. 52.5 ; Gray v. Wain, 2 S. & \\. 229 ; Caze 
 V. Bait. Ins. Co. 7 Crunch, 3.58; Pinto r. Atwood, 1 Day, 193; Halwerson v. Cole, 
 1 Spcers, 321. In The Nathaniel Hooper, 3 Snmn. 542, 5G6, Mr. Justice Slory held 
 an acceptance to be voluntary which, he says, " is, if I may so say, a reluctant ac(iui- 
 esccnce forced upon them by an overruling necessity." 
 
 ^ Coffin V. Storer, 5 Mass. 2.52. In acconlance with this rule it has been decided 
 that, where a vessel receives darnage, and puts back to the port, from which she 
 started, and the master chooses to deliver up the goods wlien lie is not obliged to, no 
 freight will 1)C due, because no beneficial service has ))cen rendered by the sliip-owners. 
 Scott V. Libby, 2 Johns. 33G ; Miston v. Ivord, 1 Blatchf C. C 354 ; Lord r. Ne])tune 
 Ins. Co. Sup. Jud. Ct. Mass. Nov. T. 1857. See also, Jordan r. "Warren Ins. Co. 
 1 Story, 342. In the case of The Hiram, 3 Rob. Adm. 18(7, the vessel .sailed on a 
 voyage from Liverpool to Halifax. She was captured and bronght Ijack to Plymouth. 
 Sir William Srolt held that was the same as if she had been brot?g]it to Liverpool, for 
 the shipper had derived no benefit from the voyage. He therefore held that no freight 
 whatever was due. 
 
 •^ Vlierboom r. Chapman, 13 M. & W. 230; The Ann D. Richardson, Ablwtt, 
 Adm. 499, 1 Blatchf. C. C. 358 ; Miston v. Lord, 1 Blatchf. C. C. 354 ; The Brig 
 Velona, U. S. I). C. Mass., Boston Courier, Dec. 15, 1857. 
 
 ^ See p. 166, n. 2, and c;vses in note »npra. 
 
 * Van Norden v. Littlejohn, 2 Taylor, IG.
 
 168 ON THE LAW OF SHIPPING. [BOOK I. 
 
 It is obvious that no freight pro rata can be recovered on the 
 original contract. A claim for it can be sustained only on the 
 ground of an implied assumpsit ;i and this again, would seem 
 to have no other foundation than the general rule, that one who 
 accepts and holds a benefit rendered, must acknowledge himself 
 indebted for it. In like manner, if a ship is chartered to carry a 
 cargo on a certain voyage, and a part of the cargo is lost by the 
 perils of the sea, and a part is carried and delivered and 
 accepted, although there may be no recovery of any part of the 
 charter-money in an action on the charter-party itself, yet an 
 action may be maintained on the implied assumpsit for freight 
 for the goods carried and received.^ 
 
 It is not quite certain how the proportion shall be calculated, 
 when pro rata freight is due. There are in fact but two ways 
 of doing this. The part of the voyage for which freight is to 
 be paid may be a geographical part, or a commercial (or a 
 pecuniary) part. That is, the shipper may be held to pay, as in 
 the earlier cases, so much per mile or league, for what has been 
 done out of the whole voyage, or so much as it would cost to 
 bring them to the port at which the goods are accepted. Every 
 
 1 The action in Luke v. Lydc, 2 Burr. 882, although it is not so stated in the report 
 of the case, was assumpsit, and not an action on the original contract. See Cook v. 
 Jennings, 7 T. R. 381. Abbott also, in his Treatise on Shipping, p. 444, says that he 
 had examined the record, and found that the declaration was for the freight of goods 
 carried in the plaintilFs ship, v.'ithout mentioning from or to what place. See also 
 Christy v. Row, 1 Taunt. 300; Mulloy v- Backer, 5 East, 316 ; Liddard v. Lopes, 10 
 East, 526; Vlierboom v. Chapman, 13 M. & W. 230; Robinson v. Mar. Ins. Co. 2 
 Johns. 323; Mar. Ins. Co. of N. Y. v. Un. Ins. Co. 9 Johns. 186; Armroyd v. Un. 
 Ins. Co. 3 Binn. 437, 447 ; Callender v. Ins. Co. of N. A. 5 Binn. 525 ; Caze v. Bait. 
 Ins. Co. 7 Cranch, 358 ; The Nathaniel Hooper, 3 Sumner, 542 ; Hurtin v. Union Ins. 
 Co. 1 Wash. C. C. 530. See also cases ante, p. 166, note 1. 
 
 2 Post V. Robertson, 1 Johns. 24 ; Coffin v. Storer, 5 Mass. 252. If a charter- 
 party is entered into for a time certain, at a given rate per month, and in the same pro- 
 portion for whatever time the vessel may be employed, and is afterwards dissolved by 
 mutual consent, pro rata compensation can be recovered under a special count alleging 
 the employment of the vessel from the time stipulated for the charter-party to com- 
 mence till its dissolution, or it may be recovered under a general count of indebitatus 
 assumpsit. Wheeler v. Curtis, 11 Wend. 653. And an action of covenant can be 
 maintained in a case where a vessel is let to peifomi several voyages, and performs an 
 intermediate Aoyagc at the request of the charterer's agent, the voyages described in 
 the charter-party having been performed, and the charterer in the action of covenant 
 seeking to recover no recompense for the additional voyage. Solomon v. Higgins, 6 
 Weud. 425.
 
 en. VII.] FORWARDING OF GOODS IN OTHER VESSELS. 169 
 
 rule must be a modification of one of these. The latter rule is 
 that which we think is favored, and will generally be adopted 
 in this country ; and the simplest method of applying it would 
 be, for the shipper to pay the whole freight, deducting what 
 would be the ordinary or usual cost of carrying the cargo from 
 the port at which he received them to that of their original des- 
 tination.^ 
 
 The questions relating to pro rata freight have often arisen in 
 cases of capture and recapture, or release and return of the ship ; 
 or condemnation and sale of the ship and cargo and an ultimate 
 recovery of the proceeds ; or sale under decree for salvage, and 
 payment of proceeds to the shipper or his representatives, after 
 deducting salvage. We do not consider these cases by them- 
 selves, for the general rules and principles, we have already 
 stated, are perfectly applicable to them. Where goods never 
 arrive at their port of destination, but are captured and re- 
 taken, or restored, or sold by decree and the proceeds paid 
 over, at some other port or place, such reception of the cargo or 
 its proceeds would not now be considered a voluntary accept- 
 ance, so as to raise the assumpsit on which the implied promise 
 to pay pro rata freight must rest, unless there were peculiar facts 
 or stipulations to sustain such an implication.^ It should be 
 
 1 In Luke V. Lyile, 2 Buit. 882, 888, Lord Mansfield said : " Here the master had come- 
 seventeen days of his voyage, and was within four days of the destined port when the 
 accident liappened. Therefore he ought to he i)aid his freight for 17-21st parts of the 
 fall voyage." In Robinson v. Mar. Ins. Co. 2 Johns. 32-3, owing to the circum- 
 stances of the case, the rule of Luke v. Lyde was adopted. Kent, C. J., however, in 
 delivering the opinion of the court, considered the rule laid down in Marine Ins. 
 Co. V. Lenox, decided by the court for the coiTcction of errors in New York, to be 
 more equitable when it could be applied. That rule was to ascertain how much of the 
 voyage had been performed, not when the ship first encountered the peril, and was 
 interrupted in her course, but when the goods had arrived at the intermediate port, 
 because that was the extent of the voyage performed as far as regarded the interest of 
 the shipper. In Coffin v. Storcr, 5 Mass. 252, it was held that freight Avas not to be 
 calculated according to the portion of the voyage performed, compared with that of the 
 whole voyage, but the actual benefit which the shipper received by the transportation. 
 
 '^ Escopiniche v. Stewart, 2 Conn. .*?91. In this case rice was shipped to Bermuda. 
 On the way the vessel was captured, and taken to Antigua, but the cajjtain of the 
 privateer, on finding that it belonged to the defendant, delivered it up to a passenger 
 on boanl the vessel, who sold it, and sent tlie proceeds to the defendant. It was held' 
 that this did not amount to an acceptance so as to render the defendant liable for 
 freight. See also, cases cited ante, pp. 1G6, 167. 
 VOL. I. lO
 
 170 ON THE LAW OF SHIPPING. [bOOK I. 
 
 added, that if the parties, in. the original contract, whether by 
 bill of lading or otherwise, choose to stipulate — as they some- 
 times do — that no claim shall arise under any circumstances for 
 pro rata freight, no such claim will be given by any implication 
 of law. If a vessel, after her arrival in port, is ordered to per- 
 form quarantine, and the cargo is landed and stored in the quar- 
 antine ground, the shipper or consignee is bound to pay the ex- 
 pense of landing and storage.^ And if it is the custom for the 
 consignee, when the vessel is at quarantine, to send down per- 
 sons at his own expense to pack and take care of the goods, a 
 neglect on his part to do this will exonerate the master for 
 damage to the goods occasioned by their coming on shore 
 loose.2 
 
 We have seen that no claim for freight exists until delivery ; 
 but the goods must be delivered also in good condition, or if 
 damaged, then from causes for which the ship-owner is not 
 responsible.^ And it has been recently determined, that the 
 owners of a general ship are liable to a shipper for damage done 
 to the goods from other goods stowed in the hold, without alle- 
 gation or proof of any wilful or negligent default on the part of 
 the ship-owner.* And it would seem that they are so liable, 
 even if the goods doing the injury were put on board in a condi- 
 tion to do mischief, by the shippers of the damaged goods, the 
 proximate cause of the injury being the stowage of them by 
 the captain too near the other goods.^ And the legal pre- 
 
 1 Eice V. Clendining, 3 Johns. Cas. 183. 
 
 2 Dunnage v. Joliffe, before Lord Kenxjon, C. J., 1789, cited in Abbott on Shipping, 
 380. See also, ante, p. 152, note 3. 
 
 3 Clark V. Barnwell, 12 How. 272; Malynes, Lex Mercatoria, p. 102; Boucher v. 
 Lawson, Cases temp. Hardw. 78, 183 ; Parish i'. Crawford, 2 Stra. 1251 ; Bellamy v. 
 Eussell, 2 Show. 167 ; Shields v. Davis, 6 Taunt. 65, 4 Camp. 119 ; Gibson i'. Sturge, 
 10 Exch. 622, 29 Eng. L. & Eq. 460; Schureman v. Withers, Anthon, 166; Bar- 
 tram V. M'Kee, 1 Watts, 39 ; Leech v. Baldwin, 5 Watts, 446 ; Humphreys v. Reed, 
 6 Whart. 435; Ewart v. Kerr, 1 Rice, 203; Ewart v. Kerr, 2 M'MuUan, 141. 
 
 * Gillespie v. Thompson, cited 6 Ellis & B. 477, note, 36 Eng. L. & Eq. 227 ; Br6as- 
 seau V. Ship Hudson, 11 La. Ann. 427. But see Baxter v. Leland, Abbott, Adm. 
 348, 1 Blatchf. C. C. 526. 
 
 5 Alston V. Herring, 11 Exch. 822, 36 Eng. L. & Eq. 475. The defendant's plea 
 in this case set up a charter-party, by which the defendant as owner, chartered the 
 ship to the plaintiffs, and agreed to load a cargo from the plaintiffs' factors, and 
 carry and deliver it. It also alleged that the plaintiffs shipped the goods mentioned in 
 the declaration, and also contracted with a third party to receive from him and carry
 
 en. VII.] FORWARDINa OF GOODS IN OTHER VESSELS. 171 
 
 sumption arising from the statement in the bill of lading, that 
 the goods doing the damage were in good order when shipped, 
 cannot affect a third party.^ 
 
 The question has arisen whether shippers are not answerable 
 to the owners of the vessel, for putting on board dangerous 
 goods, or goods insufliciently packed, the dangerous character 
 of which cannot be discovered by easy inspection, and is not 
 made known to the owners by the shippers, and it would seem 
 that they are so liable.^ So if a shipper puts on board, without 
 
 certain cases of sulphuric acid for freight to be paid to the plaintiffs, and tliat it was 
 the duty of the plaintiffs as the sliippcrs to give notice to the owners of the ship of the 
 article being sulphuric acid, in order that it might be stowed in some place where, if it 
 leaked, it would not come in contact with other parts of the cargo, that no notice was 
 given, that they caused the cases to be stowed near the goods mentioned in the declara- 
 tion, and that some of the acid leaked and damaged the goods, and so prevented the 
 defendant from performing the agreement, and that the damage was occasioned by the 
 plaintiffs' neglect. The court held this plea to be bad ; Aldcrson, B., said : " It is 
 ti-ue the plea alleges that but for the shipment of the acid without notice, the damage 
 would not have happened. But the shipment alone would not be enough. A further 
 act would 1)6 necessarj^ namely, the placing of the acid where it was placed in the 
 ship, and that was the defendant's act, and he was the immediate causer of the dam- 
 age." In answer to the objection that the suit could not be maintained, because in a 
 cross action the defendants would have to refund the sum demanded, the court said : 
 "In svich an action might not the plaintiffs well contend that though the defendant 
 would not have put the cases where he did had he known the contents, yet as he was 
 content to ran the risk of their containing some fluid which might have caused the 
 damage, it v/ould be unreasonable to make the plaintiffs liable for the whole damage, 
 because it turned out that the cases contained sulphuric acid ? We think so. It is 
 true the plea states the cases were placed where they were without any neglect, default, 
 or wrongful act of the defendant. That means no more than that the so placing them 
 was neither neglect nor intrinsically wrong. Be it so. But it is certain had the con- 
 tents of the cases been some fluid, and not sulphuric acid, which had escaped and dam- 
 aged the cambric, the ])laintiffs would have been entitled to recover, whether the 
 defendant had been negligent or not. We think, therefore, a jury might take that into 
 their consideration, in estimating the damages which the now defendant would sue the 
 plaintiffs for, on the supposed contract not to ship sulphuric acid without notice, and 
 consequently the damages in such an action might be dift'erent from those recoverable 
 in this action, and that the rule for preventing circuity of action does not apply." 
 
 1 Brousscau v. Ship Hudson, 11 La. Ann. 427. 
 
 2 Brass r. Blaitland, 6 Ellis & B. 470, 36 Eng. L. & Eq. 221. The fourth plea of 
 the defendants was helil to be good. It was that the master knew, or had tlie means of 
 knowing, and reasonably might, could, and ougiit to have known tliat the goods shipped, 
 namely, bleaching powder, contained chloride of lime, and that the master and persons 
 employed about the shi[) knew and had the means of judging, and knowing the state 
 and condition and sufficiency of the casks. But the court were not unanimous in 
 respect to a plea, setting forth that the master knew or had the means of knowing and 
 ought to have known the nature of bleaching powder. One of the judges was inclined
 
 172 ON THE LAW OF SEIPriNG. [bOOK I. 
 
 the knowledge of the captain, goods which are forbidden to be 
 exported, he is liable if the ship is seized.^ Where a cargo of 
 goods was delivered in a damaged condition, and it was sold 
 by the consignees with the consent of the master, and the 
 evidence showed that it wonld have sold better had the dam- 
 aged part been separated from the rest, but that it would have 
 been tedious and troublesome to have done so, it was held that 
 it was the duty of the master, and not of the consignees, to 
 iiave made such separation.^ 
 
 A literal and precise application of the provisions of the bill 
 •of lading would deprive the ship-owner of all freight, if the 
 goods were not delivered in as good condition as received. In 
 practice, however, if the goods are delivered, but damaged by 
 -causes for which the ship-owner is responsible, the freight is pay- 
 able, but the shipper may claim compensation for the damage, 
 -whether it be greater or less in amount than the freight; and 
 may claim it by way of set-off, or by an independent action.^ 
 
 to dissent from the decision, holding the plea good, on the ground that the master was 
 not the party generally concerned in the shipping, taking on bo;^rd, or stowing of 
 goods. 
 
 1 Sparks v. West, 1 Wash. C. C. 238. 
 
 2 The Columbus, Abbott, Adm. 37. 
 
 ^ In England the rule is well settled that the shipper cannot, in an action brought 
 against him for freight, set up, in defence, that the goods were damaged by the negli- 
 gence of the carrier, but is obliged to resort to a cross action. Bellamy v. Eussell, 2 
 Show. 167 ; Bommann v. Tooke, 1 Camp. 377 ; Shields v. Davis, 6 Taunt. 65, 4 
 Camp. 119. In Gibson v. Sturge, 10 Exch. 622, 29 Eng. L. & Eq. 460, 466, the court 
 said : " It is clear, according to the general law on the subject, that the circumstance 
 •of the wheat being damaged, does not at all affect the right of the plaintiffs to freight." 
 The reason that the shipper is obliged to resort to a cross action, is owing to the Eng- 
 lish statutes of set-off, (2 Geo. II. c. 22, § 15, and 8 Geo. II. c. 24, § 4,) which do not 
 tillow a claim of this natitre to be offsetted. In this country, however, the statutes of 
 set-off in the various States are generally of a moi-e liberal nature, and the shipper has 
 therefore been allowed to set up in defence, in the nature of a set-off, the damage done 
 to the goods by the carrier. And Lord Campbell, C. J., in Thompson v. Gillespy, 
 5 Ellis & B. 209, 32 Eng. L. & Eq. 153, says it is a reproach to the legislature that 
 parties have not the means of settling cross claims, except by distinct actions. In 
 those states where the question has not yet arisen, it must be decided, when it is pre- 
 sented by the provisions of the statutes of set-ofi' of the respective states. An ex- 
 amination of these statutes is, however, foreign to the purposes of this work. We 
 shall therefore merely cite the cases where the question has arisen and been de- 
 cided. Scliureman v. Withers, Anthon, 166 ; Ogden v. Coddington, 2 E. D. Smith, 
 317; Hinsdell v. Weed, 5 Denio, 172; Bartram v. M'Kee, 1 Watts, 39; Leech v. 
 Baldwin, 5 AYatts, 446 ; Humphreys v. Eecd, 6 Whart. 435 ; Ewart r. Ken-, 1 Eice, 
 203 ; Ewart v. KeiT, 2 M'MuUan, 141 ; Edwards v. Todd, 1 Scam. 462 ; Ship Eap-
 
 CH. VII.] OF SHIPS AS COMMON CARRIERS. 173 
 
 The great difficulty lies in determining whether the shipTOwner 
 is liable for the damasre or not. 
 
 SECTION V. 
 
 OF SHIPS AS COMMON CARRIERS. 
 
 Ships are often called common carriers; and that they may 
 be so is certain ; but that all ships which carry goods are to be 
 treated as common carriers, cannot be true ; and the language 
 used in relation to this subject is either inaccurate and loose, or 
 is misunderstood because it is not interpreted by a reference to 
 the facts of the case in which it is used. Thus in a leading case 
 on the law of carriers,^ it is intimated that there is no case which 
 makes any distinction between a land and a water carrier. But 
 that cjse related to regular inland navigation. And in an 
 American case,^ the court say, that " a carrier by water, whether 
 by inland navigation or coastwise from port to port, or to and 
 from foreign countries, is a common carrier." But the court can- 
 not mean that every carrier by water is a common carrier, for 
 then there would be a very great difference between land and 
 water carriers. The vessel in that case was a coasting vessel ply- 
 ing between Boston and Philadelphia ; and the court must have 
 meant, such a carrier by water as they were then considering. 
 The true rule undoubtedly is, that one who carries by water, in 
 the same way and on the same terms as a common carrier by 
 land, is also a common carrier; or, in other words, it is not the 
 
 pahannock v. Woodraff, 11 La. Ann. 698; Glover r. Dufoiir, 6 La. Ann. 490; War- 
 ing V. Morse, 7 Ala. .343; Boggs r. Russell, 13 B. Mon. 239. In Snow r. Carruth, 
 U. S. D. C, Mass., 19 Law lleportcr, 198^ it was held by Sprague, J., that damage 
 done to the goods could be set up as a defence to an action brought against a consignee 
 for freight, in admiralty. See also, Bradstreet v. Heron, Abbott, Adm. 209 ; Thatcher 
 r. MeCulloh, Olcott, Adm. 365. And in a subsequent case, in an action for freight, it 
 being proved that the damage done to the goods by the fault of the carrier, exceeded the 
 freight, the libel was dismissed. Be:irse r. Ropes, 19 Law Reporter, 548. See also, 
 Zercga v. Poppe, Abbott, Adm. 397. So if suit is brought for damage done to the 
 goods, freight is to be deducted. See ante, p. 151, note 2. 
 
 1 Trent Navigation Co. v. Wood, 3 Esp. 127. 
 
 2 Hastings v. Pepper, 11 Pick. 41, 43. 
 
 15*
 
 174 ON THE LAW OF SniPPING. [bOOK I 
 
 land or the iraler which determines whether a carrier of goods is 
 a common carrier, but other considerations, which are the same 
 in both cases. 
 
 What, then, are these considerations ? We take a common 
 carrier to be one who offers to carry goods for any person, be- 
 tween certain termini or on a certain route ; and he is bound to 
 carry for all who tender to him goods and the price of carriage, 
 and insures those goods against all loss but that arising from 
 the act of God or the public enemy ; and has a lien on the 
 goods for the price of carriage. These are essentials ; and 
 though any or all of them may certainly be modified, and as we 
 think may be controlled, by express agreement, yet if either of 
 these elements is wanting from the relation of the parties, with- 
 out any such agreement, then we say the carrier is not a com- 
 mon carrier, either by land or by water. 
 
 If we are right in this, no vessel would be a common carrier, 
 that did not ply regularly, alone or in connection with others, on 
 some definite route, or between two certain termini. Njp vessel 
 is therefore a common carrier unless she be what is commonly 
 called a packet, or sail in a packet line. All general ships would 
 be excluded ; and all vessels under steam or canvas, on lakes or 
 rivers, which are like general ships ; for they would be as a pri- 
 vate or casual carrier by land, and would be no more a common 
 carrier because on the water. Then, if we allowed another essen- 
 tial element, — the obligation to carry for all who offer, — to 
 exist in the case of regular packets, which might be doubted, it 
 can hardly be supposed that every owner of a vessel put up as 
 a general ship, loses all right of refusal or choice of goods or 
 shippers, unless the commodities offered are either dangerous or 
 unusual. And on the whole, while we admit that our lake and 
 river vessels which run in regular lines may be common carriers, 
 and extend the same rule to our coasting packets, and, also, but 
 with somewhat less certainty, io ocean packets, we should be 
 disposed to stop there, and say that other vessels are private or 
 casual carriers, and not common carriers.^ 
 
 1 It seems to be taken for granted by all the authorities that a general ship is a com- 
 mon carrier, and liable as such, whether a bill of lading is given or not. The precise 
 question, however, has never been decided in any reported case, and we cannot but 
 1 believe that, when it docs arise, the dicta of the judges and text writers will be disre-
 
 en. vil] of ships as commox carriers. 175' 
 
 This question, however, is of less practical importance, be- 
 cause, if they are common carriers, the modification of their 
 
 garded, and the subject receive that investigation which, from its importance, it 
 deserves. It has been held, from tlie earliest times, that a common carrier by water 
 has imposed ou him the same liabilities as a common carrier by land, and that the 
 master of a vessel can be sued as well as the owners. Morse v. Slue, T. llaym. 220, 
 Ventris, 238, 2 Lev. 69; Rich v. Knceland, Croke Jac. 330, Hob. 17; Boson v. 
 Sandford, 2 Salk. 440, 1 Show. 29, 101, 3 Lev. 258, and Carth. .58 ; Goff v. Clinkard, 
 cited in 1 Wilson, 282. Mr. Justice aSVo?t/, in his treatise on Bailments, § .501, speaks 
 of vessels employed in the coasting trade, or in foreign trade, for all persons otfering 
 goods for the port of destination, as general ships. The language of the court in 
 Allen V. Sewall, 2 Wend. 327, and 6 Wend. 335, is even more loose than this. On p. 
 343, Savcifje, C. J., calls a steamboat plying regularly between New York and Albany, 
 a general ship. Now, if such a vessel is a general ship, then a general ship is a com- 
 mon carrier; but a general sliip is something very different from this, and from con- 
 founding the two the difficulty in a great measure has arisen. It cannot however be 
 denied that there are dicta to be found which cannot thus be explained. Thus ia 
 Laveroni v. Drury, 8 Exch. 166, 170, 16 Eng. L. &, Eq. 510, Pollock; C. B., said: 
 • " By the law of England the master and owner of a general ship are common carriers 
 for hire, and responsible as such. This, according to the well-known rule, renders 
 them liable for every damage which occurs during the voyage, except that caused by 
 the act of God, or the Queen's enemies." He then says they may limit their liabil- 
 ity by the bill of lading, which is then the evidence of the contract made between 
 the parties. In Clark i>. Barnwell, 12 How. 272, the vessel was a general ship ;. I)ut a 
 bill of lading was given. On p. 280, the court sjieak ef the master and owners as 
 common carriers. See also the remarks of Mr. Justice Stori/ in King v. Shepherd, 
 3 Story, 349 ; also Kemp v. Coughtry, 11 Johns. 107. In the following cases packets 
 were held to be common carriers. Hyde v. Trent & Mersey Nav. Co. 5 T. K. 389 ; 
 Trent Nav. Co. v. Wood, 3 Esp. 127 ; Hastings v. Pepper, 11 Pick. 41 ; Elliott v. 
 Rossell, 10 Johns. 1 ; Kemp v. Coughtry, 11 Johns. 107 ; Colt v. M'Mcchen, 6 Johns. 
 160; The Schooner Peeside, 2 Sumner, 567 ; Crosby y. Fitch, 12 Conn. 410 ; M'Clures 
 V. Hammond, 1 Bay, 99; Williams v. Grant, 1 Conn. 487 ; Mershon v. Hobcnsack, 2 
 Zabris. 372. In Oakey v. Russell, 18 Mart. La. 58, goods were shipped from New 
 York to New Orleans. It does not appear whether the vessel was a packet or not, or 
 whether a bill of lading was given. Tlie defendants were held liable as common car- 
 riers. Parker v. Flagg, 26 Maine, 181, is a similar case. It was admitted that the 
 defendants were common carriers. The facts are not fully given in the report of the 
 case. In the following cases it does not appear whether the vessel was a packet or not, 
 but a bill of lading was given. King i\ Shepherd, 3 Story, 349 ; Watkinson v. 
 Laughton, 8 Johns. 213; Ferguson r. Cappeau, 6 Harris & J. 394. It is well settled 
 that steamboats wliicli ply regularly from place to place are liable as common carriers. 
 The Huntress, Daveis, 82 ; Citiy.ens Bank v. Nant. Steamboat Co. 2 Story, 16; Jcncks 
 V. Coleman, 2 Sumner, 221 ; Gilmore v. Carman, 1 Sm. & M. 279; M'Grcgor v. Kil- 
 gore, 6 Ohio, 358; Mc Arthur v. Sears, 21 Wend. 190; Dunscth r. Wade, 2 Scam. 
 285 ; Hart v. Allen, 2 Watts, 114 ; Pardee r. Drew, 25 Wend. 459 ; Allen v. Sewall, 
 2 Wend. 327 ; Sewall v. Allen, 6 Wend. 335; Harrington v. M'Shane, 2 Watts, 443; 
 Porterfield t'. Humphreys, 8 Humph. 497 ; Hale i\ N. J. Steam Nav. Co. 15 Conn. 
 539; Singleton v. Ililliard, 1 Strol). 203; Orange Bank v. Brown, 3 Wend. 158; 
 New Jersey Steam Nav. Co. v. Merchants Bank, 6 How. 344 ; Beunett v. Filyaw, 1
 
 176 ON THE LAW OF SHIPPING. [BOOK I. 
 
 liability by bills of lading is undoubtedly valid, and nearly all 
 
 rior. 403 ; Charleston & Col. Steamboat Co. v. Bason, Harper, 262 ; Jones v. Pitcher, 
 3 Stew. & P. 135; Swindler v. Hilliard, 2 Rich. 286; Benett v. The Peninsular & 
 Oriental Steamboat Co. 6 C. B. 775. Steam tow-boats are not however generally 
 considered common carriers in respect to the boats which they have in tow. Caton v. 
 Rumncy, 13 Wend. 387 ; Alexander v. Greene, 3 Hill, 1. This case was reversed on 
 appeal, 7 Hill, 533. In a subsequent case in the same State, the court of appeals 
 pronounced the decision in 7 Hill, 533, not to be law. Mr. Justice Bronson said : " It 
 is true that the judgment in Alexander v. Greene was reversed by the court of errors. 
 But what particular point or principle of law was decided by the court, or what a 
 majority of the members thought upon any particular question of law no one can tell." 
 Wells V. Steam Nav. Co. 2 Comst. 204. See also, Penn., Del., & Md. Nav. Co. v. 
 Dandridge, 8 Gill & J. 248; Leonard v. Hendrickson, 18 Penn. State, 40; Abbey v. 
 The R. L. Stevens, U. S. D. C, N. Y., 21 Law Reporter, 41. In Louisiana it is 
 held that tow-boats are common can-iers. Smith v. Pierce, 1 La. 349 ; Adams v. New 
 Orleans Steamboat Co. 11 La. 46. See also the opinion of Mr. Justice Kane, in Van- 
 derslicc v. The Steam Tow-boat Superior, 13 Law Reporter, 399. The reasoning of 
 the learned judge in this case is worthy of a careful examination, as it furnishes a 
 very strong argument in favor of the doctrine of holding tow-boats liable as common 
 carriers. When the case came before the circuit court, Grier, J., said, that he could 
 not assent to the doctrine that tow-boats were common carriers. Where the tug and 
 boats belonged to the same persons, and goods were shipped under a bill of lading, 
 the owners of the tug were held liable as common earners. Sprowl v. Kellar, 4 Stew. 
 & P. ,382. Canal boatmen, and those on rivers, are held to be common earners. Pul- 
 ler V. Bradley, 25 Penn. State, 120; Spencer v. Daggett, 2 Vt. 92 ; Arnold v. Halen- 
 bake, 5 Wend. 33; De Mott v. Laraway, 14 Wend. 225; Parsons v. Hardy, 14 
 Wend. 215; Humphreys v. Reed, 6 Whart. 435; Bowman v. Teall, 23 Wend. 306. 
 In Eveleigh v. Sylvester, 2 Brev. 178, it was said that the doctrine of common car- 
 riers did not apply with full force to boats on the rivers, but this doctrine does not 
 seem to have been followed. In Lengsfield v. Jones, 1 1 La. Ann. 624, it was held that, 
 under a bill of lading in the ordinary form, a flat-boat was liable as a common carrier. 
 See, also, Harrington v. Lyles, 2 Nott & McC. 88 ; Gordon v. Buchanan, 5 Yerg. 71 ; 
 Turney v. Wilson, 7 Id. 340. In regard to feiTymen it was held in Walker v. Jackson, 
 10 M. & W. 161, that they were not generally common carriers, though a usage might be 
 shown to that efitct. In this country, however, a ferryman is generally considered a 
 common carrier. Cook v. Gourdin, 2 Nott & McC. 19; Babcock v. Herbert, 3 Ala. 
 392 ; Smith v. Seward, 3 Barr, 342 ; Pomeroy v. Donaldson, 5 Mo. 36 ; Cohen v. 
 Hume, 1 McCord, 439 ; Littlejohn v. Jones, 2 M'MuUan, 365 ; Rutherford v. M'Gowen, 
 1 Nott & McC. 17; Wilson v. Hamilton, 4 Ohio State, 722; Albright v. Penn, 14 
 Texas, 290; Fisher v. Clisbee, 12 111. 344. In all the cases cited, where the owner or 
 master has been held liable as a common carrier, his occupation has been to carry for 
 every one who should offer him goods for carriage, and where this has been his usual 
 employment. And it is a well-settled principle that if a person on land makes a 
 contract to cany goods, when it is not his usual custom so to do, he cannot be held as 
 a common carrier. Fish i'. Chapman, 2 Kelly, 349 ; Samms v. Stewart, 20 Ohio, 69. 
 See also. Fuller v. Bradley, 25 Penn. State, 120. Now if we apply the rule that there 
 is no difference between carriers on land and carriers by water, a general ship cannot 
 be considered as a common carrier, for "the contract for the conveyance of merchan- 
 dise in a general ship," as defined by Lord Tenterden (Abbott on Ship. 319), "is that
 
 en. VII.] OF SHIPS AS COMMON CARRIEIIS. 177 
 
 the carriage of goods by water is now regulated by bills of 
 lading.^ 
 
 by which the master and owners of a ship destined on a particular voyage, engage 
 separately with various merchants unconnected with each otlier, to convey their re- 
 spective goods to the place of the ship's destination." In Lane v. Cotton, 12 Mod. 
 472, 484, it was said that many actions have been maintained against carriers for 
 refusing to take goods, thougli the eases were not reported. See also, Jackson ?;. 
 Rogers, 2 Show. 327 ; Riley r. Home, 5 Bing. 217 ; Harris v. Packwood, 3 Taunt. 264, 
 272, per Laurence, J. ; Hollistcr v. Nowlcn, 19 Wend. 234, 239 ; Edwards v. Shcrratt, 
 1 East, 604 ; Batson v. Donovan, 4 B. & Aid. 21,32; Elsee v. Gatward, 5 T. R. 143; 
 Pish t'. Chapman, 2 Kelly, 349 ; Jencks v. Coleman, 2 Sumner, 221 ; Dwiglit v. Brews- 
 ter, 1 Pick. 50 ; Bennett v. Button, 10 N. H. 481. And, as it is by no means unusual 
 for the master or owner of a general ship to refuse to take the goods of all who offer, 
 the question will probably come up in this way. Suppose, for instance, a merchant 
 has a quantity of merchandise which he wishes to send to a foreign port, he therefore 
 charters a vessel, but having room to spare, puts up part of the vessel as a general 
 ship. It would be for his interest that no goods of the same description as his should 
 be taken in his vessel. If any were offered we think he clearly would not be bound to 
 take them, and if not, he should not be considered a common earner. 
 
 1 Tims in Pope v. Nickerson, 3 Story, 46.5, 473, Mr. Justice Story said : " Whether 
 the schooner was a common carrier, that is, a general carrier vessel, whose mere 
 employment was to take goods on board for hire for any persons whatever, or whether 
 she was simply a carrier vessel employed on the present voyage pro hac vice, has 
 been much discussed at the bar. But in my judgment nothing docs, in this case, 
 turn upon any distinction between the cases ; for under the bills of lading, precisely 
 the same obligations attach to the owners and the master in regard to the shippers, 
 whether she was a general, or common carrier, or simply a carrier pro hac vice. The 
 bills of lading ascertain, and fix, and control the liability, and the exceptions therein 
 contained cover the usual risks, not taken by the owners." The power of a carrier to 
 limit or increase his liability by a special contract was early recognized in England. 
 But that he could make sucli a contract by a general notice, brought home to the 
 knowledge of the party, is a doctrine of much later origin. Mention is first made of it 
 by Mr. Justice Binroiyh, in Smith v. Ilorne, 8 Taunt. 144. He says : " The doctrine 
 of notice was never known until the case of Forward v. Pittard, 1 T. R. 27, which I 
 argued many years ago." The case referred to was decided in 1785, and as reported 
 does not mention the sul)ject of notice. It was first held that he might thus limit his 
 responsibility in Nidiolsou v. Willan, 5 East, 507. See also, Maving v. Todd, 1 Stark. 
 72; Leeson v. Holt, 1 Stark. 186; Evans v. Soule, 2 M. & S. 1 ; Ellis v. Turner, 8 T. 
 R. 531. This question has been put to rest in England by the Carrier's Act of 2 
 Geo. IV., and 1 Will. IV. c. 68. In this country the subject has been the theme of 
 fruitful investigation and research. It has generally been held that such a notice is of 
 no avail even though brought home to the knowledge of the party. Ilollistcr v. Now- 
 len, 19 Wend. 234 ; Cole v. Goodwin, id. 251 ; Camden & Amboy Railroad Co. v. Bel- 
 knap, 21 ,Wcnd. 354 ; Clark v. Faxton, id. 153 ; Dorr v. N.J. Steam. Nav. Co. 1 Kern. 
 485; Farmers & Mechanics Bank v. Champlain Transp. Co. 23 Vt. 186; Kimball v. 
 Rutland & Burlington Railroad Co. 26 Vt. 247 ; Moses v. Boston & Maine Railroad, 
 4 Foster, 71; Jones v. Voorhces, 10 Ohio, 145; Hale r. N. J. Steam Nav. Co. 15 
 Conn. 539 ; Logan i'. The Pontchartrain Railroad Co. 11 Rob. La. 24 ; Slocum v. Fair- 
 child, 7 Hill, 292 ; N. J. Steam Nav. Co. v. IVIcrch. Bank, 6 How. 344, 382. Sec also, 
 Thomas v. Boston & Providence Railroad Co. 10 iMet. 472. In some cases, however,
 
 178 OJf THE LAW OF SHIPPING. [eOOK I. 
 
 The " dangers of the seas " are usually excepted in these 
 bills ; if the words are, " perils, or dangers of the river, or of 
 
 it has been held, that if the notice is brought home to the knowledge of the party, he 
 will be presumed to have contracted with reference to it, as in England, and the notice 
 therefore will be binding. Bean v. Green, 12 Me. 422 ; Sager v. Portsmouth, S. &. P. 
 Railroad Co. 31 Me. 228 ; Camden & Amboy Railroad Co. v. Baldauf, IG Penn. 
 State, 67 ; Atwood v. The Reliance Transp. Co. 9 Watts, 87 ; Laing v. Colder, 8 
 Barr, 479; Barney v. Prentiss, 4 Harris & J. 317. But, however the law may be as 
 to the effect of a notice, it is well settled that a carrier may enlarge or diminish his 
 liability by a special contract, and if he is not a common earner may assume the risks, 
 and be liable as one. Thus, in' Fish v. Chapman, 2 Kelly, 349, a person who under- 
 took to cany goods and deliver them in good order and condition, unavoidable acci- 
 dents only excepted, was held liable as a common carrier. In Gaither v. Bamet, 2 
 Brev. 488, common carriers, who undertook to carry goods safely, were not exonerated 
 by loss from unavoidable accidents. See also, Harmony v. Bingham, 2 Kern. 99. But 
 see The Casco, Daveis, 184. The general proposition, that a carrier can make a 
 special contract, was assumed as law in England in Kenrig v. Eggleston, Aleyn, 93 ; 
 Southcote's case, 4 Coke, 84; Gibbon v. Paynton, 4 Burr. 2298, 2301, per Yates, J. ; 
 Catlcy V. Wintringham, Peake, 150. See also, Nicholson v. Willan, 5 East, 507 ; 
 Harris v. Packwood, 2 Taunt. 264; Riley v. Home, 5 Bing. 217. The American au- 
 thorities generally support the proposition. Atwood v. Reliance Transp. Co. 9 Watts, 
 87; Hollister v. Nowlen, 19 Wend. 234, 246; Beckman v. Shouse, 5 Rawle, 179; 
 N. J. Steam Nav. Co. v. Merch. Bank, 6 How. 344, 382 ; Swindler v. Hilliard, 2 
 Rich. 286, 302 ; Gordon v. Little, 8 S. & R. 533 ; Farmers and Mech. Bank v. Cham- 
 plain Transp. Co. 23 Yt. 186 ; Kimball v. Rutland & Burlington Railroad Co. 26 Vt. 
 247 ; Davidson v. Graham, 2 Ohio State, 131 ; Graham v. Davis, 4 Ohio State, 362 ; 
 Bentley v. Bustard, 16 B. Mon. 643; Baker v. Brinson, 9 Rich. 201. In Gould r. 
 Hill, 2 Hill, 623, a memorandum was given by the carrier stating the receipt of the 
 goods, and adding, "which we promise to forward, dangers of fire, etc. excepted." 
 The court held the carrier liable, although the goods were destroyed by fire, on the 
 ground that such a special contract was against the policy of the law and could not 
 be made. In the following cases it was also doubted whether such a contract would 
 be of any effect. Fish v. Chapman, 2 Kell}', 349 ; Hale v. N. J. Steam Nav. Co. 
 15 Conn. 539. And in Wells v. Steam Nav. Co. 2 Comst. 204, 209, Branson, J., speaks 
 of the question as being still, perhaps, a debatable one. Such a position, however, 
 cannot be supported on any principle of law whatsoever ; and Gould v. Hill has been 
 overruled by several recent cases in New York. Parsons v. Monteath, 13 Barb. 353 ; 
 Moore v. Evans, 14 Barb. 524; Mercantile Mutual Ins. Co. v. Chase, 1 E. D. Smith, 
 115 ; Dorr v. N. J. Steam Nav. Co. 4 Sandf. 136, 1 Kern. 485. See also, Stoddard v. 
 Long Island Railroad Co. 5 Sandf. 180. In three of these cases bills of lading were 
 given, which contained exceptions against fire. As the goods were destroyed by fire, 
 the courts held the carriers not responsible. It was however held by the supreme 
 court of the state of Michigan, in the recent case of Michigan Central Railroad Co. v. 
 Ward, 2 Mich. 538, that as the plaintiffs were common cariiers by their charter, which 
 was in the nature of a contract between them and the state, permanently binding upon 
 each, and the principal engagement on their part being to become and remain common 
 carriers, their liability as common carriers became irrevocably fixed ; and therefore 
 they could not alter or modifS- this liability by any stipulation or contract. In Schief- 
 felin r. Harvey, 6 Johns. 170, 180, Tan Ness, J., speaking of a special contract, said : " It 
 ought to be cleai", and capable of but one construction, unequivocally and necessarily
 
 CH. VII.] OF SHIPS AS COMMON CARRIERS. 179 
 
 the lakes, or of water, or of navigation," all which are used in 
 different parts of this country, the meaning and effect is the 
 same as of " dangers of the seas." ^ In one case the words 
 "dangers of the roads" in a bill of lading were held to mean, 
 either dangers peculiar to marine roads in which vessels lie at 
 anchor, or those which are caused immediately by roads on land, 
 as the overturning of carriages in rough and precipitous places.^ 
 
 evincing that such was the intention of both the parties." And in Memman v. Brig 
 May Queen, I Newh. Adm. 464, wliere the following was stamped on a bill of lading, 
 " Goods to be receipted for on the levee ; not accountable for rust, breakage, leakage, 
 cooperage ; weight and contents unknown," the court held that this was not such a 
 certain and specific contract between the parties as left no room for controversy. It has 
 always been the settled doctrine in this country, that, though a carrier could make a 
 special contract, yet he could not therel)y be exempt from loss arising from his o^sti 
 negligence. N. J. Steam Nav. Co. r. Merchants Bank, 6 How. 144 ; Laing i\ Colder, 8 
 Barr, 479 ; Dorr v. Steam Nav. Co. 4 Sandf. 1.3G ; Sagcr v. The Portsmouth, S. & I'. 
 Railroad Co. 31 Me. 228 ; Slocum v. Fairchild, 7 Hill, 292 ; Camden & Amboy Kail- 
 road Co. V. Baldauf, 16 Penn. State, 67 ; Reno v. Hogan, 12 B. Mon. 63; Swindler v. 
 Hilliard, 2 Rich. 286; Davidson v. Graham, 2 Ohio State, 131 ; Graham v. Davis, 4 
 Ohio State, 362 ; Baker ?;. Brinson, 9 Rich. 201 ; Stoddard v. Long Island Railroad 
 Co. 5 Sandf. 180. The earlier cases in England are also to the same effect. Smith r. 
 Home, 8 Taunt. 144 ; Beck v. Evans, 16 East, 244 ; Duff v. Budd, 3 Brod. & B. 177 ; 
 Brooke v. Pickwick, 4 Bing. 218 ; Bodcnham c. Bennett, 4 Price, 31 ; Birkctt i: Wil- 
 lan, 2 B. & Aid. 356 ; Batson v. Donovan, 4 B. & Aid. 21 ; Garnett v. Willan, 5 B. & 
 Aid. 53 ; Sleat v. Fagg, id. 342 ; Wright i-. Snell, id. 350 ; Wyld v. Pickford, 8 M. & 
 W. 443 ; Lyon v. Mells, 5 East, 428. In several late cases in England it has however 
 been lield that the carrier may make any contract he pleases. And it has been decided 
 that where a person sent cattle by railroad, taking all risk of conveyance, the caiTier 
 would not be liable, tliough the cattle were lost by reason of the car in which they were 
 put being utterly unfit for the ])urpose. Chijjpendalc v. Lancashire, etc. liailway Co. 
 21 Law J. (n. 8.) Q. B. 22, 7 Eng. L. & E(i. 395. See also, Shaw v. York & North 
 Midland Railway Co. 13 Q. B. 347 ; Carr v. Lancashire & Yorkshire Railway Co. 
 7 Exch. 707, 14 Eng. L. & Eq. 340; Austin v. M. S. & L. R. Co. 10 C. B. 4.54, 11 
 Eng. L. & Eq. 506 ; Morville v. Great Northern Railway Co. 21 Law J. (n. s.) Q. B. 
 319, 10 Eng. L. & Eq. 366. 
 
 * In Jones v. Pitcher, 3 Stew. & P. 135, 176, the court said : " The perils of tlic sea 
 and of the river are so nearly allied that they may be considered the same, exce|)t in 
 the fev,' instances in which the reason differs." See also, Turney v. Wilson, 7 Ycrg. 340 ; 
 Eaircbild v. Slocum, 19 Wend. 329 ; Gordon v. Little, 8 S. & R. 533 ; Whitesides v. 
 Russell, 8 Watts & S. 44 ; McGregor v. Kilgore, 6 Ohio, 143; Dunscth v. Wade, 2 
 Scam. 285; Johnson i\ Friar, 4 Ycrg. 48; Gordon v. Buchanan, 5 Yerg. 71 ; Wil- 
 liams V. Branson, 1 Muri)h. 417; Gilniore r. Carman, 1 Sm. & M. 279; Bcntlcy r. 
 Bustard, 16 ]}. Mon. 643, 681. 
 
 2De Rothschild v. Royal Mail Steam-Packet Co. 7 Exch. 734, 14 Eng. L. & Eq. 
 327. Tlie bill of lading in this case covered also land carriage, and it was held that 
 theft without violence while the goods were being transported by railway was not 
 ^yithin the exception.
 
 180 ON TUE LAW OF SHIPPING. [bOOK I. 
 
 Abbott, in his treatise on sliipj)ing,^ says, that in consequence of 
 the decision in Smith v. Shepherd, decided in England in 1795, 
 (in which case, however, there does not seem to have been any 
 bill of lading,) the exception in common use in England is, 
 " The act of God, the king's enemies, fire, and all and every 
 other dangers and accidents of the seas, rivers, and navigation, 
 of whatever nature and kind soever, excepted." The purpose 
 of this alteration undoubtedly was to restore the bill of lading 
 to the meaning and operation which it was supposed to have 
 had before that case. We think, however, though this case 
 (which we shall consider more fully in another connection) be 
 law, that the term " dangers of the seas " includes substantially 
 all that is comprehended in the latter part of the new phrase. 
 
 The courts sometimes seem to identify "dangers of the seas" 
 with the " act of God," as meaning precisely the same thing.^ 
 But this is certainly erroneous. Any act of God by means of 
 which a vessel or her cargo was destroyed or damaged at sea, 
 could hardly fail from being a peril of the sea. But there are 
 a great many causes of damage for which the ship is not re- 
 sponsible, that are not acts of God.'^ When, by the ancient 
 rule of the common law, the common carrier was held to in- 
 sure against all losses but those caused by the " act of God or 
 of the king's enemies," the reason and the meaning were, to 
 
 1 Page 322. 
 • 2 Fish V. Chapman, 2 Kelly, 349, 356, 357 ; Crosby v. Fitch, 12 Conn. 410 ; Neal v. 
 Saunderson, 2 Sm. & Mar. 572 ; Walpole v. Bridges, 5 Blackf. 222 ; Williams v. 
 Grant, 1 Conn. 487; Eeady v. Steamboat Highland Mary, 17 Mo. 461, 20 id. 264. 
 
 3 The distinction between "an act of God" and "a peril of the sea," is clearly 
 defined in McArthur v. Sears, 21 AVend. 190, 198. The court say: "There is a con- 
 siderable class of cases arising upon exceptions in bills of lading, of the ' perils of the 
 sea,' where in addition to losses from natural causes, those arising from the acts of 
 third persons are sometimes allowed to come within the terms. Such are losses by 
 robbery of pirates. Pickering v. Barklcy, Style, 132; Buller v. Fisher, Abbott on 
 Ship. 385. But these words arc evidently of broader compass than the words ' acts 
 of God,' and although it was supposed by a very learned judge that they were but 
 commensurate, {Gould, J., in Williams v. Grant, 1 Conn. 487, 492,) and therefore 
 whatever was a peril of the sea would excuse the carrier acting under his general lia- 
 bility, yet it is evident from the cases we have considered that they are not always so." 
 See also, The Schooner Reeside, 2 Sumner, 567 ; Gordon v. Buchanan, 5 Ycrg. 71 ; 
 Plaistcd V. Boston & Kennebec Steam Nav. Co. 27 Me. 132; Proprietors of Trent &, 
 Mersey Nav. Co. v. Wood, 3 Esp. 127, 4 Doug. 287, per Lord Mansfield, C. J. 
 
 The earliest mention of the perils of the seas in a charter-party is in Pickering v. 
 Barkley, Style, 132, per Kent, C J., in Elliott v. Rossell, 10 Johns. 1.
 
 CH. VII.] OF SHIPS AS COMMON CARRIERS. 181 
 
 hold him responsible if there were any possibility of his having 
 any agency in the loss. And therefore the phrase "the king's 
 enemies," was ruled not to include the violence of a mob, or riot, 
 or civil commotion of any nature ; but only the act of an enemy 
 in public war;' which there was obviously no actual possibility 
 of the carrier having caused ; or, in case of a carrier by water, 
 robbery by pirates, who are the universal enemies of mankind.^ 
 But for embezzlements on board by the crew,^ or by other per- 
 sons not pirates, the owners are liable, although there is no neg- 
 ligence on their part.* And their liability does not cease on the 
 vessel being wrecked unless the property perishes in the wreck.^ 
 So the act of God is limited, as we conceive, to causes in which 
 no man has any agency whatever ; because it was intended 
 never to raise, in the case of the common carrier, the dangerous 
 and difficult question whether he actually had any agency in 
 causing the loss ; for, if this were possible^ he should be held.*^ 
 
 1 Fonvanl v. Tittard, 1 T. R. 27, 34, per Lord Mansfield, C. J. ; Story on Bail- 
 ments, § 25. 
 
 2 Pickering v. Barkley, 2 Eoll. Ab. 248, Style, 132. 
 
 ^ Schieffclin v. Harvey, 6 Johns. 170 ; Watkinson v. Laugliton, 8 Johns. 213. 
 
 * In Morse v. Slue, 1 Vent. 190, 238, and in Barclay v. Cuculla y Gana, 3 Doug. 
 389, the master was held liable for the loss of goods occasioned by a forcible robbery 
 while the ship was lying in the river. In Schieftelin v. Harvey, 6 Johns. 170, which 
 was an action against the owner of a vessel, on a bill of lading, it a])peared that the 
 vessel arrived at the port of destination with the goods on board, but they not being 
 admissible, it was agreed between the master and tlie consignees that the goods should 
 remain on board, and be returned to the owner when the vessel went back. On the 
 goods being returned it was found tliat a portion had been taken, and the court held 
 the defendant liable, whether tlie loss had been caused by the embezzlement of the crew 
 or by the custom-house officers at the port of destination. In King r. Shepherd, 3 
 Story, 349, a robbery from the ship by salvors was held to be a loss for wliich the own- 
 ers were liable. 
 
 '•> King r. Shcijherd, 3 Story, 349. But the rule would })robably be different now 
 under the Act of 1851, 9 U. S. Stats, at Large, 633. See Wattson v. Marks, 2 Am. 
 Law Register, 157. 
 
 " The Zenobia, Abbott, Adm. 80. Fish v. Chapman, 2 Kelly, 345, 356, 357 ; Rob- 
 ertson V. Kennedy, 2 Dana, 430 ; Williams v. Grant, 1 Conn. 487 ; Bell r. Reed, 4 
 Binn. 127; Gordon v. Buchanan, 5 Yerg. 71 ; Jones v. Pitcher, 3 Stew. & P. 135; 
 Sprowl V. Kellar, \ Stew. & P. 382 ; Trent & Mersey Nav. Co. v. Wood, 4 Doug. 
 287, 290; Forward v. Pittard, 1 T. R. 27. The act of God must l)e the proximate 
 cause of the loss. Tiierefore where a severe storm caused an unusually low tide, and 
 in consetpicnce thereof the carrier's barge, struck against a timber which projected from 
 the wharf, which in ordinary tides was too low to do any injury, the carrier was held 
 liable. New Brunswick S. B. Co. v. Tiers, 4 Zabris. 697. See also, Oakley v. Steam- 
 Packet Co. 11 Exch. 618, 34 Eng. L. & Eq. 530 ; Smith v. Shepherd, Abbott on Ship-; 
 VOL. L 16
 
 182 ON TIIE LAW OF SHIPPING. [bOOK I. 
 
 The cases are frequent in practice, and not unfrequent in the 
 books, in which " dangers of the seas " has a very different mean- 
 ing from "the act of God." Thus, a common carrier would 
 be responsible for goods burned in his waggon, if they were de- 
 stroyed in a conflagration which began at a distance by the act 
 of an incendiary, and extended to the shed or barn in which he 
 had put them, although he could prove that he had nothing to 
 do with the fire, and did all that the most careful and skilful man 
 could do to save his goods.^ And if such a conflagration reaches 
 a ship moored at a wharf and destroys her, the shipper of goods 
 destroyed in the vessel would now look to the ship-owner. If 
 the ship-owner were a common carrier, then the shipper would 
 look to him under the general law of common carriers. If he 
 were not a common carrier, and was bound only by a bill of 
 lading, then he would be liable, provided fire be not " a peril of 
 the seas." Usually there is now in most bills of lading an ex- 
 press exception against fire. 
 
 The simple question whether a loss by fire is a loss by a peril 
 of the sea, which one would suppose must have been settled 
 long since, is scarcely determined now. But the cases we give 
 in the notes tend strongly and perhaps decidedly to the conclu- 
 sion, that fire is 7iot a peril of the sea, as between the ship-owner 
 and shipper of goods.^ 
 
 ping, 383. So if an iron vessel runs on sliore, owing to her compass not being suffi- 
 ciently protected to traverse correctly, this is not a peril of the sea, or an act of God, 
 which will exonerate the carrier. Bazin v. Eichardsou, V. S. C. C, 20 Law Reporter, 
 129, 5 Am. Law Register, 459. 
 
 1 Forward v. Pittard, 1 T. R. 27. 
 
 ^ If a ship is a common carrier, the same rules Avould be applicable, as in the. case of 
 a carrier on land, and therefore an owner of a vessel would be liable for a loss caused 
 by an accidental fire, unless there was something in the bill of lading, the special con- 
 tract between the parties, which exempted him from this liability. And, if a ship is 
 not a common carrier, we think it equally clear that the owner would not be liable un- 
 less a bill of lading were given. The question then arises whether a fire, which is not 
 caused by lightning, can be said to be either " an act of God" or "a peril of the sea." 
 That it is not "an act of God " is settled in the following cases : Hamngton r. IM'Shane, 
 2 "Watts, 443; Hale v. N. J. Steam Nav. Co. 15 Conn. 539; Singleton v. Billiard, 1 
 Strob. 203; Parker v. Flagg, 26 Maine, 181 ; Patton v. Magrath, Dudley, S. C. 
 159. 
 
 Is fire "a peril of the sea," as between the shipper and ship-owner 1 It is so asserted 
 as well-settled law in Plaisted v. Boston & Kennebec S. Nav. Co. 27 Maine, 132, citing 
 Marsh, on Ins. c. 42, § 3, and Hale v. N. J. Steam Nav. Co. 15 Conn. 539. In the
 
 CH. VII.] OP SHIPS AS COMMON CARRIERS. 183 
 
 So, too, if a man rolled a rock into the shallow channel of a 
 river, and the first vessel that came along, having no cause to 
 
 first place, in the case of Plaisted v. Boston & Kennebec S. Nav. Co. the goods were 
 damaged by a collision, and not by fire, and the expression of opinion is therefore 
 obiter, and moreover the authorities cited do not support it. ^Marshall merely says that 
 a policy of insurance covers a loss occasioned by an accidental fire. In Hale v. Steam 
 Nav. Co. tlie only point decided was, that an accidental fire was not the act of God. 
 No bill of lading was given. In Gilmore v. Carman, 1 Sm. & M. 279, a bill of lading 
 was signed containing an exception against dangers of the river. Held, that this meant 
 the same as perils of the seas, and that the carrier was liable for a loss by fire. See 
 also, Morewood v. Pollok, 1 Ellis & B. 743, 18 Eng. L. & Eq. 341 ; N. J. Steam Nav. 
 Co. V. Merch. Bank, 6 How. 344; Garrison v. Memphis Ins. Co. 19 How. 312; Par- 
 sons V. Monteath, 13 Barb. 353; Gould v. Hill, 2 Hill, 623; Merc. Mut. Ins. Co. v. 
 Chase, 1 E. D. Smith, 115; Don- r. N. J. Steam Nav. Co. 4 Sandf 136; Swindler v. 
 Hilliard, 2 Rich. 286. And in Airey v. Merrill, 2 Curtis, C. C. 8, Mr. Justice Curtis 
 held, that under a covenant in a charter-party to restore the vessel to the owners, 
 "dangers of the seas excepted," the charterer was liable for the value of the vessel, in 
 case of its destruction by an accidental fire, originating on board, such fire not being 
 one of the " dangers of the seas " within the exception. The only case in which fire 
 has been held to be a "peril of the sea" is Hunt v. Morris, 6 Mart. La. G76. In 
 Hunters v. Morning Star, Newfoundland Rep. 270, there is a dictum to the same effect. 
 In that case the fire was caused by gross negligence in the construction of the chimney 
 of a steamboat, and the carrier was held liable. In 1 785 a statute was passed in Eng- 
 land providing, " That no owner or owners of any ship or vessel shall be subject or 
 liable to answer for, or make good, to any one or more persons, any loss or damage, 
 which may happen to any goods or merchandise whatsoever, which shall be shipped, 
 taken in, or put on board any such ship or vessel, by reason or means of any fire hap- 
 pening to, or on board tiie said ship or vessel." 26 Geo. 3, c. 86, § 2. In 1851 a 
 statute of similar import was passed in this country. It provided also, that the parties 
 might make any contract they pleased, extending or limiting the liability of the ship- 
 owners, and that the act should not apply to any canal boat, barge, or lighter, or to any 
 vessel of any description whatsoever, used in river or inland navigation. Stat. 1851, 
 c. xliii., 9 U. S. Stats, at Large, 635. In Morewood v. Pollok, 1 Ellis & B. 743, 18 
 Eng. L. & Eq. 341, it was held, that the statute of 26 Geo. 3, c. 8G, applied only to 
 goods on board a vessel, and that the carrier was therefore liable for a loss by fire, 
 while the goods were on lighters, and were being conveyed to the ship for the j)urpose 
 of transportation. But in a late case in New York it has been held that the ship is not 
 liable in such a case under our statute of 1851. Dill v. The Bertram, U. S. D. C, 
 N. Y. But it has been held, by Mr. Justice Curtis, in the United States Circuit Court 
 for the first circuit, on the autliority of Morewood v. Pollok, that the statute does not 
 exonerate the ship for a loss by fire after the goods arc on the wharf, but before they 
 arc delivered. Salmon Falls Co. v. Bark Tangier ; Goddard v. Same ; Pearson v. 
 Same, 21 Law Reporter, 6, 12, and in several cases growing out of the destruction of 
 the sliip Middlesex, April 26, 1855. The cargo was landed on the wharf, but had not 
 been delivered to the consignees when it was consumed by fire. The court held the 
 ship-owners liable. One of these cases may be found, nam. The Ship Middlesex, 21 
 Law Reporter, 14. And in Gatliflfe v. Bourne, 4 Bing. N. C. 314, 5 Scott, 667, 
 Arnold, 120, affirmed in the Exchequer Chamber, 3 Man. & G. 643, and in the House 
 of Lords, 7 Man. & G. 850, it seems to have been taken for granted that the statute
 
 184 ON THE LAW OF SHIPPING. [bOOK I. 
 
 suspect any obstruction, struck upon it, this we should hold as 
 certainly not an act of God, but quite as certainly a " danger of 
 the seas."^ For we think that this phrase includes all the perils 
 of every kind actually connected with navigation, whether man 
 did or did not cause them, wholly or partially, provided it is 
 certain that neither the ship-owner nor the shipmaster was in 
 any fault, and that neither want of care, skill, or endeavor could 
 be imputed to them.^ 
 
 Although the conduct of the master or owner be negligent, 
 yet if the loss occurs from independent causes, the ship-owner 
 is not responsible.^ 
 
 Thus if goods are stowed on deck which should be in the hold, 
 and are washed off in a tempest, although this be the act of God, 
 
 did not apply where the goods were unloaded, but destroyed by fire before delivery to 
 the consignee. 
 
 1 But the sudden shifting of the channel, and the recent introduction of a hidden 
 sawyer or snag are considered, when unknown, as acts of God. Patton i-. Magrath, 
 Dudley, S. C. 159. Nevertheless, the carrier must show, in such a case, that he used 
 due diligence and proper skill to avoid the accident, and that it was unavoidable. 
 Whitcsides ;;. Russell, 8 Watts & S. 44. In Friend v. Woods, 6 Grat. 189, the vessel 
 was injured by running on a bar which had recently been formed, and the goods dam- 
 aged. No bill of lading was given. The court held that, though the defendants were 
 ignorant of its formation, yet, if by human foresight and diligence, it might have been 
 ascertained and avoided, they would be liable. The court said : " The cases in which 
 the carriers have been exonerated from losses occasioned by such obstructions, will, I 
 think, upon examination, be found to be cases in which either the bills of lading con- 
 tained the exception of the perils of the river, or in which that exception has been con- 
 founded with the exception of the act of God." See also, Johnson v. Friar, 4 Yerg. 
 48 ; Gordon v. Buchanan, 5 Yerg. 71 ; Turney v. Wilson, 7 Yerg. 340 ; Everleigh v. 
 Sylvester, 2 Brev. 178; Smyrl v. Niolon, 2 Bailey, 421 ; Faulkner v. Wright, Rice, 
 107; Williams v. Grant, 1 Conn. 487. In Collier v. Valentine, 11 Mo. 299, it was 
 held that negligence was not necessarily imputable, where a boat struck on a known 
 rock or shoal. But this is against the current of authority, as shown by the cases cited 
 above. See Bentley v. Bustard, 16 B. Mon. 643. If a boat attempts to pass, in the 
 night, a point known to be dangerous, it is a question for the jury on all the circum- 
 stances of the case whether such an act was negligence. Ready v. Sleam!)oat High- 
 land Mary, 17 Mo. 461, 20 id. 264. 
 
 2 Mr. Justice Story, in the case of the Schooner Reeside, 2 Sumner, 567, seems to 
 have considered the meaning of the expression doubtful. He says : " The phrase dan- 
 ger of the seas, whether understood in its most limited sense, as importing only a loss 
 by the natural accidents peculiar to that element ; or whether understood in its more 
 extended sense, as including inevitable accidents upon that element, must still, in cither 
 case, be clearly understood to include only such losses as are of an extraordinary 
 nature, or arise from irresistible force, or some overwhelming power, which cannot be 
 guarded against by the ordinary exertions of human skill and prudence." 
 
 3 Sec post, p. 185, n. 3.
 
 en. ^t::.] of ships as comjmon carriers. 185 
 
 yet human default has cooperated, and the ship is responsible ; ^ 
 but if the ship founders in th^ tempest and goes down, she is 
 no more responsible for the goods on deck than for those in the 
 hold. So the master is bound to stow the goods aright, with 
 proper dunnage, etc., and in such arrangement and position as 
 the character of the goods, their liability to break, etc., requires. 
 But though he fail in these respects, and damage happens to the 
 goods thus badly stowed, he is not answerable if he can show 
 that the damage did not happen because they were badly 
 stowed.^ If the loss might have happened without the master's 
 fault, this does not excuse him; but if it must have happened, 
 although he had not been in fault, he is exonerated.^ 
 
 Goods on deck, when jettisoned from necessity, cannot claim 
 contribution in general average by the general law merchant.* 
 And if they are so carried by -agreement with the shipper, he 
 can have no claim against any party for the loss.^ But if car- 
 
 1 The Kebecca, Ware, 188; The Waldo, Daveis, 161 ; Stinson v. Wyman, id. 172; 
 Waring v. Morse, 7 Ala. 343; Dorsey v. Smith, 4 La. 211 ; The Peytona, Ware, 2d 
 ed. 54i, 2 Curtis, C. C. 21 ; Sayward v. Stevens, 3 Gray, 97 ; Gardner v. Smallwood, 
 2 Hayw. N. C. 349. See also, Taunton Copper Co. v. Merch. Ins. Co. 22 Pick. 
 108. 
 
 2 The Brig Casco, Daveis, 184; Hastings v. Pepper, 11 Pick. 41; The Schooner 
 Eeeside, 2 Sumner, 567 ; The Newark, 1 Blatchf. C. C. 203 ; Clark v. Barnwell, 12 
 How. 272; Rich v. Lambert, id. 347. See also, Glover v. Dufour, 6 La. Ann. 490; 
 Bearse v. Ropes, U. S. D. C, Mass., Nov. 1856, 19 Law Reporter, 548. In 
 Baxter v. Leland, Abbott, Adm. 348, 1 Blatchf. C. C. 526, it was held, 'that where 
 there is a well-known usage as to the manner of stowage, and to the placing of differ- 
 ent products together, the shipper, if he wishes his goods stowed in a different manner, 
 must give notice to the master, and if he does not, and his goods are injured in conse- 
 quence of such stowage, the sliip-owner will not be liable. . See also. Lamb v. Park- 
 man, U. S. D. C, Mass., 20 Law Reporter, 186, and ante, p. 170, note 4. It was held in 
 Swainston v. Garrick, Exch. of Pleas, Trin. Term, 1833, 11 Law J. 255, that where a 
 shipper was to send a person to stow the goods, the master would not be liable if they 
 were improperly stowed. See also, Arnold v. Anderson, 2 Yeates, 93. 
 
 3 Thus, in Gardner v. Smallwood, 2 Hayw. N. C. 349, the court said : " Taking a 
 full price and stowing upon deck will subject the owner of the vessel to pay damages, if 
 what is placed on deck be thertbi/ lost, or damaged ; but if that did not occasion the loss, 
 he will be no more liable for damage to that part of the cargo than to the rest." See 
 also, The Waldo, Daveis, 161, 171, per TI are, J. ; and Lawrence v. Minturn, 17 How. 
 100, n. 5, »i/)fl. In Vcrnard r. Hudson, 3 Sumner, 405, it was held, tliat where the 
 goods were shipped on deck without the consent of the owner, but were delivered in 
 good order, the consignee was bound only to pay a deck freight, and JNlr. Justice Stori/ 
 intimated that at common law no freight whatever would Ijc due. 
 
 * Sec post, ch. 9, § 2. 
 
 5 In Lawrence v. Minturn, 17 How. 100, it was held that where iron boilers had been 
 
 16*
 
 186 ON THE LAW OF SHIPPING. [bOOK I. 
 
 ried there withont his consent, and then jettisoned from neces- 
 sity, it should seem that the shipper should claim from the ship- 
 owner what he loses by having no claim for contribution ; for 
 though it was not the fault of the master that the goods were 
 lost, it is his fault that their loss gives no claim for contribution.^ 
 The burden is on the ship-owner to prove that the shipper 
 agreed that the goods should be carried on deck.^ 
 
 We shall treat of this subject again in the chapter on General 
 Average. 
 
 If goods are carried on deck without the consent of the 
 shipper, and are lost by a peril of the seas, the owner will 
 be responsible, although the bill of lading contained a clause 
 excepting the liability of the owner for a loss by perils of the 
 sea. For this exception does not lessen his obligation to carry 
 the goods in the proper and customary manner.^ 
 
 stowed on deck with the consent of the shipper, and were jettisoned by necessity, the 
 owner of the vessel would not be liable. Mr. Justice Curtis, in delivering the opinion 
 of the court, after speaking of the maritime codes, said : " 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 its owner; and they afford very high 
 evidence, of the general and appropriate usages, in this particular, of merchants and 
 ship-owners. Consolato del Mare, par Pardessus, c. 186 ; Ord. de la INIar. Valin, lib. 
 2, tit. 1, art. 12; Code du Com. Mar. par Locre, art. 229, lib. 2, tit. 4, art. 229; 
 Emerigon, ch. 12, sec. 42; Boulay Paty, tome 4, .566, 568." And again : "The ex- 
 tent to which we understand the authorities to go, and the law which we intend to lay 
 down, is this : That if the vessel is sea-worth}' to carry a cargo under deck, and there 
 was no general custom to carry such goods on deck in such a voyage, and the loss is 
 to be attributed solely to the fivct that the goods were on deck, and their owner had 
 consented to their being there, he has no recourse against the master, owners, or vessel, 
 for a jettison rendered necessary for the common safety, by a storm, though that storm 
 in all probability would have produced no injurious effect on the vessel if not thus 
 laden. If the vessel is in itself staunch and sea-worthy, and her inability to resist a 
 •storm arises solely from the position of a part of the cargo on 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 
 sea-worthiness." See also, Smith v. Wright, 1 Caines, 43 ; Dorsey v. Smith, 4 
 La. 211; Hampton v. Brig Thaddeus, 4 Mart. La. 582; Shackleford v. Wilcox, 9 
 La. 33 ; Cram v. Aiken, 13 Maine, 229 ; Sproat v. Donnell, 26 Maine, 185 ; Johnston 
 V. Crane, 1 KeiT, New Brunswick, 356 ; Sayward i'. Stevens, 3 Gray, 97. 
 
 1 The Paragon, Ware, 322 ; Barber v. Brace, 3 Conn. 9 ; Creery v. Holly, 14 Wend. 
 26 ; Gould v. Oliver, 2 Man. & G. 208, 4 Bing. N. C. 134, 2 Scott, N. E. 241. 
 
 2 The Peytona, 2 Curtis, C. C. 21. 
 
 3 The Ecbecca, Ware, 188; The Waldo, Daveis, 161 ; Stinson v. Wyman, Davcis, 
 172 ; Waring v. Morse, 7 Ala. 343. But if no damage results from their being put on 
 deck, the owner of the vessel will not be liable for injury happening from any other
 
 en. VII.] COLLISION. 187 
 
 SECTION VI. 
 
 OF COLLISION. 
 
 Collision is a very common accident in harbors, and not very 
 rare at sea. The rule in this country is, that the party in fault 
 must suffer his own loss and compensate the other party for 
 what loss he may sustain.^ But if neither be in fault, the loss 
 rests where it falls.^ If both are substantially in fault, the los3 
 
 cause, and the sliipper must pay freight. Gardner v. Smallwood, 2 Hayw. N. C. 349 ; 
 Vernard v. Hudson, 3 Sumner, 405. 
 
 1 The Sfioto, Daveis, 359 ; The Woodrop-Sims, 2 Dods. 83 ; Reeves r. Ship Con- 
 stitution, Gilpin, 579 ; The Sappho, 9 Jur. 560. See also, cases infra generally. 
 
 - Wlien a collision takes place by inevitable accident, without blame being imputable 
 to either party, as where it is occasioned by a storm, or any other vis major, the misfor- 
 tune must be borne by the party on wliom it happens to light. In this, the civil law, 
 the common law, and the maritime law of Europe, of England, and of this country, agree. 
 Dig. 9. 2. 9 ; Consulat dc la Mer, par Boucher, 200-203 ; Pardcssus, Droit Com. tome 
 iii. 652 ; The French Code de Commerce, art. 407 ; Valin, Ord. de la Marine, liv. 3, 
 tit. 7, art. 10, vol. 2, p. 177; Emerigon, c. 12, § 14; (see, however, the Laws of Oleron, 
 art. 15, and The Ordinance of Wisbuy, arts. 29, 49, 50, and 65 ; Boulay Paty, Cours de 
 Droit Com. Mar. tit. 12, s. 6, vol. 4, p. 493;) The Woodrop-Sims, 2 Dods. 83; The 
 Celt, 3 Ilagg. Adm. 328, note ; Jameson v. Drinkald, 12 Moore, 148 ; The Catherine of 
 Dover, 2 Hagg. Adm. 145, 154 ; The Shannon and The Placidia, 7 Jur. 380; s. c. 
 nom. Tiie Shaimon, 1 W. Rob. 463 ; Tiie Thornley, 7 Jur. 659 ; The Ebenezer, 2 W. 
 Rob. 206 ; The Itinerant, 2 W. Rob. 236 ; The Scioto, Daveis, 359 ; Reeves v. Ship 
 Constitution, Gilpin, 579 ; Stainback v. Rae, 14 How. 532 ; The Eliza and Abby, 1 
 Blatchf. & H. 435 ; The Moxcy, Abbott, Adm. 73. Sec also. The Ligo, 2 Hagg. 
 Adm. 356 ; Steamboat Co. v. Whilldin, 4 Ilarring. Del. 228 ; Cummins v. Spruance, 
 4 Ilarring. Del. 315 ; The Brig Veruma v. Clark, 1 Texas, 30 ; Myers v. Perry, 1 La. 
 Ann. 372; Duggins v. Watson, 15 Ark. 118; Fashion v. Wards, 6 McLean, ,C. C. 
 152. Dr. Lusliiiiijton, in The Virgil, 7 Jur. 1174, 2 W. Rob. 201, defines an inevitable 
 accident to be " that which the party charged with the offence could not possibly prevent 
 by the exercise of ordinary care, caution, and maritime skill." See also. The Loeh- 
 libo, 3 AV. Rob. 310, 318, 1 Eng. L. & Eq. G51 ; The Europa, 2 Eng. L. & Eq. 557 ; 
 The England, 5 Notes of Cases, 170; The John Buddie, 5 Notes of Ca.ses, 387; The 
 Juliet Erskine, 6 Notes of Cases, 633. In The Bolina, 3 Notes of Cases, 208, it was 
 held, that wliere there is no prima facie case of negligence, and want of seamanship, 
 and the party proceeded against alleges inevitable accident, the burden is not on him 
 to i)rovc it, but the party seeking indemnification must prove that the other party was 
 to blame. If a vessel, performing a salvage service, injures another, tiie injury will 
 generally be considered as unavoidable. Stevens v. Steamboat S. W. Downs, 1 Newb. 
 Adm. 458.
 
 188 ON THE LAW OF SHIPPING. [BOOK I. 
 
 also rests where it falls, by the rules of the common law.^ If it 
 cannot be ascertained where the fault lies, the rule may not be 
 quite certain ; but there is reason for saying that at common 
 law the loss will not rest where it falls, but be divided between 
 the two vessels. In admiralty this is more positively asserted, 
 and it seems to us the proper rule.^ In admiralty the rule was 
 
 iLuxford V. Large, 5 Car. & P. 421 ; Vanderplank v. Miller, Moody & M. 1G9; 
 Lack V. Seward, 4 Car. & P. 106; Sills v. Brown, 9 Car. & P. 601 ; Handaysyde r. 
 Wilson, 3 Car. & P. 528, 530, per Best, C. J. ; Vennall v. Garner, 1 Cromp. & M. 21, 
 3 Tyrw. 85; Simpson v. Hand, 6 Whart. 311; Broadwell v. Swigert, 7 B. Mon. 
 39 ; Rathbun r. Payne, 19 Wend. 399; Barnes v. Cole, 21 Wend. 188; Kelly v. Cun- 
 ningham, 1 Cal. 365 ; Myers v. Perry, 1 La. Ann. 372 ; Duggins v. Watson, 15 Ark. 
 118; Dunn v. McCorab, 11 La. Ann. 325. In the late case of Dowell v. The Gen. 
 Steam Nav. Co. 5 Ellis & B. 195, 32 Eng. L. & Eq. 158, Lord Campbell, C. J., said : 
 " According to the rule which prevails in the Court of Admiralty in a case of collision 
 if both vessels are in fault, the loss is equally divided ; but in a court of common law 
 the plaintiff has no remedy if his negligence, in any degree, contributed to the acci- 
 dent." See also, The Gen. Steam Nav. Co. v. Mann, 14 C. B. 127, 26 Eng. L. & Eq. 
 339, 341. The negligence of the plaintiff, in order to preclude him from recovering, 
 must be such that the defendant could not, by ordinary care, have avoided the conse- 
 quences of it. Butterfield v. Forrester, 1 1 East, 60 ; Bridge v. The Grand Junction 
 Railway Co. 3 M. & W. 244 ; Davies v. Mann, 10 M. & W. 545. Lord Campbell, in 
 the case of Gen. Steam Nav. Co. v. Tonkin, 4 Moore, P. C. 314, said that he entirely 
 concurred in the principle established in these cases. See also. Tuff v. Warman, 2 C. 
 B. N. s. 740. 
 
 2 When the collision has evidently been caused by neglect, or the want of sufficient 
 precaution, it is, perhaps, not yet settled whether the rule of equal apportionment 
 should be applied, if the fault is inscrutable, and it is impossible to say which party is 
 to blame. In The Catherine of Dover, 2 Hagg. Adm. 145, Sir Chr. Bobinson made 
 the following remarks to the Trinity Masters : " The result of the evidence will be oue 
 of three alternatives, either a conviction in your mind that the loss was occasioned by 
 accident, in which case it must be sustained by the party on whom it has fallen ; o)- a 
 state of reasonable doubt as to the ptreponderance of evidence, wJiich icill have nearly the same 
 effect ; or third, a conviction that the party charged with being the cause of the acci- 
 dent is justly chargeable with the loss of this vessel according to the rules of naviga- 
 tion ^hich ought to have governed them." The words in italics have, by a late writer 
 on maritime law, (Flanders on Mar. Law, p. 298,) been supposed to determine, as the 
 law of England, that where the fault is inscrutable, each shall bear his own loss. 
 Whether the learned judge intended this construction to be put upon his words is, per- 
 haps, doubtful. See Story on Bailments, § 609. The better rule seems to be that the 
 loss in such a case shall be equally divided. 1 Bell's Cora. 579 ; Pothier, Avaries, n. 
 155 ; 1 Emerig. Ass. ch. 12, § 14. In The Scioto, Daveis, 359, Mr. Justice Ware lays 
 down the rule in the broadest terms. He says, the rule of equal apportionment " seems 
 to apply in three cases, first, where there has been no fault on either side ; second, 
 where there may have been fault, but it is uncertain on which side it lies ; and third, 
 where there has been fault on both sides." And the rule of equal apportionment has 
 been adopted in the District Court of the United States for the District of Ohio. Lucas 
 V. Steamboat Swann, 6 McLean, C. C. 282. See also. The Nautilus, Ware, 2d ed. 529.
 
 en. VII.] COLLISION. 189' 
 
 once said to be, in the case where both are in fault, that the loss 
 should be apportioned between the parties, meaning according 
 to the degree or nacasure of the fault of each, if either decidedly 
 preponderates; but if they are equal, or nearly so, the whole 
 damage is divided between both, without reference to their 
 respective values. But, it seems now to be determined by adju- 
 dication, that the loss shall be divided equally.^ Still, the equity 
 power of the Court of Admiralty might qualify this rule, where 
 the fault was vastly greater on one side than the other.^ This 
 rule has been held not to apply when both parties are wilfully 
 in fault.^ And even at common law, it is said the jury must 
 take "an equitable view" of the facts and circumstances.* If a 
 
 1 Where both parties are to blame, the loss is equally apportioned between them, al- 
 though one may be much more in fault than the other. Vaux v. Shcffer. 8 Moore, 
 P. C. 75; The De Cock, 5 Month. Law Mag. 303, 2 Law Reporter, 311, 22 Am. 
 Jurist, 464; The Seringapatani, .5 Notes of Cases, 61, 66, 2 W. Eob. 506, 3 id. 38 ; 
 The Sappho, 9 Jurist, 560. In Hay v. Le Neve, 2 Shaw's Scotch Appeal Cases, 395, 
 this question received a full and elaborate discussion, and a decision of tiie Couit of 
 Sessions, that the ship most to blame should pay two thirds of the expenses, ivas 
 reversed. See also. The Judith Randolph, decided by Sir James Marriott, in 1789, 
 cited in Hay v. Le Neve, supm ; The Oratava, 5 Month. Law Mag. 45 ; The Victoria, 
 
 3 W. Rob. 49 ; The Montreal, 24 Eng. L. & Eq. 580 ; The Monarch, 1 W. Rob. 21 ; 
 Gen. Steam Nav. Co. v. Tonkin, 4 Moore, P. C. 314; Lenox v. The Winisimmet 
 Co., U. S. D. C, Mass., 11 Law Reporter, 80; The Scioto, Daveis, 359; Rogers 
 V. The Rival, U. S. D. C, Mass., 9 Law Reporter, 28 ; Haskell v. The Kennedy, 
 same court, April, 1857, not yet reported; Allen v. Mackay, same court, 16 Law 
 Reporter, 686 ; The Nautilus, Ware, 2d ed. 529 ; Foster t'. Schooner Miranda, 1 
 Ncwb. Adm. 227, 6 McLean, C. C. 221 ; Reeves v. Ship Constitution, Gilpin, 579. 
 The rule has also been, recently, adopted by the Supreme Court of the United States. 
 The Schooner Catherine i\ Dickinson, 17 How. 170, 177; Rogers r. Steamer St. 
 Charles, 19 How. 108. In the Southern District of New York the common law rule 
 formerly prevailed. The Bay State, Abbott, Adm. 235. 
 
 2 Mr. Justice IIo]>kinson, in Ralston v. The State Rights, Crabi)e, 22, was of the 
 opinion that the rule would not apply when the faults of the parties were c(/re<jiousIi/ 
 unequal. And in a case of similar circumstances, a strict application of the rule would 
 tend to encourage oppression and wrong. There is, however, no case wlierc a differ- 
 ent rule of apportionment has been adopted. 
 
 ^ Sturges V. Murphy, U. S. C. C, New York, Boston Courier, Sept. 19, 1857. 
 * See Smith v. Dobson, 3 Scott, N. R. 336. Concerning the justice of the rule there 
 is a great diversity of opinion. Lord Detiman, speaking of it, in De Vaux v. Salvador, 
 
 4 A. &E. 420, said: "It grows out of an arbitrary provision in the law of nations, 
 from views of general expediency, not as dictated by natural justice, nor possiidy quite 
 consistent with it." While Mr. Justice Nelson, in The Schooner Catherine v. Dickin- 
 son, 17 How. 170, 177, said of it: "Under the circumstances usually attending these 
 disasters, we think the rule dividing the loss the most just and ecjuitable, and as best 
 tending to induce care and vigilance on both sides in the navigation." Cleirac calls it
 
 190 ON THE LAW OF SHIPPING. [BOOK I. 
 
 vessel has, by no voluntary action on her part, contributed to the 
 collision, as where she is thrown against another vessel by the 
 swell caused by a passing steamer, she is not liable.^ We shall 
 consider, hereafter, the question how far the owners are liable 
 when the vessel is in charge of a pilot. It has been decided in 
 England that if a vessel is employed by government, no action 
 can be maintained against the owners for damages caused by a 
 collision which took place in consequence of the positive orders 
 of a commander in the royal navy under whose command she 
 was.2 
 
 And where proprietors of docks are empowered to direct where 
 a vessel shall be moored in a dock, and a penalty is imposed 
 on all persons refusing to obey the orders of the dock-master, 
 the vessel is not liable for damages caused by a collision, while 
 being moved according to the dock-master's directions.^ In 
 England no ship is answerable beyond the value of herself and 
 her freight;* and in this country similar statutes have been 
 passed in some of the States, and there is a United States stat- 
 ute to the same effect.^ If the cargo is injured by collision 
 through any fault of the master, the shipper has an undoubted 
 claim. If the collision occurred from the irresistible force of tide 
 or storm, the ship is excused, because the loss was occasioned 
 by a peril of the sea.^ But if the collision occurred wholly 
 
 a, judicium rusticum. Us et Coustumes de la Mcr, 68. Valiii, on the contrary, thinks 
 the rale just, and the most equitable one which could be adopted. Valin, liv. 3, tit. 7, 
 des A varies. 
 
 1 Kissam v. The Albert, U. S. D. C, N. Y., Boston Courier, April 3, 1858, 21 Law 
 Reporter, 41. The vessel injured in this case had been fostened along-side a brig, and 
 rested against the anchor of the latter, which was catted on the starboard bow. The 
 carrying the anchor in this way was prohibited by the harbor regulations of the port. 
 The anchor ripped up the timbers of the vessel, but the court held that it was not the 
 direct cause of the loss. So, where one vessel runs into another and causes it to come 
 into collision with a third vessel, the second is not liable to the third if damage ensue, 
 if it was not otherwise to blame. The Moxey, Abbott, Adm. 73. 
 
 2 Hodgkinson v. Fernie, 2 C. B. n. s. 415, 40 Eng. L. & Eq. 306. It was also 
 held, in this case, that they were liable if the injury was caused by negligence on the 
 part of the master in adhering to the orders, if they were given in reference to an 
 existing state of circumstances, and were not intended to apply to an emergency. 
 And see Fletcher v. Braddick, 5 B. & P. 182. 
 
 3 The Broeder Trow, 20 Eng. L. & Eq. 634. 
 * Sec post, ch. 11, § 3. 
 
 B See post, ch. 11, ^ 3. 
 
 6 BuUer v. Fisher,. 3 Esp. 67.
 
 CII. VII.] COLLISION. 191 
 
 through the fault of another vessel and most unnecessarily, but 
 without any fault on the part of the ship which contains the 
 damaged cargo, then the ship is not excused, whether there be 
 a bill of lading or not, such collision being neither an act of 
 God, or " a peril of the sea." ^ And if neither party be to 
 blame, the defendant is liable if no bill of lading is given, be- 
 cause such collision would be neither an act of God nor of the 
 public enemy.^ As between an underwriter and the insured 
 owner of a ship, the former will be answerable for a loss by a 
 collision, although caused by the negligence of the master or 
 crew, because it is considered as a peril of the sea; but a col- 
 lision so occurring will not exempt the owner of the vessel 
 from being liable to the shipper of goods for damage caused to 
 them thereby. 3 
 
 Generally, if a collision has happened, and one vessel had 
 been guilty of some negligence, the burden is on her to prove 
 that this negligence was not the cause of the collision;* and a 
 
 1 Marsh v. Blythe, 1 McCord, 360. 
 
 2 In Plaisted v. Boston & Kennebec Steam Nav. Co. 27 Maine, 132, no bill of lading 
 was given. The goods were damaged by a collision. No fault was imputable to 
 either party, but as it was not caused by an act of God, or an inevitable accident, tlie 
 defendants were held liable. But the court said that they would have been discharged, 
 if a bill of lading had been given with an exception against perils of the sea. See 
 also. Steamboat New Jersey, Olcott, Adm. 444, 448. 
 
 ^ Because no bailee, whether a common carrier or not, can limit his liability against 
 loss arising from his own negligence. Sec BuUcr r. Fisher, 3 Esp. 67 ; Phillips 
 V. Clark, 2 C. B. N. s. 156; Marsh v. Blythe, 1 McCord, 360; Jones v. Pitcher, 
 3 Stew. & P. 135; Whitesides i-. Thurlliill, 12 Sm. & M. 599. In Duggins v. 
 Watson, 15 Ark. 118, it was held that a shipper of goods on one vessel could 
 not recover damages, caused by a collision with another, from the other vessel, 
 unless the vessel on which his goods were shipped was entirely free from blame. 
 Sec also, Simpson v. Hand, 6 Whart. 311; Otis v. Thorn, 23 Ala. 469. In 
 Harding v. Steamboat Maverick, U. S. D. C, Mass., 5 Law Reporter, 106, the 
 vessel on which the libellant was employed as mate had run a warp across the track of 
 a ferry-boat, for the purpose of removing her from one wharf to another. The ferry- 
 boat ran against the warp, and tlie leg of tlie libellant was thereby broken. It ap- 
 peared in evidence that the ferry-boat at the time was running without a license, and 
 the court held that the lilicllant was entitled to recover. These cases proceed on the 
 princiide that a party by shipping goods on board a vessel, so identifies himself with 
 that vessel that if it cannot recover for the damages done by the collision, he cannot. 
 In En^'land this has been applied to the case of a passenger on a steamboat. Cattlin 
 V. Hills, 8 C. B. 123. See .also, Thorogood v. Bryan, id. 115; Rigby v. Hewitt, 5 
 Exch. 240. 
 
 * Clapp V. Young, U. S. D. C, Mass., 6 Law Reporter, 111 ; Bulloch v. Steamboat
 
 192 ON THE LAW OF SHIPPING. [bOOK I. 
 
 plaintiff in a cause of collision, must prove both care on his own 
 part and want of it in the defendant.^ Nor is it enough to 
 show that it could not have been prevented at the moment, if it 
 might have been by previous precautions.^ Among these pre- 
 cautions it seems to be a kind of rule, but not perhaps estab- 
 lished as law, that a ship lying in a river-way, or a stream, is 
 bound to show a light. The subject has been a good deal dis- 
 cussed of late, and perhaps the best conclusion is, that in each 
 case the circumstances must decide whether a light was neces- 
 sary.^ It is required by United States statutes in the case of 
 
 Lamar, U. S. C. C, Georgia, 8 Law Reporter, 275; Waring v. Clarke, 5 How. 441, 
 465 ; The Brig Emily, Olcott, Adm. 132. 
 
 1 Carslej- v. White, 21 Pick. 254 ; Drew v. Steamboat Chesapeake, 2 Doug. Mich. 33 ; 
 Lane v. Crombie, 12 Pick. 177 ; Bulloch v. Steamboat Lamar, tit sup. ; Sills v. Brown, 
 9 Car. & P. 601 ; New Haven S. B. Co. v. Vanderbilt, 16 Conn. 420 ; Kennard v. 
 Burton, 25 Me. 39; Rathbun v. Payne, 19 Wend. 399 ; Marriott v. Stanley, 1 Scott, 
 N. R. 392 ; Raisin v. Mitchell, 9 Car. & P. 613 ; Bridge v. Grand Junction Railway 
 Co. 3 M. & W. 244 ; Smith v. Dobson, 3 Scott, N. R. 336, 3 Man. & G. 59 ; Butter- 
 field V. Forrester, 1 1 East, 60 ; Handaysyde v. Wilson, 3 Car. & P. 528 ; Vanderplank 
 V. Miller, Moody & M. 169 ; Davies v. Mann, 10 M. & W. 546; Vennall v. Garner, 1 
 Cromp. & M. 21, 3 Tyrw. 85 ; Fashion r. Wards, 6 McLean, C. C. 152 ; The Bolina, 
 3 Notes of Cases, 208 ; The Steam Tug Wm. Young, Olcott, Adm, 38; The Steam 
 Ferry-Boat Relief, id. 104; The Columbus, Abbott, Adm. 384. 
 
 2 In the case of The Virgil, 7 Jur. 1174, 2 W. Rob. 201, 205, Dr. Lushington said : 
 " If a vessel charged with having occasioned a collision, should be sailing at the rate 
 of eight or nine miles an hour, when she ought to have proceeded only at the speed of 
 three or four, it will be no valid excuse for the master to aver that he could not prevent 
 the accident at the moment it occurred, if he could have used measures of precaution, 
 that would have rendered the accident less pix)bable ; it may undoubtedly be important 
 that a voyiige should be completed in the most speedy manner, but such speed must be 
 combined with safety to other vessels sailing in an opposite course." See also. The 
 Steamboat New York v. Rea, 18 How. 223, 224; The Clement, 2 Curtis, C. C. 363. 
 
 3 Whether a vessel must have a light or not, is generally a question of fact, to be 
 decided by all the evidence in each particular case, whether the omission of a light 
 constituted negligence. Thus Dr. Lushington in the Rose, 2 W. Rob. 4, said : " It has 
 been discussed over and over again in former cases of this kind, and I believe there is 
 no occasion in which it has been laid down as a general principle that merchant ves- 
 sels ought constantly to carry lights. Under certain circumstances undoubtedly it may 
 be right and expedient to do so." Similar language is used by him in the case of The 
 Swea, 4 Notes of Cases, 97, note ; and in that of The Sarah, 4 Notes of Cases, 98, note. 
 He cited and affirmed the above also in The Iron Duke, 2 W. Rob. 377. In this case 
 a large steamer, on a dark night, in a part of the channel constantly navigated by ves- 
 sels, ran into and sunk a brig. The latter had no lights. It was held that she was not 
 bound to carry lights, and that the steamer was to blame in going at full speed on such 
 a night in such a locality. This decision seems hardly consistent with that of The Vic- 
 toria, decided by the learned judge a few years later, and reported in 3 W. Rob. 49.
 
 en. VII.] COLLISION. 193 
 
 certain steamboats;^ and in New York it is required of boats 
 
 In. that case a vessel at anchor withont a light was run into. Dr. Lushimjton, address- 
 ing the Trinity Masters, said : " If you are of opinion that the carrying and exhibiting 
 such a light would have tended to prevent the collision, I cannot but tliink that it was 
 a duty imposed upon him to have done so, and for this reason, that all persons are 
 bound to take due and proper care to avoid an accident, and no man can justly com- 
 plain of an accident that happens to himself, if by reasonable care and proper precau- 
 tion he could have prevented it." The Trinity Masters were of opinion that, looking 
 to the period of the year, the state of tlie niglit, and the number of vessels likely to be 
 in the neighborhood of her, it was her duty, under such a combination of circumstances, 
 to have had a light bunilng. See also. The Scioto, Daveis, 3.59 ; Lenox v. The Wini- 
 simmct Co. U. S. D. C, Mass., May, 1848, 1 1 Law Reporter, 80. In Kelly r. Cunning- 
 ham, I Cal. 365, it was held that if ordinary prudence required a vessel, lying in the 
 roadstead of San Fransclsco, to carry a light, a general custom for vessels in the harbor 
 to neglect to do so was no excuse. See also, Innis r. Steamer Senator, 1 Cal. 459. 
 And in The Indiana, Abbott, Adm. 330, and Hain v. Steamboat North America, U. S. 
 D. C, South. Dist. of N. Y., 2 N. Y. Leg. Obs. 67, it was held that a vessel at anchor in 
 the harbor, or in a navigable river, must show a light. See also, Rogers v. Steamer 
 St. Charles, 19 How. 108. In this case the light had been taken down just previous to 
 the collision, in order that the water which had collected on the glass globe might be 
 wiped off. The vessel was nevertheless held to be in fault. In Carsley v. "White, 21 
 Pick. 254, the court instmctcd the jury that whether the plaintiffs ought to have had a 
 light or not, depended on all the circumstances of the case. The vessel was lying in 
 the harbor of Provincetown. See also, The New Haven Steamboat Co. i\ Vander- 
 bilt, 16 Conn. 420, 429. It was also held in The Santa Claus, 1 Blatchf. C. C. 370, 
 that, where a vessel on a dark night, tiie weather being thick and cloudy, carried but 
 one light, and thereby led those on board of another vessel to suppose tliat she was at 
 anchor, and a collision consequently took place, the vessel was guilty of negligence. 
 The necessity of having a light was strongly enforced by Mr. Justice Grier, in the 
 case of The Barque Delaware v. Steamer Osprey, 2 Wallace, C. C. 268, 275. The 
 Osprey ran into the barque Delaware ; the steamer had lights but the barque had not. 
 Mr. Justice Grier said : " The court cannot establish any rule to bind vessels navigat- 
 
 1 Stat. 1838, ch. 191, § 10; 5 U. S. Stats, at Large, 306. This statute applies to 
 steamboats generally. That of 1849, ch. 105, § 5 ; 9 U. S. Stats, at Large, 382, pre- 
 scribes the rules for steamboats and sailing vessels on the northern and western lakes. 
 If a vessel disregard tlic provisions of these statutes, the burden is on her to sliow, in 
 case of a collision, that the accident was not owing to such neglect. Bulloch i\ Steam- 
 boat Lamar, U. S. C. C, Georgia, 1844, 8 Law Reporter, 275; Foster v. Tiie Sch. 
 Miranda, 1 Newb. Adm. 227 ; 6 McLean, C. C. 221. See also, Lawson v. Carr, Privy 
 Council, 19 Law Reporter, 100. But if tiie accident is not owing in any degree to the 
 absence of the light, tlie vessel will not be considered in fiiult in this respect. New 
 Haven S. B. Co. v. Vanderbilt, IG Conn. 420; Griswold v. Sharpc, 2 Cal. 17; Tiie 
 Santa Claus, Olcott, Adm. 428 ; Tlie Panther, 24 Eng. L. & Eq. 585; Morrison v. 
 The Gen. Steam Nav. Co. 8 Exch. 733, 20 Eng. L. & Eq. 455; Mackay v. Roberts, 9 
 Moore, P. C. 357. The act of 1849 provides that vessels "going off lai-ge," or before 
 the wind, or at anchor, must show a white light. It has been held that a vessel under 
 Avay with the wind abaft the beam is " going off large." Hall r. Tlie Buffalo, 1 
 Newb. Adm. 115. 
 
 VOL. L 17
 
 194 ON THE LAW OF SHIPPING. [BOOK I. 
 
 in the canals, and the want of such light is evidence of negli- 
 
 ing the high seas, after night, to carry signal lights ; but when one party does this, and 
 the other does not, we can and will treat (in a case cateris paribus) the dark boat as 
 the wrongdoer." And Mr. Justice Kane, in the same case, said : " I should be verj- 
 glad to follow in the wake of the tirst admiralty judge, who would hold the absence of 
 a properly placed, and well trimmed lantern, to be prima facie evidence of a culpable 
 want of caution." See also, Jacobsen's Sea Laws, 340. Gibson, C. J., in Simpson v. 
 Hand, 6 Whart. 311, 324, said: "Indeed, the hoisting of. a light is a precaution so 
 imperiously demanded by prudence, that I know not how the omission of it could be 
 qualified by circumstances any more than could the leaving of a crate of china ia the 
 track of a railroad car, or how it could be considered otherwise than as negligence per 
 se." See also. The Oratava, 5 Month. Law Mag. 45 ; The Columbine, 2. W. Rob. 27, 
 33 ; Steamboat Blue Wing v. Buckner, 12 B. Mon. 246 ; Ward v. Armstrong, 14 El. 
 283. In Culbertson v. Shaw, 18 How. 584, Mr. .Justice McLean states the law, as fol- 
 lows : " Where a boat is .anchored in the path of vessels, a light is indispensable; but 
 it is not required where the boat is fastened to the shore, especially at a place set apart 
 for such boats." See also, Ure v. Coffman, 19 How. 56. In the case of Braincrd v. 
 Steamer Worcester, U. S. D. C, Conn., Boston Daily Advertiser, Sept. 12, 1856, 
 Mr. Justice IngersoU held, " that by the maritime law, a vessel lying at anchor in a 
 track frequented by other ships is bound to exliibit an efficient light, an effective light, 
 sufficient to warn other vessels approaching, of the position in which she is anchored. 
 That a light hung in the larboard forerigging of a vessel at anchor, with her sails up, 
 and so as to be obscured and eclipsed by the sails, from the view of a steamer ap- 
 proaching on the starboard side, so far as respects such steamer so approaching, is no 
 sufficient light within the meaning of the maritime law." In The Thomas Martin, 
 U. S. C. C, N. Y., 19 Law Reporter, 379, Mr. Justice Nelson held, that even if vessels 
 were not bound to carry lights gencrall}-, still when approaching each otiier they were 
 bound so to do. And in Pope v Steamer R. B. Forbes, U. S. D. C, Mass., Mr. Jus- 
 tice Spragiie used the following language : " Now there is no imperative rule that a 
 sailing vessel must show a light. Yet if a schooner in the night time, going where 
 steamers may be expected to be met, foils to show a light, she ought not to recover for 
 damages done by collision with a steamer, if the steamer keeps a good look-out and 
 uses reasonable exertions to prevent a collision." See also, the language of TT'are, J., 
 in The Steamer City of New York, U. S. D. C, Mass., Boston Courier, Dec. 10, 
 1857. But see The Pilot Boat Blossom, Olcott, Adm. 188 ; The Steamboat Neptune, 
 id. 483. In New York & Virginia Steamship Co. v. Caldcrwood, 19 How. 241, which 
 was a case of a collision between a sailing vessel and a steamer, the sailing vessel had 
 no light. The court were of opinion, upon the evidence in the case, that this did not 
 indicate negligence, but said : " But that the case may not be misunderstood, we assert 
 that the ruling principle of the court is, that an obligation rests upon all vessels found 
 in the avenues of commerce to employ active diligence to avoid collisions, and that no 
 inference can be drawn from the fact, that a vessel is not condemned for an omission 
 of certain precautionary measures in one case, that another vessel will be excused, 
 under other circumstances, for omissions of the same description." In Valentine v. 
 C'lcugh, 8 Moore, P. C. 167, 29 Eng. L. & Eq. 49, it was held that, where an admiralty 
 regulation, made pursuant to the 14 and 15 Vict. c. 79, prescribed that all sailing vessels 
 at anchor should exhibit a constant bright light at the masthead, between sunset and 
 sunrise, a light in the larboard niizzen rigging was not sufficient, it being not so readily 
 seen there as in the place prescribed. See also, Tiie ]\Iangerton, 2 Jur. n. s. 620, 27 Law
 
 CH. ^T:r,] COLLISION. 195 
 
 gence.i Sailing vessels when under way,- as well as when at 
 anchor,^ should have a sufficient watch or look-out on deck. If 
 ships arc approaching each other, the one going free must get out of 
 the way of the one that is close-hauled.* If both are close-hauled, 
 
 T. 207 ; Whittel v. Crawford, Exch., 37 Eng. L. & Eq. 46G. But in Mackay v. Koberts, 
 9 ISIoore, P. C. 357, a schooner of 116 tons burden exhibited a light in a lantern, with 
 a candle of eight to the pound, which was hung at the forestay, four or five feet above 
 the deck. There was also a binnacle light. This was held a sufficient compliance 
 with the. regulation imposing a duty on "sailing vessels approaching or being ap- 
 proached by any other vessel, to show a bright light in such a position as can be seen 
 by such vessel, and in sufficient time to avoid the collision." A "bright light "was 
 held to be such a light as vessels of the same class as the one in question usually car- 
 ried. — The light must not only be shown, l)ut continued, until the danger is past. 
 Dowell r. The Gen. Steam Xav! Co. o Ellis & B. 195, 32 Eng. L. & Eq. 158. If .the 
 fact of there not being lights is not noticed in the pleadings and arguments, the court will 
 take notice of it, and neither party can recover. Tiie Aliwal, 25 Eng. L. & Eq. 602. 
 
 1 See Rathbun v. Payne, 19 Wend. 399. There is also a statute which provides 
 that steamboats shall carry lights. See Fitch v. Livingston, 4 Sandf. 492 ; The Santa 
 Glaus, Olcott, Adm. 428, 1 Blatchf. C. G. 370. In Fitch v. Livingston, it was held, 
 that a steam propeller licensed as a coaster, going up the Hudson, on a voyage from 
 Philadelphia to Albany, was bound to comply with the laws of the State through 
 whose waters she was passing. In The Santa Glaus, which was a similar case, the ves- 
 sel was held to be in fault in not carrying two lights, not so much on the law of the 
 State as on a usage of the river. In Ilalderman r. Beckwith, 4 McLean, C. C. 286, it 
 was held tiiat a State had no power to pass a law regulating the mode in which vessels 
 should pass each other on waters within the limits of the State, when the vessels did not 
 belong to the State. This case was carried up to tlie Supreme Court of the United 
 States, and that court was eijually divided. It has been held in a recent case, that the 
 statutes of a State only apply to cases which come before the courts of tlie State, 
 and that in a case before the Federal courts, which administer the general admi- 
 ralty law, they will not lie regarded. The vessel •which disregarded the statute was a 
 foreign ship, at anchor at the time of the collision in the port of New York. Steam- 
 boat New York v. Rea, 18 IIow. 223. An exception to the general rule thus laid do\vn 
 is stated by the learned court to be that tlie States have the right to pass laws regulat- 
 ing vessels while in the harbors and ports of a State. But this seems inconsistent with 
 the decision. 
 
 It is provided also in Vermont, that vessels on Lake Champlain shall carry lights. 
 Rev. Stats, of Vermont, tit. xxii. ch. 92, p. 422. 
 
 2 The Brig Emily, Olcott, xVdm. 132 ; The Pilot Boat Blossom, id. 188 ; The Re- 
 becca, 1 Blatchf. & H. Adm. 347 ; The Clement, 2 Curtis, C. G. 363, 369 ; The 
 Chester, 3 Uagg. Adm. 316. But it has been held not to be improper conduct on the 
 part of the officer of tlie deck to take the helm himself and to trust the look-out to a 
 common sailor. Tlie Pilot Boat Blossom, snjmi. 
 
 ^ The Indiana, Abbott, Adni. 330. But if the collision was not owing to the absence 
 of a watch, the vessel will not be considered in fault. Mellon v. Smith, 2 E. D. 
 Snvitli, 462. 
 
 * Sills V. Brown, 9 Car. & P. 601 ; The Gazelle, 2 W. Rob. 515 ; The George, 5 Notes 
 of Cases, G6S ; The Woodrop-Sims, 2 Dods. 83 ; The Speed, 2 W. Rob. 225 ; Jamc-
 
 196 ON THE LAW OF SHIPPING. [bOOK I. 
 
 each should go to the right ; or the ship on a starboard tack keeps 
 on, while the ship on the larboard tack changes her course.^ If 
 both are going the same way, it is said that the ship to wind- 
 ward is to keep away ; but this is manifestly incorrect, and there 
 is need of further adjudication to determine the true rule.^ If 
 
 son V. Drinkald, 12 Moore, 148 ; The Harriett, 1 W. Rob. 182 ; The Rose, 2 W. Rob. 
 1 ; The Baron HolbCTg, 3 Hagg. Adm. 244 ; Mackay v. Roberts, 9 Moore, P. C. 357 ; 
 Handaysyde v. Wilson, 3 Car. & P. 528; Vennall v. Garner, 1 Cromp. & M. 21, 3 
 Tyrw. 85; The Ciiester, 3 Hagg. Adra. 316; The Rebecca, 1 Blatchf. & II. Adm. 
 347 ; Allen v. Mackay, U. S. D. C, Mass., Dec. 1853, 16 Law Reporter, 686 ; The 
 Clement, same court, Oct. 1854, 17 Law Reporter, 444; affirmed in Circuit Court, 
 2 Curtis, C. C. 363; The Clara M. Porter, U. S. D. C, Mass., Jan. 1856, 18 Law 
 Reporter, 678; The Brig Emily, Olcott, Adm. 132; The Pilot Boat Blossom, id. 
 188 ; The Sloop Argus, Id. 304. 
 
 1 The Jupiter, 3 Hagg. Adm. 320; Jameson v. Drinkald, 12 Moore, 148; The Brig 
 Cynosure, U. S. D. C, Mass., 7 Law Reporter, 222 ; The Lady Anne, 1 Eng. L. & Eq. 
 670 ; The Commerce, 3 W. Rob. 287 ; Bark St. John v. Bark Mary Bannatyne, Vice 
 Adm. Court, Lower Canada, 18 Law Reporter, 528; The John Brotherick, 8 Jur. 
 276 ; The Alexander Wise, 2 W. Rob. 65. And it is the duty of the vessel on the 
 larboard tack to give way at once, without considering whether the other vessel be one 
 or two points to leeward. The Traveller, 2 W. Rob. 197. The general rule only 
 applies when the two vessels are directly opposing each other, and not when the heads 
 of the respective vessels are lying in diifcrent directions. The London Packet, 2 W. 
 Rob. 213. It was held in The Ann & Mary, 2 W. Rob. 189, that in doubtful circum- 
 stances, where there is a probability of a collision, a vessel on the larboard tack, 
 although close-hauled, is bound to give way to a vessel on the starboard tack, notwith- 
 standing the latter may have the wind free. 
 
 The 296th section of the Merchants Shipping Act, 17 and 18 Vict., provides that 
 when any ship, whether a steam or sailing ship, proceeding in one direction, meet 
 another proceeding in another direction, so as to involve the risk of a collision, the 
 helms of both ships shall be put to port so as to pass on the port side of each other, 
 whether the vessels be on the port or starboard tacks, and whether close-hauled or not, 
 unless the circumstances of the case are such as to render a departure from the rule 
 necessary in order to avoid immediate danger ; and subject also to the proviso, that 
 due regard shall be had to the dangers of navigation, and as regards sailing ships on 
 the starboard tack close-hauled, to the keeping such ships under command. In a case 
 that came up under this section, the court held that the term close-hauled in the 
 former part of the section, meant that the ship might be brought a little nearer to the 
 wind, and that if she could not go any nearer without the command over her being 
 lost, she was not obliged to port her helm. Chadwick v. City of Dublin Steam-Packet 
 Co. 6 Ellis & B. 771, 38 Eng. L. & Eq. 107. 
 
 - It is laid down by Chancellor Kent, (3 Kent, 230,) and in a note to Abbott on 
 Shipping, p. 234, by one of the American cditoi-s, and in Flanders on ilaritime Law, 
 307, that where two vessels are going the same course in a narrow channel, and 
 there is danger that they will run afoul of each other, the vessel to the windward is 
 to keep away. For this position Marsh v. Blythe, 1 McCord, 360 is cited. That 
 this cannot always be correct, is manifest on a slight examination of the meaning 
 of the term "keep away." For, if two vessels are going the same way, on the same
 
 CH. Vir.] COLLISION. 197 
 
 two sailing vessels arc approaching each other with the wind 
 free, each goes to the right.^ 
 
 The rule is the same of two steamboats approaching each 
 other.2 Since steamboats can go almost equally well in one 
 
 tack, but converging, so tluvt if they should keep on, a collision would ensue, 
 if the vessel to windward should keep away, that is, keep away before the wind, 
 she would be thrown directly in the track of the other vessel. Nor is the case 
 of Marsh v. Blythe an authority in point. The head note does not state the 
 case coiTCctly. Two vessels were bound to Charleston, one, at the time of the collision, 
 was on the starboard tack, and the other on the larboard. It was held that the latter 
 should have given way. It will be readily seen that this is merely an exemplification of 
 the rule, given above, that when two vessels close-hauled are approaching, the vessel 
 on the larboard tack is to change her course. The head note of the case of Steamboat 
 Co. V. Whilldin, 4 Harring. Del. 228, is also incorrect. In that case two steamboats 
 going in opposite directions came into collision. There is not even a dictum in the 
 opinion of the court in regard to the duty of vessels going in the same direction, 
 though the rules of navigation, as given by Kent, are incorporated into the head note. 
 The question came before the District Court of the United States for the District of 
 Massachusetts in the case of Tlie Clement, 17 Law Reporter, 444. A brig and a pilot 
 boat, schooner rigged, were sailing on the same tack, on converging courses. The 
 brig was to windward and had the wind two points free. The pilot boat was close- 
 hauled. The two vessels kept their respective courses, and the pilot boat, being the 
 faster sailer, overtook the brig and struck her on the lee bow. The court applied the 
 rule applicable to vessels approaching each other, and held that the brig, having the 
 wind free, should have avoided the pilot boat. It was also said that if both had been 
 close-hauled, and the convergency had been caused bj' the schooner's being able to lie 
 nearer the wind, the brig would not have been in fault. This case was affirmed in the 
 Circuit Court. 2 Curtis, C. C. 3G3. An appeal was taken to the Supreme Court, 
 and the case argued, and that court were equally divided. 
 
 We are unable to see, so clearly as we could desire, that the decisions in the district 
 and circuit courts are altogether correct. It seems to have been taken for granted that 
 the general rule as to vessels approaching each other applied to the case of a vessel 
 astern, and the faster sailer overhauling and running into the other. If such a pro- 
 ceeding may be justified by the fact that the one astern was close-hauled, and the one 
 ahead had the wind free, then it would seem to follow that, on the road, a carriage 
 might run into one ahead, and justify itself by saying that it had kept to the right "as 
 the law directs." 
 
 If two steamboats arc going in the same direction, the one ahead is entitled 
 to keep her course, and the one astern, if she attempts to pass, must avoid a 
 collision. The Rhode Island, Olcott, Adm. 505, affirmed 1 Blatchf. C. C. SG.-J ; The 
 Governor, Abbott, Adm. lOS. See also. Ward v. Sch. Donsman, 6 McLean, (-. C. 
 231. And the same rule has been applied where the one ahead was a sailing vessel, 
 and the one astern was towed by a steamer. The Carolus, 2 Curtis, C. C. G9. 
 
 1 Lowry v. Steamboat Portland, 1 Law Reporter, 313, 315 ; St. John v. Paine, 10 
 How. 557 ; The City of London, 4 Notes of Cases, 40. 
 
 2 The Steamboat Washington, U. S. D. C, Intjersoll, J., 12 N. Y. Leg. Obs. 163; 
 Wheeler v. The Eastern State, 2 Curtis, C. C. 141 ; The Santa Clans, Olcott, Adm. 
 428, 1 Blatchf, C. C. 370; Lockwood v. Lashell, 19 Pcun. State, 344. In Ward v. The 
 
 17*
 
 198 ON THE LAAV OF SHIPPING. [dOOK I. 
 
 direction as in another, they are considered as vessels with a free 
 wind. They have great power and speed, and are always 
 obliged to observe a great degree of caution, particularly at 
 night. They must be very watchful as to their speed and 
 course. In regard to the former, it is a question of fact in each 
 particular case whether the speed was excessive or not ; and in 
 determining this, the locality and hour, the state of the weather, 
 and all circumstances of a similar nature, are to be fully con- 
 sidered.i It has been held to be no excuse for an excessive 
 speed, that the steamer could not otherwise fulfil a contract for 
 the carriage of the mail.^ If a steamboat, in consequence of 
 excessive speed, raises so great a swell that a vessel is sunk 
 thereby, the owners are liable.^ A steamer, when hailed in a 
 fog, should reverse her engines and stop her headway as much 
 as possible.^ The same precautions should be taken when a 
 vessel is seen, but her course is doubtful.^ In respect to a look- 
 out, it is not enough that a person is stationed in the pilot-house 
 for that purpose, but a vigilant watch should be stationed in the 
 forVk^ard part of the steamer, so situated as to be able to discern 
 
 Ogdensburgh, 1 Newb. Adm. 139, it was held, that the rule did not apply where, if 
 each should keep its course, there would be no possibility of a collision. But in 
 Wheeler v. The Eastern State, supra, it was held not to be enough for the party who 
 departs from the rule to show that they would not have gone clear, but he must show 
 that the other party ought to have perceived there was no probable chance of collision 
 by so doing. See p. 202, note 2. 
 
 1 The Europa, 2 Eng. L. & Eq. 557, 564 ; The Northern Indiana, 16 Law Reporter, 
 433 ; The Gazelle, 2 W. Rob. 515 ; The Iron Duke, 2 W. Rob. 377 ; The Virgil, 2 
 W. Rob. 201 ; The Bay State, Abbott, Adm. 235, s. c. nom. McCready v. Goldsmith, 
 18 How. 89 ; Steamboat New York v. Rea, 18 How. 223 ; Brainerd v. Steamer Wor- 
 cester, U. S. D. C, Conn., Boston Daily Advertiser, Sept. 12, 1856 ; Rogers v. Steamer 
 St. Charles, 19 How. 108. If the by-laws of a place forbid vessels going over a cer- 
 tain rate of speed in the adjacent waters, it is no excuse in case of collision that the 
 colliding vessel was going at a rate within the limits of the rule, if such rate were 
 dangerous at the time. Netherlands Steamboat Co. r. Styles, Privy Council, 40 
 Eng. L. & Eq. 19, 25. 
 
 - The Rose, 2 W. Rob. 1 ; The Northern Indiana, 16 Law Reporter, 433 ; Rogers v. 
 Steamer St. Charles, 19 How. 108, 112. 
 
 3 Netherlands Steamboat Co. v. Styles, Privy Council, 40 Eng. L. & Eq. 19. See 
 also. Smith v. Dobson, 3 Man. & G. 59, whore the damage was caused partly by the 
 swell of a steamer which had already passed, and the defendant was held liable. 
 
 * The Perth, 3 Hagg. Adm. 414. 
 
 5 The Birkenhead, 3 W. Rob. 75 ; The James Watt, 2 W. Rob. 270 ; The Northern 
 Indiana, 16 Law Reporter, 433, 447; Ward v. The Ogdensburgh, 1 Newb. Adm. 
 139.
 
 CH. VII.] COLLISION. 199 
 
 vessels at the earliest moment.^ When a steamer meets a sail- 
 ing vessel close-hauled, the sailing vessel must keep on her 
 course and the steamer must avoid her if there is danger of a 
 collision,^ and according to the American rule the steamer may 
 go either to the right or left of a sailing vessel with the wind free, 
 but this rule is objectionable in some respects, and we think the 
 English rule, requiring her to go to the right, is to be preferred.^ 
 
 1 St. John V. Paine, 10 How. 557, 585; Newton v. Stebbins, 10 How. 586 ; The 
 Propeller Genesee Chief v. Fitzhugh, 12 How. 443; Tiie Northern Indiana, 16 Law 
 Reporter, 433, 447; Ward v. The Ogdcnsburgh, 1 Newb. Adm. 139; The Steamboat 
 New York v. Rea, 18 How. 223; Goslee v. Shute, id. 463; Netherlands Steamboat 
 Co. V. Styles, Privy Council, 40 Eng. L. & Eq. 19. In the case of The Europa, 2 
 Eng. L. & Eq. 557, it was held, that a steamer going at the rate of twelve and a half 
 knots an, hour in a dense fog, seven hundred miles from land, must have the most com- 
 plete look-out that can be adopted. It was in evidence that the usual look-out in cases 
 of difficulty, and of dense fog, was an officer on the foremost bridge, another at the con, 
 a quarter-master at the wheel, and a second hand in the wheel-house, and lastly, two 
 look-outs on the top-gallant forecastle. In the present case the look-outs being, merely, 
 one on the bridge, a quarter-master on the top-gallant forecastle, one at the wheel, and 
 anotlier at the con ; it was held, that no sufficient look-out was kept. See also, ante, 
 p. 195, note 1. In The Wirrall, 3 W. Rob. 56, the Trinity Masters were of opinion, 
 that the proper place for the master, or look-out man on a feny-boat on the river Mersey, 
 was the bridge between the j)addle-boxes. See also, generally. The George, 4 Notes of 
 Ca.ses, 161 ; Jameson v. Drinkald, 12 Moore, 148; The Shannon, 2 Hagg. Adm. 173 ; 
 The Columbine, 2 W. Rob. 27. 
 
 2 The Gazelle, 2 W. Rob. 515; St. Jolin v. Paine, 10 How. 557 ; Newton v. Steb- 
 bins, id. 586; Lowry v. Steamboat Portland, 1 Law Reporter, 313; Hawkins v. 
 Dutchess & Orange S. B. Co. 2 Wend. 452; The Genesee Chief v. Fitzhugh, 12 
 How. 443; Sanderson v. Columbus, 10 Phil. L. J. 268, 8 Leg. Int. 31 ; Lyle v. The 
 Conestoga, 11 Phil. L. J. 183, 8 Leg. Int. 154; Mellon v. Smith, 2 E. D. Smith, 462; 
 The Steam Tug Wm. Young, Olcott, Adm. 38; The Steamboat Narragansett, 
 Olcott, Adm. 246; The Steamboat New Jersej', id. 415; The Steamboat Neptune, 
 id. 483; Tlie Washington Irving, Abbott, Adm. 336. The sailing vessel is, however, 
 only obliged to keep her course when there is some immediate danger of collision. 
 The Propeller ISIonticello v. MoUison, 17 How. 152 ; Peck v. Sanderson, id. 178. 
 
 '^ We have seen that, when two sailing vessels going free meet, each must pass to the 
 right ; and as a steamer is considered in the light of a vessel going free, it would seem to 
 follow that when she meets a sailing vessel free, the same rule should ap])ly. And it was 
 so held by Dr. Lushinfjlon, in the case of Tiie City of London, 4 Notes of Cases, 40. 
 The rule, as laid down by him, has been followed by the Vice Admiralty Court of 
 Lower Canada, in the case of Tiie Inga, decided July 3, 1855, 18 Law Reporter, 285, 
 and is supported by a writer in the London Law Magazine, vol. 53, p. 52. It is now 
 by statute the settled law of England. The Merchants Sliijiping Act of 17 & 18 Vic- 
 toria, § 296 ; The Mangerton, 2 Jur. n. s. 620, 27 Law T. 207. Mr. Justice Sprarjuc, 
 on the other hand, in the case of Tiio.Osprey, U. S. D. C, Mass., 17 Law Reporter, 
 384, decided that in such a case the sailing vessel was bound to keep on her course, and 
 the steamer could go either to the right or to the left to avoid her. This decision pro- 
 ceeds on the ground that wherever an inequality exists, the vessel having the advan-
 
 200 ON TDE LAW OF SHIPPING. [bOOK I. 
 
 Generally, a steamer going on a customary route should keep 
 in her usual track.^ When a sailing vessel is drifting with 
 the current, it is the duty of a steamboat to avoid her, 
 although the latter is in the usual track for steamboats.^ If 
 a collision ensue between two steamboat's at their place of de- 
 parture, both leaving the same slip at the same time, both will 
 be considered to be in fault. But if one starts first, the other 
 must wait till the former gets under way.^ And if the boats, 
 are running in opposition to each other, both will be presumed 
 to be in fault, unless it is clearly shown that one is not to 
 
 tage is to keep out of the way, and the other must keep oh her course. He says the 
 expression that a steamer is considered as a vessel with the wind free is only applicable 
 to the case of steamers meeting vessels close-hauled. He also cites four cases as bear- 
 ing on the point. St. John v. Paine, 10 How. 557 ; Newton v. Stebbins, id. 586 ; The 
 Leopard, Daveis, 193; The Northern Indiana, 16 Law Reporter, 433. The Leopard, 
 perhaps, supports the position contended for, but the others are cases of steamers and 
 vessels close-hauled. There is a dictum of Mr. Justice Nelson, in St. John v. Paine, to 
 the effect that a steamer is always to avoid a sailing vessel, whether close-hauled or with 
 the wind free. Por this several English cases are cited, but none of them support that 
 branch of the proposition relating to vessels with the wind free. This dictum is cited 
 with approbation in the case of The Northern Indiana, and is supported hy an article 
 in the Law Reporter, vol. 18, p. 181. The rule established by Dr. Lusliinrjton seems 
 to rest on the principle (which appears to be reasonable), that the inequality between 
 a steamer and a vessel going free, provided she be not on a tack, is in reality so little, 
 that it does not counterbalance the propriety and superior advantages of each doing its 
 part to avoid tlie collision. In accordance with this view it was held, in Ward v. Arm- 
 strong, 14 111. 283, in a case of collision between a steamboat and a schooner, that as 
 the latter was running large before the wind, she was nearly as much in command as 
 the steamer, and as she saw the latter several miles off, and might have given her a 
 wide berth, the law would not consider the steamer in fault, since there was reasonable 
 care on her part. See also, The New Champion^ Abbott, Adm. 202. But in a recent 
 case, before the Supreme Court of the United States, the law as laid down by jNIi-. Jus- 
 tice Sprcujm has been established. The Steamer Oregon v. Rocca, 18 How. 570. The 
 court put their decision entirely on the ground that the general rule of law is, that a 
 steamer, meeting a sailing vessel, must avoid her, and that when a general rule is laid 
 down, it is practically rendered ineffectual by admitting exceptions to it. A collision 
 occurred on Long Island Sound during the summer of 1857, which illustrates the supe- 
 riority of the English, to the American rule. Two steamers were approaching each 
 other in the night time, and one Avas thought to be a sailing vessel ; consequently, the 
 other, in tlie exercise of its privilege, went to the left, but as the first went to the right 
 they came into collision. Had the English rule been observed, the misappreliension on 
 the part of the steamer would have been productive of no ill results. 
 
 1 New York & Virginia Steamship Co. v. Caldcrwood, 19 How. 241. 
 
 2 Saune v. Tourne, 9 La. 428; Fretz v. Bull, 12 How. 466. See also, Fashion v. 
 Wards, 6 McLean, C. C. 152; Ward r. The Sch. Dousmau, id. 231. 
 
 3 The Steamboat Boston, Olcott, Adm. 407.
 
 CII. VII.] COLLISION. 201 
 
 blame.^ Evidence that a boat was racing is admissible to show 
 negligence on her part.'-^ It has been held that if a raft is 
 driven by the wind into the channel of a river so as to obstruct 
 itj the master of a steamboat has no right to destroy it, as being 
 a nuisance, if it has not remained there an unreasonable time 
 and exertions are being made to remove it by the owners 
 of it.3 
 
 When a vessel is entering a harbor, she is bound to exercise 
 great care and diligence.^ The ordinary rules of navigation are 
 binding upon vessels meeting pilot boats ;^ and also on vessels in 
 the fishing business, on their fishing grounds.*^ A ferry-boat ply- 
 ing across a navigable river is bound to remain in her slip, not- 
 withstanding her regular hour of leaving has arrived, if any 
 vessel is seen, or is in a position to be seen, from on board of her, 
 with which she will be in danger of coming into collision if she 
 goes out; but she is not bound to lie waiting the expected 
 arrival of another vessel." If a ship at anchor and one in 
 motion come into collision, the presumption is, that it is the fault 
 of the ship in motion, unless the anchored vessel was where she 
 should not have been.^ The rule of law would seem to be the 
 
 1 The Steamboat Boston, Olcott, Adm. 407. 
 - Myers v. Perry, 1 La. Ann. 372. 
 3 Lallandc v. Steamboat C. D. Jr. 1 Newb. Adm. 501. 
 
 * Culbertson v. Shaw, 18 How. 584, 587; Ward v. The Sell. Dousman, G McLean, 
 C. C. 231. 
 
 5 The Clement, 2 Curtis, C. C. 363; The Tilot Boat Blossom, Olcott, Adm. 188. 
 
 6 The Sch. Summit, 2 Curtis, C. C. 150. 
 
 " The Columbus, Abbott, Adm. 384. See also, Eandolph v. The United Slates, 1 
 Newb. Adm. 497. 
 
 « The Lochlibo, 3 TV. Rob. 310, 1 En<j. L. & Eq. 651. In this case the Lochlibo 
 came into collision with a vessel at anchor. Dr. Lushimjton said : " As the Lochlibo 
 ran into a vessel which was incapable of helpini^ herself, it is her duty to prove, in or- 
 der to exonerate herself from the blame, that the collision arose from circumstances 
 which it was utterly out of her jiowcr to prevent, or that it was the fault of the pilot on 
 board, or that it arose fromthedefaultoftho.se on board the Aberfoylc." "Prima 
 facie, as was proi)erly and wisely admitted by the counsel, the Lochlibo is to blame for 
 having run down a vessel at anchor." See also. The George, 9 Jur. 670 ; The Massa- 
 chusetts, 1 W. Rob. 371 ; The Batavicr, 10 Jur. 19, 4 Notes of Cases, 356 ; s. c. tiom. 
 Netherlands Steamboat Co. v. Styles, 9 Moore, P. C. 286; The Scioto, Davcis, 
 359; The Victoria, 3 W. Rob. 49; The Girolamo, 3 Ilagg. Adm. 169, 173; 
 The Eolides, 3 Ilagg. Adm. 367; Culbertson v. Shaw, 18 How. 584; Steam- 
 boat New York V. Ilea, 18 How. 223; Dunn v. McComb, 11 La. Ann. 325. 
 If a vessel anchor in an improper place, she must take the consequences. Strout
 
 202 ox THE LAW OF SHIPPING. [bOOK I. 
 
 same where a vessel agi'ound is run into.i When a vessel has 
 been sunk in a navigable river the owner is bound to use reason- 
 able care to remove it, but if he is unable so to do, he may aban- 
 don his possession or right of possession and is not thereafter 
 liable for injuries sustained by vessels in striking against the 
 wreck.2 
 
 In general, established rules and known usages should be care- 
 fully followed ; for every vessel has a right to expect that every 
 other vessel will regard them ; but not where they would, from 
 peculiar circumstances, certainly cause danger, as if a vessel near 
 a rock or shore must strike it by putting her helm to port, which 
 the general rule might require; and no vessel is justified by a 
 pertinacious adherence to a rule, for getting into collision with 
 a ship which she might have avoided.^ And the ship that is 
 
 V. Foster, 1 How. 89 ; The Scioto, Daveis, 359. But whether she be in a proper place 
 or not, and whether properly or improperly anchored, the other vessel must avoid her 
 if it be practicable, and consistent with her own safety. Per Dr. Lushington in the case 
 of The Batavier, 10 Jur. 19. See also, Cummins v. Spruance, 4 Barring. Del. 315; 
 Knowlton v. Sanford, 32 Maine, 148. If a vessel is at anchor another must not an- 
 chor so near as to cause damage to her. Griswold v. Sharpe, 2 Cal. 17 ; The Volcano, 
 2 W. Kob. 337, 3 Xotes of Cases, 210. In this case the vessel had taken due precau- 
 tions against ordinary perils, and no accident would have occurred but for a hurricane, 
 which drove her from her moorings, and caused the collision. She was held liable. 
 And if a vessel is moored along-side of another at a wharf, she is responsible for all in- 
 juries resulting from her proximity wiiich human skill or precaution could have guarded 
 against. Vantiue v. The Lake, 2 Wallace, C. C. 52. See also. Steamboat United 
 States V. Mayor, 5 j\Io. 230 ; luman v. Funk, 7 B. Mon. 538 ; Beane v. The Mayurka, 
 2 Curtis, C. C. 72 ; The Bark Lotty, Olcott, Adm. 329. 
 
 1 Kelsey v. Barney, 2 Kern. 425. In this case a vessel lay aground across tlie channel of 
 a harbor where vessels had never before been known to ground or obstruct the passage, 
 and not being discovered was run into ; held, that the defendant was not necessarily in 
 fault, although those in charge of his vessel, by their utmost vigilance, might have seen 
 the plaintiff's vessel in time to have stood off. The question was held to be, whether 
 on all the facts of the case the defendant was guilty of negligence. 
 
 2 White V. Crisp, 10 Exch. 312, 26 Eng. L. & Eq. 532. It was also decided in this 
 case that the liability of the owner passed to the vendee by a sale of the wreck, and 
 that a plea that the wreck was lying in a part of a navigable channel, which was not 
 ordinarih' passed over by vessels, except during stress of weather, was bad. 
 
 3 Allen V. Mackay, U. S. D. C, Mass., 1853, 16 Law Reporter, 686; The Vander- 
 bilt, Abbott, Adm. 361 ; The Friends, 1 W. Rob. 478, 485, 7 Jur. 307. In The Com- 
 merce, 3 W. Rob. 287, it was held that -where there is a probability of a collision, a 
 vessel, on the larboard tack, and close-hauled, is not justified in pertinaciously keeping 
 on her course, although the vessel she meets is on the starboai-d tack, and with the 
 wind free. W^here practicable, she is bound to take the necessary pi'ccautions for avoid- 
 ing the collision, although the other vessel is acting wrongfully in not giving way in
 
 en. VII.] COLLISION. 203 
 
 not disabled is bound to render all possible assistance to the 
 other, although that other may be alone in fault.^ It has been 
 held, that in case of collision between two American vessels in 
 a foreign port, the rights of the parties will depend, even in 
 an action in this country, upon the law of the place where the 
 collision took place.^ 
 
 time. See also, Bark St. John v. Bark Mary Bannatyne, Vice Adm. Court, Lower 
 Canada, 18 Law Reporter, 528, 531 ; The Hope, 1 W. Rob. 154, 15G ; The Niagara, 
 Vice Adm. Court, Lower Canada, June 2, 1854, 17 Law Reporter, 336, 341 ; The 
 Lady Anne, 1 Eng. L. & Eq. 670; The Shannon, 2 Hagg. Adm. 173; Lowry v. 
 Steamboat Portland, 1 Law Reporter, 313 ; St. John v. Paine, 10 How. 557 ; Moore 
 V. Moss, 14 III. 106; Hawkins v. Dutchess & Orange S. Boat Co. 2 "Wend. 452; 
 Minor v. Ship Astracan, 2 Whart. Dig. 085 ; Poster v. The Sch. Miranda, 1 Newb. 
 Adm. 227, 6 McLean, C. C. 221 ; The Santa Claus, Olcott, Adm. 428 ; Handaysyde 
 V. Wilson, 3 Car. & P. 528. In the case of The Blenheim, 10 Jur. 79, a steamer was 
 run into by a vessel being launched. It was held, that as the steamer might have 
 avoided the collision by going more to the north, she was liable. A view, somewhat 
 different from the general one, has been recently taken by the Supreme Court of the 
 United States. After stating the general rule relating to the case of a steamer meet- 
 ing a sailing vessel, the court said : "Practically, when a rule for this purpose is laid 
 down, it is rendered inetfectual by admitting exceptions to it. The mind begins to 
 waver as soon as the danger arises, and the exception, rather than the nile, becomes a 
 subject of solicitude with the masters of both boats ; and this practically annuls the 
 rule, and causes the movements of both vessels to be uncertain. If the rule were abso- 
 lute, and an insuperable difficulty should prevent one of the boats from observing it, it 
 would be safer and better, to slow the vessel, or stop it, until the danger shall be 
 past. This would occur so seldom as to be inappreciable, when compared to tiie safety 
 it would secure." The Steamer Oregon v. liocca, 18 How. 570, 572. And Mr. Justice 
 Curtis, in a subsequent case in the same volume. Crockett v. Newton, p. 581, 583, 
 speaking of the general rule, said : " And though this rule should not be observed 
 when the circumstances are such that it is apparent its observance must occasion a col- 
 lision, while a departure from it will prevent one, yet it must be a strong case which 
 puts the sailing vessel in the wrong for obeying the rule. The court must clearly see, 
 not only that a deviation from the rule would have prevented a collision, but that the 
 commander of the sailing vessel was guilty of negligence, or a culpable want of sea- 
 manship in not perceiving the necessity for a departure from the rule, and acting 
 accordingly." See also, Wheeler v. The Eastern State, 2 Curtis, C. C. 141. And, in 
 the case of The Test, 5 Notes of Cases, 276, it was held, that it was no defence to a 
 vessel clearly in the wrong, tliat the other vessel might, by departing from the ordinary 
 rules of navigation, have avoided the collision. 
 
 1 The Celt, 3 Hagg. Adm. 321. In this case it was held, that a vessel, which did 
 not render assistance after the collision, should pay costs, although she was, in no rc- 
 sjicct, otherwise in fault. 
 
 - Smith V. Condry, 1 How. 28. A ditferent rule is, however, laid down in the case 
 of The Vernon, 1 W. Rob. 316. It is there held, that where a party seeks a remedy, 
 he must take it according to the law of that country in wliich it is to be enforced. See 
 also, Tlie General Steam Nav. Co. v. Guillou, 1 1 M. & W. 877 ; Tiie Johann Priederich, 
 .1 W. Rob. 35.
 
 204 ON THE LAW OF SHIPPING. [BOOK I. 
 
 In measuring the damages in a case of collision, all the direct 
 and immediate consequences are to be taken into consideration; 
 as loss of freight, detention, expense, and the like.^ Whether 
 damages are to be allowed for the detention of the injured vessel 
 while undergoing repairs, may not be certain ; but the later, and, 
 we think, the better rule, allows them.^ The rule in insurance, 
 
 1 In The Countess of Durham, 9 Month. Law Mag. (Notes of Cases), 279, the law 
 is stated with great precision by Dr. Lushington. He says : " No doubt by the law of 
 this court, when it is clearly proved that one vessel is the wrongdoer, the owners of that 
 vessel are, to the extent of its value, responsible for all the damage which occurred 
 through the default or neglect of her master or crew, and not only the immediate dam- 
 age, but they would be responsible also for what we call consequential damage, that is, 
 all damage which may subsequently take place that could be fairly attributed exclu- 
 sively to the act of the original wrongdoer : and this principle of law is based, like all 
 others, upon reason and common sense." And wliere a vessel was run into, and ren- 
 dered unmanageable, in consequence of which she afterwards, but during the same 
 night, got upon a sand bar, it was held, that the other vessel, being in fault in causing 
 the collision, was liable for the subsequent damage. The Mellona, 3 W. Rob. 7. See 
 also, The Steamboat Narragansett, Olcott, .Adm. 246. In such a case it has been held, 
 that the burden of proof is on the vessel causing the original damage, to show that 
 the subsequent injury was caused by the want of ordinary nautical skill and prudence 
 on the part of the master of the damaged ship. The Pensher, Eng. Adm., 20 Law 
 Reporter, 471. And in the case of The Gazelle, 2 W. Rob. 279, 284, Dr. Lusldnr/ton 
 says the party is to be put in the same situation, as nearly as possible, as he would 
 have been in if no collision had taken place. In The Pactolus, Eng. Adm. Ct., 20 
 Law Reporter, 226, it was held, that the expenses of rcjiairing the vessel were to be 
 allowed, although the vessel was thereby rendered more valuable than before the col- 
 lision. Where a boat was several times maliciously i-un into, Mr. Justice Ilopkinson 
 held, that damages should be given for the loss consequent on the passengers being 
 prevented from going in the boat by reason of the collisions. Ralston v. The State 
 Rights, Crabbe, 22. And in Steamboat Co. v. Whilldin, 4 Hamng. Del. 228, 233, it 
 was held, that if the boat was purposely run into, vindictive damages might be given. 
 But, if not purposely, compensatory only, to enable the owners to put her in as good 
 order as before, but no allowance was to be made for supposed profits. See also, The 
 Steamboat Narragansett, Olcott, Adm. 246 ; The Bark Lotty, id. 329, 334 ; Myers v. 
 Perry, 1 La. Ann. 372; and Cummins v. Spruance, 4 Earring. Del. 315, where the 
 same rule was adopted, and it was also held, that if the vessel received injuries which 
 could not be repaired, damages were to be allowed for her impaired value. See also, 
 Atchison v. Steamboat Dr. Franklin, 14 Mo. 63 ; The Pilot Boat Blossom, Olcott, 
 Adm. 194. 
 
 2 In some of the cases above cited and in Smith v. Condiy, 1 How. 28, they were not 
 allowed. But the last case has been virtually overruled by a late case in the same 
 court, and we consider the well-settled rule of law now to be, that where a vessel is run 
 into while performing a particular voyage, or while engaged in the usual course of her 
 employment, the profits which she would have made but for the accident are to be 
 allowed. Thus, in Tiie Gazelle, ut sup., the gross freight for the voyage was allowed, 
 deducting from it the expenses incident to its receipt, such as wages, pilotage, lighter- 
 age, tonnage, etc. See also, Yates v. Whyte, 4 Bing. X. C. 272, 5 Scott, 640 ; Jones
 
 en. VII.] COLLISION. 205 
 
 of one third off, new for old, docs not apply to a claim for dam- 
 ages from collision, excepting in an action on the policy.^ 
 
 V. Whyte, 2 Jur. 303; The Eolides, 3 Hagg. Adm. 367 ; Tindall v. Bell, 11 M. & W. 
 228. And where a vessel was engaged in a salvage service, and was run into, and 
 thereby prevented from completing it, it was held, that the sum, which she would 
 otherwise have earned, miixht be recovered. The Betsey Caines, 2 Hagg. Adm. 28. 
 In The Yorkshireman, 2 Hagg. Adm. 30, note, a fishing smack was on a voyage from 
 London to Norway, to receive a cargo of lobsters. Having been run into, another 
 vessel was employed to finish the voyage, and it was held, that the amount of freight 
 which was paid to this vessel should be allowed as damages. In a somewhat similar 
 case Dr. Lushington held, that if it could be satisfactorily proved that the owners of the 
 vessel used every possible exertion to pursue the voyage and could not, damages would 
 be allowed. The Aline, 5 Month. Law Mag. 302. In Smith v. Condry, 1 How. 28, 
 the plaintiff offered to prove that his ship at the time of the collision was loaded with 
 salt, and ready to sail for the Georgetown market, and that if she had sailed she would 
 have arrived there in due time for the fishing season, but owing to the collision she did 
 not arrive there till after it was over, and that her loss thereby amounted to over two 
 thousand dollars. This evidence the court refused to admit, and held, that the actual 
 damage sustained b}- the party at the time and place of the injury was the measure of 
 damages. This question came before the same court in a later case brought up by writ 
 of error from the Circuit Court of the United States for the district of Ohio. The case 
 was argued at great length by counsel, and the principles, on which the right to recover 
 for loss of profits, rest, clearly elucidated by the court. The judge in the court below 
 instructed the jury that if they found for the plaintiff, they sliould give him damages, 
 which would remunerate him for the expenses incurred in raising the boat and repair- 
 ing her, and also for the use of her darincj the time lost hy reason of the collision. (Ban'ett 
 V. Williamson, 4 McLean, C. C. 589.) This ruling was affirmed by the supreme court. 
 Mr. Justice Nelson said : " But if it can be shown, that the vessel might have been 
 chartered during the period of the repairs, it is impossible to deny that the owner has 
 not lost in consequence of the damage the amount which she might have thus earned. 
 The market jjricc, therefore, of the hire of the vessel, applied as a test of the value of 
 the service, will be, if not as certain as in the case where she is under a charter-party, 
 at least, so certain that, for all practical purposes, in the administration of justice no 
 substantial distinction can be made. It can be ascertained as readilv, and with aj- 
 much precision, as the price of any given commodity in the market, and affords as. 
 clear a rule for estimating the damage sustained on account of the loss of her scrv-icc 
 as exists in the case of damage to any other description of personal property of w.hiich: 
 the party has been deprived." Williamson v. Barrett, 13 How. 101, 111. See also. 
 The Inflexible, Eng. Adm., 20 Law Bciwrter, 471 ; The Steamboat Rhode Island, 01- 
 cott, Adm. .^)05, Abbott, Adm. 100 ; Ilalderman i: Beckwith, 4 McLean, C. C. 286. But 
 sec The Clarence, 3 W. Bob. 283, where evidence was offered that the boats of the 
 company to which the Clarence belonged, usually earned at least .£20 a dav, and a 
 demurrage of .£260, founded upon this estimate was claimed, as damages. Dr. Ltish- 
 ington held, that the evidence was not sufficient ; that it did not follow as a matter of 
 course that any thing was due for the detention of a vessel while being repaired ; but. 
 
 1 The Gazelle, 2 W. Rob. 279 ; s. c. 8 Jur. 429 ; The Nautilus, Ware, 2d ed. .529, 
 534. Sec also, Williamson v. Barrett, 13 How. 101, 110, per J^^/son, J. ; also The 
 Hebe, 2 W. Rob. 530, 536. 
 
 VOL. I. 18
 
 206 ON THE LAW OF SHIPPING. [BOOK I. 
 
 Ill regard to the very difficult question, when the cause of the 
 loss is sufficiently near to make the responsibility of a party ex- 
 tend to it, and when it is too remote for that effect, the cases are 
 very conflicting, and it is, perhaps, impossible to lay down a rule 
 which would be satisfactory, and universal, or even general. 
 But we shall consider this question in the chapter on Insur- 
 ance ; and will pass it by here, adding only, that we prefer the 
 English and the later American adjudications on this subject to 
 the earlier American cases. 
 
 As to the costs in a case of collision, the general rule is the 
 same in admiralty as at common law; but in the exercise of its 
 equitable power, admiralty may hold the party that wins to pay 
 costs.i And when the damage occurs by inevitable accident, no 
 costs are given. "^ 
 
 that it must be proved that the vessel would have earned freight, and that such freight 
 was lost by the collision. See also, The Hebe, 2 W. Rob. 530. And when a vessel is 
 sunk, and full damages are allowed as for a total loss, the plaintiff cannot recover any 
 thing in the nature of a demurrage for loss of the employment of his vessel or his own 
 earnings. The Columbus, 3 W. Rob. 158. And the language of the court in this case 
 would show that in case of a total loss nothing beyond the value of the vessel can be 
 recovered by way of increasing the damages. 
 
 1 The general rule is thus stated by Dr. Lusliington in The Christina, 8 Jur. 321 : 
 " The party, who fails in any suit, except under very peculiar circumstances, should 
 pay the whole of the costs, not as a punishment on that party, but upon the principle 
 of indemnification to the party sued, who has been put to the expense of a suit com- 
 menced without sufficient ground, in fact, or in law, to warrant its institution." It was 
 laid down in The Shannon & The Placidia, 7 Jur. 380, 1 W. Rob. 463, and in Tiie Co- 
 lumbus, Abbott, Adm. 384, that, where neither was to blame, each should bear his own 
 costs. But in a similar case, as the court considered the action was brought without 
 cause, the party bringing it had to pay costs. The Thornley, 7 Jur. 659. In Hay v. 
 Le Neve, 2 Shaw's Scotch Appeal Cases, 395, both vessels were in fault, one a little 
 more than the other ; held, that each siiould pay his own costs. See also. The DcCock, 
 5 Month. Law Mag. 303, 2 Law Reporter, 311 ; The Monarch, 1 W. Rob. 21 ; Foster 
 V. The Sch. Miranda, 1 Newb. Adm. 227, 6 McLean, C. C.221. In The Montreal. 24 
 Eng. L. & Eq. 580, it was held, that each should pay its own costs, although one ves- 
 sel was not liable for any part of the damage, being at the time under the control of a 
 pilot. In Lenox v. Winisimmet Co. 11 Law Reporter, 80, the costs were equally 
 divided. But in Rogers v. The Brig Rival, 9 Law Reporter, 28, the vessel most in 
 fault bore all the costs. The general nile, as has been stated, is that when a libel is 
 dismissed the respondent shall be entitled to costs. See The Catherine of Dover, 2 
 Hagg. Adm. 145, 154. But in The Scioto, Daveis, 359, though the libel was dis- 
 missed, costs were not allowed the respondent as the court considered, under all the 
 circumstances of the case, that the libellant was not to blame in bringing the action. 
 
 2 The Itinerant, 8 Jur. 132, 2 W. Rob. 236, 244 ; The Ebenezer, 2 W. Rob. 206, 
 213.
 
 CH. VII.] COLLISION. 207 
 
 By the later and better authority, it would seem that a col- 
 lision gives to the suffering ship a lien on the ship causing the 
 damage.^ But this lien lasts only long enough to give the in- 
 jured party a reasonable opportunity to enforce it- 
 
 See also, The George, 4 Notes of Cases, 161. If the damage done is slight, and the 
 party has an adequate remedy therefor in a common law court, costs will not be 
 allowed. The Steamboat Boston, Olcott, Adm. 407. When a case has been decided 
 and sent to a referee to determine the amount of the damage, the general rule undoubt- 
 edly is, that the lo.'^ing party shall pay the costs of the reference. But to this rule there 
 are exceptions. Thus, in the case of Tlie Nimrod, 24 Eng. L. & Eq. 589, the claim 
 was .£3,121. The report allowed £1,736. A tender was made before the reference of 
 £1,685. The four principal items disallowed amounted to £1,109. The claimants 
 were condemned in the costs of the reference as to these items, and in the costs of the 
 motion. In The Cynthia Ann, 24 Eng. L. & Eq. 579, the sum demanded was £275, 
 the amount allowed was only £91. The court held, that the sum demanded was so 
 much larger than that granted by the reference that the claimant should pay the costs 
 of the reference and of the motion, as the other party was thereby prevented from mak- 
 ing a tender. In The Celt, 3 Hagg. Adm. 321, it was held, that though a vessel was 
 not in fault in causing the collision, yet if she did not render assistance after it, she 
 would be liable for the costs. Dr. Lushinc/lon, in the case of The Duke of Sussex, 1 
 AV. Rob. 270, observed, that where the government was a party, although there had 
 been much wavering upon the subject, he apprehended the true principle to be that the 
 crown neither gave nor took costs. 
 
 1 Dr. LushhKjton, in The Volant, 1 "W. Rob. 383, 387, is reported to have said, 
 that the damage does not create a lien. See, however, The Bold Buccleugh, 3 W. 
 Rob. 220, 2 Eng. L. & Eq. 536. When this latter case came before the privy council, 
 on appeal, the subject received an elaborate discussion, and it was held that a lien 
 existed. The collision took place December 14, 1848. On the 19th suit was com- 
 menced in England, but the ship left the country before she could be arrested. Subse- ' 
 quently, the vessel being in Scotland, a suit was commenced against her there and bail 
 given. In August, 1849, the vessel having returned to England, an action was again 
 brought against her, and she was arrested. The lien was enforced, though the vessel 
 had been sold on the 26th of June previous. Sir John Jervis, in delivering the opinion 
 of the court, speaking of the dictum of Dr. Lushimjton, above referred to, said : " By 
 reference to a contemporaneous report of the same case, 1 Notes of Cases, 508, it seems 
 doubtful whether the learned judge did use the expression attiii)uted to him by Dr. W. 
 Robinson. If he did, the expression is certainly inaccurate, and being a. dictum merely, 
 not necessary for the decision of the case, cannot be taken as a binding authority." 
 Harmer v. Bell, 7 Moore, P. C. 267, 22 Eng. L. &. Eq. 62. In this country tlie current 
 of authorities is in favor of the lion. In the ciise of The Creole, Legal Intelligencer, 
 May 7, 1852, Mr. Justice Ku»e said that, though there was, properly speaking, no lien 
 in cuUision, because the subject was tort, yet the vessel would be liable even in the 
 hands of a purchaser. In the same court it has been held, that collision creates a lien. 
 Edwards v. The Steamer R. F. Stockton, Crabbc, 580. See also. The America, U. S. 
 D. C, Northern District of N. Y., 16 Law Reporter, 264. 
 
 2 Where the libel was not filed till more than twenty months after the collision, dur- 
 ing which time the vessel had been sold, the colliding vessel was held not to be respon- 
 sible. The Admiral, U. S. D. C, Mass., 18 Law Reporter, 91.
 
 208 ON TUB LAW OF SHIPPING. [bOOK I. 
 
 The question has arisen, when a vessel or canal boat is in tow 
 of a steam tug, and collision occurs, which is responsible, the 
 steam tug or the vessel in tow ? It is obvious that two perfectly 
 distinct views may be taken of the relation between them. Ac- 
 cording to one, the vessel towing is but the servant of that 
 which is towed ; this latter is the master, and is responsible for 
 the acts of the former as its servant. According to the other, 
 the vessel towed is for the time under the absolute control of the 
 vessel towing, and this latter is therefore responsible for any mis- 
 chief done. We apprehend it to be an error to assume that 
 either of these relations must exist in any particular case. The 
 inquiry should always be, which party is the principal, and which 
 the servant. And wherever the relation of principal and agent 
 exists, the case should be decided on the principles of agency. 
 Generally, we should say that the tug was probably the servant, 
 and the vessel which employed her the principal, and responsible 
 as such. But it will be seen that the cases are in irreconcilable 
 conflict.^ 
 
 ^ It may be clear that an action will lie against the ship where she is the immediate 
 cause of the damage. The Carolus, 2 Curtis, C. C. 69 ; but is the tug also liable 1 
 In a late case before the United States District Court for the District of Massachusetts, 
 Mr, Justice Sprar/ue held that it was. The Steamer R. B. Forbes, 19 Law Reporter, 
 544. The action was in rem against the steamer for damages caused by a collision be- 
 tween a schooner owned by the libellant, and the " Romance of the Seas," a vessel of 
 about one thousand six hundred tons, towed by the steamer, and firmly lashed to her 
 side. The evidence was conflicting as to the point whether the orders for managing 
 the two vessels were given by the officers of tlie tug or by those of the ship. But the 
 learned judge held, that it would make no difference, as to third parties, whether the 
 tug was under the control of the officers or the pilot of the ship. The fact was also 
 relied on that the action was in rem, and " the offending thing " was liable. It was 
 also said, that it was not necessaiy to be decided whether the ship might not also be 
 responsible. It is clear, however, that unless the ship was regarded as under the con- 
 trol and direction of the tug, the latter could not have been held liable, for in this case 
 the ship was "the offending thing," the direct cause of the collision. A similar decis- 
 ion was rendered in Oakman v. Steamboat Rescue, U. S. D. C, Mass., Boston Cou- 
 rier, Feb. 16, 1858. In Sproul v. Hemmingway, 14 Pick. 1, the action was brought by 
 the owner of a vessel run into by the vessel of the defendant. It appeared that the 
 colliding vessel was being towed astern of a steamer down the Mississippi, and the col- 
 lision Avas caused by the negligence of the master and crew of the steamer. It was held, 
 that the defendant was not liable. Speaking of the case of a vessel towed by the side 
 of a steam tug, the court said : "The payment for the privilege of being thus moved 
 or transported, is precisely like freight paid, for heavy luggage, timber, or spars, for 
 instance, carried in or upon a ship. The whole conduct and management is entirely 
 under the control of the master and crew of the towing vessel in the one case, as it is
 
 CH. Vir.] COLLISION. 209 
 
 In admiralty, the evidence of all persons on board is admit- 
 ted ex necessitate rei, unless the person is interested as part 
 
 of the freighting ship, in the other. If collision takes place between the side ship, thus 
 firmly lashed, and another vessel, it is as directl}' attributable to the steamboat, and her 
 officers and crew, as if the steamboat herself had come into collision with the other ves- 
 sel. The towed ship is the passive instrument and means, by which the damage is done. 
 But there is no difference, in this respect, between the condition of one of the side ships 
 and a ship towed astern, except this ; that on board the ship towed astern by means 
 of a cable, something may and ought to be done by the master and crew, in steering, . 
 keeping watch, observing and obeying orders and signs, and if there be any want of 
 care and skill in the performance of these duties, and damage ensue, then the case we 
 have been considering does not exist ; the damage is attributable to the master and 
 crew of the towed ship, and they and their owners must sustain it." These cases are 
 in direct variance with two decisions in the Circuit Court of the United States for 
 the Eastern District of Pennsylvania. Smith v. The Creole, 2 Wallace, C. C. 48.5 ; 
 and The Steam Tug Sampson, 3 Am. Law Register, 337. In both these cases 
 the actions were in rem against the tugs, but the court held, that tugs were but ser\'ants 
 of large vessels, and therefore were not responsible to third parties. In England the 
 law is the same. In The Duke of Sussex, 1 W. Rob. 270, the action was in rem 
 against the tug. It was set up in defence that at the time of the collision she was tow- 
 ing a vessel, and under the direction of a pilot on board such vessel. Dr. Lnshington • 
 held, that if the orders of the pilot were obeyed, the owners of the vessel towed would 
 not be responsible ; but if not, they would be. And in The Gipsey King, 2 W. Rob. 
 537, where the action was brought against the vessel towed, he said : " Now I have, 
 upon former occasions, already expressed my opinion, that a vessel in charge of a, 
 licensed pilot, whilst in tow of a steam tug, is, under ordinary circumstances, to be 
 considered as navigated by the pilot in charge. That if the course pursued b\' the 
 steam tug is in conformity with his directions, and a collision takes place, the pilot is 
 responsible, and not the owners of the vessel, or of the steam tug. If, on the contrary, j 
 the steamer disregarded the directions of the pilot, and the collision was occasioned by i 
 her misconduct, the owner of the ship would, in this case, be responsible, in this court, ' 
 as for the acts of their servant ; and they must seek their redress against the owners of j 
 the steam tug in some other form of action." See also. The Christina, 3 W. Rob. 27; 
 The Kingston-By-Sea, 3 W. Rob. 152. In this ca.se Dr. Luslungton said, addressing 
 the Trinity Masters : "It is well known, that, according to your rules, a steamer is al- 
 ways to be considered as having the wind free ; and by the decisions in this court, a | 
 steamer towing another vessel is to be considered as in the service of the owners of the ( 
 vessel she has in tow, and the owners of the vessel in tow are responsible for the acts I 
 of the steamer." It will thus be seen that by the Supreme Court of Massachusetts, and 
 by Mr. Justice Spnujm, the vessel is regarded as under the control of the tug, and the 
 latter, therefore, is held liable, while, on the other hand, the tug is regarded as the ser- 
 vant of the vessel by the English Admiralty, and by the Circuit Court of the United 
 States for the District of Pennsylvania. 
 
 It seems to be well settled that canal boats and barges in tow are considered as being 
 under the control of the tug, and the latter, therefore, is liable. The John Counter, 
 Vice Adm. Ct. Lower Canada, 18 Law Reporter, 553 ; The Express, 1 Blatchf. C. C 
 365, overruling the same case in the District Court, Olcott, Adm. 258. See also, 
 Steamboat New York v. Rea, 18 How. 223. 
 
 18*
 
 210 ON THE LAW OF SHIPPING. [bOOK I. 
 
 owner.^ And the admissions of the master are competent 
 evidence against his owners ; but admissions of the mate and 
 crew are not, unless made at the time of the collision, so as to 
 form part of the res gestcc? 
 
 It has been held that an action at common law for damages 
 caused by a collision, will not affect the jurisdiction of the 
 admiralty, and that the verdict of the jury upon the facts of the 
 case will not be conclusive upon the judgment of the admiralty 
 court.3 When a collision occurs on a river which serves as the 
 boundary of two States, in order to determine in which State it 
 took place, the middle of the river is considered as the boundary 
 line.4 
 
 When a vessel is sunk by a collision, and subsequently raised 
 by the owner of the colliding vessel and towed into port, the 
 question has arisen whether the former owner is bound to take 
 her, or whether he may recover damages as for a total loss. It 
 has been held that the former owner is not obliged to take her 
 back, after being raised, in an unrepaired state, but the point is 
 still an open one whether she may be repaired and tendered back.^ 
 
 1 The Ccatherine of Dover, 2 Hagg. Adm. 145, and cases cited in note, p. 149. 
 
 2 The Midlothian, 5 Eng. L. & Eq. 556. See also. The Enterprise, 2 Curtis, C. C. 
 317, 320. But such declarations or admissions will have but little weight in oi)position 
 to their deliberate testimony as to the facts. The Steamboat New Jersey, Olcott, Adm. 
 415. 
 
 3 The Ann & Mary, 2 W. Rob. 189, 190. See also, Souter v. Baymore, 7 Barr, 
 415, s. c. Knox v. The Ninetta, Crabbe, 534. 
 
 * Myers v. Perry, 1 La. Ann. 372. 
 
 5 In The Columbus, 3 W. Rob. 158, the vessel was raised but not repaired, and 
 notice given to the agent of the owner of the fact, with an intimation that the owner 
 of the Columbus was ready to deliver up the same, and that he would not be responsi- 
 ble for any further damage or expense that might be incurred by her remaining unre- 
 paired. Dr. Liislihirjton said, that the principle of abandonment as applied to insurajice 
 cases, did not apply to cases of collision ; that if a vessel is run into and partially 
 damaged, th» owner is bound to bring her into port if possible, but if she is sunk, it is 
 not incumbent on the owner to go to any expense whatever for the purpose of raising 
 her, and tliat if, when she was raised, he was obliged to receive her l)ack, he was not 
 bound to repair her, but might leave her lying in port. Under all the circumstances of 
 the ease, it was held that the libellant was entitled to recover the whole value of his 
 vessel, and that the respondent was entitled to have the vessel. The court said the 
 proper course for the parties to have pursued would have been " to have applied to the 
 court, stating the circumstances in which the vessel was, and to have called upon the 
 court to decree a sale of the vessel, and that the proceeds might be brought in to abide 
 the result of the suit." Whether the owner of the colliding vessel could have rep.iired 
 her and tendered her back, after she was raised, was not decided.
 
 en. VIZ.] COLLISION. 211 
 
 It is no defence to a suit for damages caused by a collision, 
 that no loss would have been sustained if the injured vessel had 
 been stronger.^ 
 
 A question has arisen in regard to the right of a vessel to ob- 
 struct a navigable stream by means of a warp; and it has been 
 held that a vessel has the right to use one, and to extend it across 
 the entire channel, but on the approach of another vessel, it is 
 the duty of the vessel using the warp to take notice of the 
 approach of the other, and to lower the warp so as to give 
 ample space in the ordinary travelled part of the channel for her 
 to pass, and to give timely notice of the space so left, but it is not 
 bound to slacken so as to leave the entire channel free, and the 
 approaching vessel should take her course in the place pointed 
 out, but she may go elsewhere under a bond fide belief that the 
 water is deep enough, and if entangled in the warp may cut it,, 
 but the burden is on her to show in such a case that the pro- 
 ceeding was bond fide? 
 
 In some of the States of this country, statutes have been 
 passed regulating the manner in which steamboats should pass 
 each other. In other States the usage of the river governs. 
 The boat going with the current, generally is required to keep in 
 the middle of the stream, while the ascending boat keeps close 
 to either shore.^ Some courts, however, seem to. pay but little 
 regard to local usages.^ 
 
 1 Inman v. Funk, 7 B. Mon. 538. 
 
 2 Potter V. Pettis, 2 R. I. 483. 
 
 8 Williiimson v. Barrett, 13 IIow. 101; Goslce v. Slmtc, 18 IIo^v. 463 ; Jones v. 
 Pitcher, 3 Stew. & P. 135; Myers v. Perrj', 1 La. Ann. 372; Drew i'. Steamboat 
 Chesapeake, 2 Doug. Mich. 33 ; Steamboat Co. v. "VVhilldin, 4 Harring. Del. 228 ; 
 Moore V. Moss, 14 111. 106; Rogers v. McCune, 19 Mo. 557; Sinnott v. Steamboat 
 Dresden, 1 Ncwb. Adm. 474 ; Bates v. Steamboat Natchez, id. 489. 
 
 * Wheeler v. The Eastern State, 2 Ctutis, C. C. 141 ; The Clement, id. 363, 370.
 
 212 ON THE LAW OF SHIPPING. [eOOK I. 
 
 SECTION ^^I. 
 
 OF THE CLABI FOR DAMAGES FOR NON-DELIVERY OF THE GOODS OR 
 INJURY TO THEM. 
 
 If there be a refusal to deliver the goods, or a delivery to a 
 wrong person, or damage to, or loss of the cargo, for which the 
 ship is responsible, the next question is, Who may make the claim 
 for the goods, or their value, or for compensation for damage, 
 and sustain an action grounded upon it? The consignor has 
 shipped the goods, but has shipped them to the consignee ; and 
 which of these parties should make the claim? There has been 
 some conflict, and may yet be some uncertainty in respect to 
 this question ; but we think the general principles applicable to 
 this question ought to be sufficient to decide it. 
 
 Thus, if goods are shipped by the order of A, and an unin- 
 dorsed bill of lading is sent to him, and he nevertheless gets 
 possession of the goods by stating to the captain that he is the 
 owner, the ship-owner is responsible to one to whom an indorsed 
 bill of lading is sent.^ But it has been held that if the first 
 party, who gets possession of the goods in this way, does not 
 know that an indorsed bill is sent to anybody else, the holder 
 of the indorsed bill has no remedy against him.^ In this case 
 the holder of the goods had an equitable title to them, but if a 
 party has received the goods who has no title to them, both he, 
 and the master who delivered them, should be responsible to 
 him who has the title. But if an indorsed bill be sent, and 
 the goods obtained under it, the master is not bound to re- 
 spond for the goods to one to whom another indorsed bill was 
 subsequently sent ; but, on the contrary, if this other gets posses- 
 sion of the goods, the first consignee may bring trover against 
 him for them.^ 
 
 If goods are sent to a consignee, with an indorsed bill of 
 
 1 Brandt i'. Bowlby, 2 B. & Ad. 932. 
 
 - Coxe t'. Harden, 4 East, 211. 
 
 » Walley v. Montgomery, 3 East, 585.
 
 CH. VII.] DAMAGES FOR NON-DELIVERY OF GOODS. 213 
 
 lading, the property to be the consignee's on delivery, no ques- 
 tion can be made but that he may sue for damages if the goods 
 are injured. But it has been said that if they are to remain 
 the consignor's property, being sent to the consignee only for 
 sale, or if the consignee is for any purpose only the agent for 
 the consignor, then the action must be in the consignor's name. 
 We doubt this, however ; and prefer the cases in which it is held 
 that the consignee may bring the action in his own name. In 
 the first place he has a special property in them, for his commis- 
 sions, charges of entry, etc., and is certainly entitled to their 
 possession ; and if he be a mercantile agent for any purpose, he 
 would, in almost every case, have some degree of special prop- 
 erty in them, of this kind. 
 
 There are supposable cases, perhaps, in which goods may be 
 sent to one who is so nakedly an agent of the owner for merely 
 receiving what is brought in the condition in which it comes, 
 that he can bring no action whatever in his own name, either for 
 the goods themselves, or for any injury done to them. Gener- 
 ally, however, we should say the rule of law was, that a con- 
 signee with an indorsed bill, or any commercial agent authorized 
 to take and hold possession of the goods, and deal with them as 
 factor or in any such way, might bring an action in his own 
 name, either for the goods themselves if they were withheld, or 
 for compensation if they were delivered in an injured condition.^ 
 
 1 It is laid down in some cases that the party who employs the carrier, is the one to 
 sue. Davis t- . James, 5 Burr. 2680 ; Jloore v. Wilson, 1 T. R. C59 ; Freeman v. 
 Birch, 1 Nev. & M. 420, 3 Q. B. 492. Where tiic property is to vest in tlie vendee on 
 delivery to the carrier, the vendee must sue, because the vendor in making tlie contract 
 with the carrier acted merely as the agent of tlie vendee. Dawes v. Peck, 8 T. I?. 
 330; Coats v. Cliaplin, 3 Q. B. 483 ; Dunlop v. Lambert, 6 Clark & F. 600. In Van 
 Ca.stcel r. Booker, 2 Exch. 691 , 708, Parke, B., said : " The contract for carriage, which 
 the bill of lading is, is made expressly with tlic consignor, and he no doubt might sue 
 upon it, tliougli in making it, he was merely acting as agent of and for tlie consignee. 
 But if lie made it as agent for and on behalf of the consignee, the consignee, also, as being 
 the real principtd, might sue if there had been a breach of the contract to carry." The 
 bill of lading in tliis case made the goods deliverable to the consignor. But the cases 
 generally adopt tlie rule that the party liaving the right of proi)erty and the right of 
 possession is the one to sue, whether consignor or consignee. Tiudal c. Taylor, 4 
 Ellis & B. 219, 28 Eng. L. & Eq. 210, 216; Potter v. Lansing, 1 Johns. 215 ; Dawes 
 V. Peck, 8 T. R. 330; Dutton v. Solomonson, 3 B. & P. 582 ; Brown r. Hodgson, 2 
 Camp. 36; Fragano v. Long, 4 B. & C. 219; Ludlow v. Bowne, 1 Johns. 1 ; Do 
 Wolf V. N. Y. F. Ins. Co. 20 Johns. 214; Price v. Powell, 3 Comst. 322; Everett v.
 
 214 ON THE LAW OF SHIPPING. [BOOK I. 
 
 One remark may be added ; it is that the master of a ship 
 will very seldom do wrong, or incur any responsibility, by adher- 
 ing rigorously to the letter of his contract, and complying exactly 
 with the obligations he assumes by the bill of lading. 
 
 We have seen that the ship-owner cannot require of the ship- 
 per to accept the goods at any other place than that of their 
 
 Saltus, 15 Wend. 474; Jones v. Sims, 6 Port. 138; Ilsley v. Stubbs, 9 Mass. 65 ; The 
 Venus, 8 Cranch, 253; The Mcrrimac, 8 Cranch, 317; The Frances, 9 Cranch, 183; 
 The Frances, 8 Cranch, 354; Swain v. Shepherd, 1 Moody & 11. 223; Brandt v. 
 Bowlby, 2 B. & Ad. 932 ; Mitchel v. Ede, 11 A. & E. 888; Dows v. Cobb, 12 Barb. 
 310. In Moore v. Sheridine, 2 Har. & McH. 453, the goods were to be delivered by 
 the bill of lading to Mr. Hollingsworth, or at the head of Elk. The consignor brought 
 an action for the non-delivery. The court held that the goods being deliverable to H., 
 or other persons at the head of Elk, the action was well brought by the consignor, but 
 did not determine whether the action could have been supported if the goods had been 
 deliverable to one person only. In Griffith v. Ingledew, 6 S. & R. 429, goods were 
 shipped by the consignor on his own account and risk, but they were deliverable by 
 the bill of lading to the consignee or his assigns. It was held that the consignee 
 might maintain an action in his own name for damage done to the goods. The decis- 
 ion was put on the ground that the legal property in the goods passed, by the bill of 
 lading, to the consignee, although he held it in trust for the consignor. Chief Justice 
 Gibson, however, dissented. The earlier cases are commented on at great length, and 
 the case is worthy of a careful perusal. Whether the rights of the consignee to such 
 an extent are supported by the weight of authority, it is well settled that prima facie 
 the property in the goods will be considered to be in him, and he will be entitled to 
 sue, in the absence of proof to the contrary. Lawrence v. Minturn, 17 IIow. 100; 
 The Ship Middlesex, U. S. C. C, Mass., 21 Law Reporter, 14 ; Webb v. Winter, 
 1 Cal. 417 ; Ogden v. Coddington, 2 E. D. Smith, 317; Tronson r. Dent, 8 Moore, 
 P. C. 419, 36 Eng. L. &, Eq. 41 ; Coleman v. Lambert, 5 M. & W. 502. See 
 also, Snow v. Carruth, U. S. D. C, Mass., 19 Law Reporter, 198. In a late case 
 decided by the Supreme Court of Massachusetts, Blanchard v. Page, Boston Daily 
 Advertiser, Nov. 25, 1856, the action was brought for damages done to goods carried 
 in the defendant's ship from Boston to New Orleans. The bill of lading was in the 
 usual form, stating that the merchandise was "to be delivered in like good order, dan- 
 gers of the sea excepted, to Gaines & Co., he or they paying freight." Gaines & Co. 
 were agents to receive the goods at New Orleans and transmit the same to various par- 
 ties and places. The goods arrived in a damaged condition, and this action was 
 brought by the shippers to recover damages. Part of the merchandise was purchased 
 of the plaintiffs by a party in Arkansas, who requested them to act as his agents in 
 shipping the goods, procuring insurance, etc. The mercliandise so purchased was 
 paid for by a note which included insurance, and this note was afterwards taken up. 
 The consignors wei-e not owners of the goods, and the court did not consider that 
 the defendants had made any contract with them, but that the promise to deliver was 
 to the consignees. It was held therefore that they could not recover. Subsequently, 
 however, the court were of opinion, that the consignors might maintain an action in 
 their own names for the benefit of the consignees. Blanchard v. Page, June 20, 1857. 
 See also, Cooke v. Wilson, 19 C. B. 153, 37 Eng. L. & Eq. 361.
 
 en. VII.] DAMAGES FOR NON-DELIVERY OF GOODS. 215 
 
 original destination ; and that if the shipper chooses not to 
 accept the goods there, he is not liable to pay any freight.^ We 
 should say, too, that his refusal to accept the goods at such inter- 
 mediate port, was not an abandonment of them to the ship- 
 owner, for the freight ; for no freight has been earned, and there 
 would be no consideration for such transfer. But we should 
 hold the owner and the master still liable to account to the 
 shippers for the goods.^ Undoubtedly this responsibility would 
 be measured and applied on equitable principles. If the ship- 
 per, or his agent, might as well have received them there, 
 and transmitted them or taken them home, or to some other 
 place, although not bound to do this, a refusal to do it might 
 justify the master, at least if other circumstances concurred, in 
 selling the goods at once, and accounting for the proceeds. 
 
 It has, however, been made a question whether, at the port of 
 ultimate destination, if the goods arrive so injured as to have lost 
 their mercantile value, the shipper may not there abandon them 
 to the master, and pay no freight.-^ We consider it however 
 quite settled as the law of this country, that if the goods arrive 
 in specie, the shipper must pay freight for them, whatever be 
 their condition or value.'' If that value has been lost or dimin- 
 
 1 See ante, p. Ifi4. 
 
 2 Sec ante, p. 167. 
 
 '^ See Le Guidon, ch. 7, art. 11 ; Ord. de la Mar., liv. 3, tit, 3 ; Fret. art. 25 and 26 ; 
 Code do Commerce, art. 310 ; MoUoy, de Jure Maritimo, book 2, chap. 2, § 14 ; Pothier, 
 Charte-partie, n. 60 ; Boulay Paty, torn. 2, 488. There is a dictum of Lord Mansjield 
 in Luke v. Lyde, 2 Burr. 882, 887, which tends to sustain the right of the shij)per to 
 abandon his floods for the freight. lie said : " As to the value of the goods, it is noth- 
 ing to the master whether the goods arc spoiled or not, provided the merchant takes 
 them ; it is enough if the master lias carried them : for by doing so, he has earned his 
 freight ; and the merchant shall be obliged to take all that arc saved, or none ; he shall 
 not take some and abandon the rest, and so pick and choose what he likes, taking that 
 which is not damaged, and leaving that which is spoiled or damaged. If he abandons 
 he is excused freight, and he. luai/ ahandun all, though they are not all lost." This doctrine 
 has not been followed in this country. Griswold v. N. Y. Ins. Co. 3 Johns. 321, 328. 
 See also the opinion of Mr. Justice LivimjHton, in the same case on a former trial, 1 
 Johns. 205, 213; Whitney v. N. Y. Firemen Ins. Co. 18 id. 208. 
 
 * " Now nothing is better founded in the law on this subject, than that the shippers arc 
 bound to pay the full freight for the voyage, if the cargo is carried to the port of des- 
 tination, and specitically remains, notwithstanding at its arrival it is, by reason of sea- 
 damage, utterly ruined and worthless." Per Story, J., in Jordan v. Warren Ins. Co. 1 
 Story, 342, 353. See also, M'Gaw v. Ocean Ins. Co. 23 Pick. 405, and cases in note supra. 
 In Lord v. Neptune lus. Co., S. J. C, Mass., Nov. T., 1857, insurance was effected
 
 216 ON THE LAW OF SHIPPING. [BOOK I. 
 
 ished by the fault of the master, or without his fault, but from a 
 cause for which he is responsible, then, as we have repeatedly 
 said, the shipper may claim compensation ; but he m^ust pay 
 freight.^ 
 
 A more difficult question arises where the barrels or boxes in 
 which the goods were, arrive, but there are no goods in them ; 
 as where wine or oil or molasses leaks out, or sugar or salt 
 melts and washes out ; but the barrels or boxes arrive in as good 
 condition as when put on board. Is freight now to be paid ? ^ 
 
 on the freight of the barque Dana, from New York to Havre. On the third day oat, 
 the ship met with a peril and was obliged to put back to New York, where the cargo 
 was discharged, in order to repair the vessel, and sold. It would have taken several 
 months to have prepared the cargo by drying for resliipment, and it was conceded that 
 the master acted for the benefit of all concerned in selling it. The court held that, 
 under these circumstances, the insured could not recover. Shaw, C. J., in delivering 
 the opinion of the court, said : " The question, therefore, is not, whether the flour and 
 grain, and other articles composing the cargo, would have been of any or what value 
 at Havre ; but whether on such reshipment and arrival, thfy iroidd have remained in 
 specie, as flour, wheat, bacon, palm leaf, etc. K so, then it is clear that they were not 
 so totally lost that the plaintifl' was prevented, by the peril insured against, from carry- 
 ing them and earning his freight." Sec also, Ogden v. Gen. Mut. Ins. Co. 2 Duer, 
 204; Hugg I'. Augusta Ins. Co. 7 How. 595. In Steelman v. Taylor, U. S. D. C, 
 Mass., 19 Law Reporter, 36, an action was brought to recover the freight of one hun- 
 dred and nineteen tons of coal. This amount was laden on board at Philadelphia, but 
 only one hundred and ten and a fraction were delivered. The court being of opinion 
 that this diff"erence was owing to causes over which the master had no control, and for 
 which he was not liable, decreed freight for the whole. 
 
 1 See ante, p. 151, n. 2 ; p. 172, n. 3. 
 
 2 The twenty-sixth article of the Ordinance of the Marine, book 3, tit. 3, declares, 
 that, " If goods put into casks, as wine, oil, honey, or other liquors, have leaked out 
 to such an extent that the casks are empty, or nearly empty, the merchant may aban- 
 don them for the freight." This article is repeated in the Code de Com. art. 310, and 
 was taken from Le Guidon, ch. 7, art. 11. Considerable discussion has ensued among 
 the continental writers as to the meaning of this article. Valin and Delvincourt con- 
 tend, that if the casks arrive empty the merchant may abandon, though the loss by leak- 
 age be occasioned by reason of the insufficiency of the casks. On the other hand, 
 Pothier (Charte-partie, 59), Boulay Paty (tom. 2, 488), and Ferrard are of opinion 
 that the mercliant cannot abandon if the loss is attributable to the insuificiency of the 
 casks. Boucher, Inst, du droit Maritime, 289 (Paris, 1803), states the law as follows : 
 " The captain cannot at all prevent an article from perishing or being injured by its 
 inherent defect. He is, therefore, paid his freight in such a case. But he is to be 
 treated as able to prevent loss by leakage, especially if he has declared that he received 
 it in good order by his bill of lading. We ought, tlierefore, to attribute a leakage to 
 bad stowage, which he is bound to guard against, and over which he has not exercised 
 all the vigilance possible. For why does one hogshead leak more than another? It 
 is from one of two causes — either from its worse condition, or from worse stowage.
 
 CH. VII.] DAMAGES FOR NON-DELIVERY^ OF GOODS. 217 
 
 Our answer would be that goods could scarcely perish in this way, 
 except either by a cause for which the ship is answerable, and 
 then the goods should be paid for, deducting freight; or by a 
 peril of the sea, in which case it is clear that no freight is pay- 
 able ; ^ or by intrinsic defect or quality, as by decay, evaporation, 
 or leakage, in which case the freight is due.^ 
 
 In regard to the freight of animals, this distinction seems to 
 be taken. If the money is to be paid for the lading of the ani- 
 mals, then it is due for those which die on the voyage, as well 
 as for those which are delivered alive. But if it is to be paid 
 only for their transportation, then it is not due for those which 
 are not delivered alive.^ But the carriage of passengers or 
 
 He is not at liberty to make the former assertion. The latter may not indeed be 
 treated as actually proven, but, inasmuch as it is a just presumption, he is to be dis- 
 charged from the loss, but obliged to take the cask and the remnant for his freight." 
 
 1 Frith r. Barker, 2 Jolins. 327. 
 
 ^ Nelson v. Stephenson, 5 Duer, 538. In this case six hundred and twenty-four barrels 
 of molasses were shipped on a voyage from New Orleans to New York. On arrival 
 eight baiTcls were found to be empty. The molasses was lost by leakage, fermentation, 
 or inherent waste. The barrels were properly stowed and no negligence was imputable 
 to the master or crew of the vessel. Held, that freight was due. The whole subject was 
 discussed at length with great abilitj-, and the court arrived at the following conclu- 
 sions : That the owner of the goods is bound in the first place to furnish proper casks, 
 and would presumptively be liable for a loss ai-ising from their insufficiency. The 
 effect of an unqualified bill of lading is to transfer this presumptive responsibility to 
 the captain and owners of the vessel. And when the case presents nothing else, if the 
 casks be delivered empty, or nearly so, and the actual cause of the leakage be unknowTi 
 or conjectural, the owners of the vessel lose their freight. As, however, a l)ill of lading-, 
 treated as a receipt, is not conclusive, it is open to the ship-owner and master to prove 
 explicitly that the casks were in fact unsound and badly made, and in such a case the 
 original responsibility of the owner for their condition is restored and he is bound to 
 pay freight. 
 
 ^ See ^[olloy, de Jure Maritimo, book 2, ch. 4, ^ 8. It is also said by this learned 
 •writer, that if no agreement is made cither for lading or transporting, then freight is to 
 be paid for the dead as well as for the living. Tlie same rules are laid down by Roccus, 
 n. 76, 77, 78. The reason which he gives for the last rule is, that it does not appear 
 precisely what was intended, and as no fault is shown on the part of the sailors, the 
 contract remains entire, and the whole freight must be paid, because a doubtful contract 
 must be construed against the shipper. See also, Dig. 14, 2, 10. It is diflScuIt to see 
 on what principle of law this reasoning rests. The question is as to the interpretation 
 of an implied contract. Tiiis must be determined by the intention of the parties ; and 
 the most natural and probable supposition is, that the shipper intended that his animals 
 should be transported and not merely laden on board, and if the master had a different 
 intention it was his duty to have mentioned it. But, even if the intention of the par- 
 ties is doubtful, the maxim i-crha fortius accipiuntttr contra proferentem, would apply, for 
 it has been held that wlicre a carrier gives two notices limiting his responsibility, he is 
 
 VOL. I. 19
 
 218 ON THE LAW OF SHIPPING. [BOOK I. 
 
 V 
 
 of animals hardly comes under the name of freight,^ although 
 the rules of law are the same in most respects. 
 
 Sometimes the ship-owner reserves the right to reship the 
 goods, or send them to their destined port in another vessel ; the 
 bills of lading containing a provision, that the ship-owner " may 
 send them forward in any other good vessel," or some equiva- 
 lent phrase. In such case it seems that the ship-owner must 
 still carry them himself if he can, and is under a responsibility 
 for their safe delivery .^ As such words do not lessen, neither do 
 they enlarge the master's duty, but they are construed as giving 
 him a certain privilege, which he is not bound to exercise.^ 
 
 If a ship does not begin her voyage at all, does not break 
 ground, no freight can be payable.* But after the voyage is be- 
 gun, and an interruption occurs, whatever be the delay it causes, 
 
 bound by that which is least beneficial to himself. Munn v. Baker, 2 Stark. 255. 
 See also, Airey v. Merrill, 2 Curtis, C. C. 8, and cases cited p. 11. And in Wolcott 
 V. Eagle Ins. Co. 4 Pick. 429, 434, there is a dictum to the effect that freight is not 
 due for animals, which die on the passage, unless there is an express agreement to that 
 effect. See, however, Moff"at v. East India Co. 10 East, 468. 
 
 1 Lewis V. Marshall, 7 Man. & G. 729. It was held, in this case, that where a 
 broker engaged with a ship-owner to provide a full cargo for the ship, the rates of 
 freight of which should average forty shillings per ton, and the broker put goods on 
 board, the average freight of which amounted to only thirty -two shillings ; the contract 
 was broken, though the broker shipped passengers on board, whose passage-money, 
 added to the freight of the cargo, averaged more than forty shillings. See also, Wol- 
 cott V. Eagle Ins. Co. 4 Pick. 429 ; Giles v. Brig Cynthia, 1 Pet. Adm. 203, 206 ; 
 Howland v. Brig Lavinia, id. 123, 126; and cases post, p. 227. 
 
 ^ In Dunseth v. Wade, 2 Scam. 285, goods were shipped at Cincinnati to be trans- 
 ported to Peoria under the usual bill of lading, Avhich contained the clause, "with 
 privilege of reshipping on any good boat." Held, that the master was bound to de- 
 liver the goods at Peoria, unless their delivery was prevented by unavoidable accidents 
 of the river. The court said : " What change in the terms of the contract did the 
 words, ' with privilege of reshipping on any good boat,' written in the margin of the 
 bill of lading, produce ? "Was the master discharged from all obligation in relation to 
 the carriage and delivery of the goods at Peoria, by merely reshipping the goods on 
 board ' any good boat V Clearly not. He was to receive freight on the delivery of 
 the goods at Peoria, for transporting the goods the whole distance. His obligations 
 were consequently coextensive with the reward he was to receive." It was so held also, 
 in M'Gregor v. Kilgore, 6 Ohio, 358 ; Whitesides v. Russell, 8 Watts & S. 44. See 
 also, Broadwell v. Butler, 6 McLean, C. C. 296; Wilcox v. Parmelee, 3 Sandf 610; 
 Dalzell V. Steamer Saxon, 10 La. Ann. 280. 
 
 3 Sturgess v. Steamboat Columbus, 23 Mo. 230, where the bill of lading contained 
 this provision, and it was held, that the master was not bound to reship on account of 
 low water. 
 
 * Curling v. Long, 1 B. «& P. 634. See also, ante, p. 128, note 1, and p. 167, note 1.
 
 CH. VIL] ■ LIABILITY FOR FREIGHT. 219 
 
 if it occur from a peril of the seas and without any default of 
 the master, as by capture and recapture, embargo, or any thing 
 of the kind, if the vessel finally arrives, without avoidable delay, 
 with the cargo, at the port of final destination, the whole freight 
 is payable.^ 
 
 SECTION VIII. 
 
 OF THE LIABILITY FOR FREIGHT. 
 
 As the usual bill of lading expresses that the goods are to be 
 delivered to A B, "he paying freight thereon," the receiving of 
 the goods under that bill, whether by the original consignee, or- 
 any assignee or indorsee of the bill, is evidence of an obligation 
 to pay the freight ; ^ and not only the freight, but the demurrage.^ 
 
 1 Davidson i-. Gwynne, 12 East, 381; Beale v. Thompson, 3 B. & P. 405, 420; 
 Moorsom v. Greaves, 2 Camp. 627 ; The Racehorse, 3 Rob. Adm. 101 ; The HofFnung, 
 
 6 Rob. Adm. 231 ; Ilavelock v. Geddes, 10 East, 555 ; Ripley v. Seaife, 5 B. & G. 167 ; 
 Bergstrora i-. Mills, 3 Esp. 36 ; Hadley r. Clarke, 8 T. R. 259 ; Baylies v. Fettyplace, 
 
 7 Mass. 325 ; M'Bride v. Mar. Ins. Co. 5 Johns. 299, 308. See also, cases ante, p. 
 159, note 2. 
 
 2 From the earlier cases it would be inferred that the fact of an acceptance of the 
 goods by the consignee, or his indorsee, under a bill of lading, containing the clause in 
 question, was a legal presumption that the consignee or his indorsee had made a con- 
 tract to pay the freight. Dougal v. Kemble, 3 Bing. 383; Cock v. Taylor, 13 East, 
 399; Seaife v. Tobin, 3 B. & Ad. 523; Jesson v. Solly, 4 Taunt. 52. In Merian v. 
 Funck, 4 Denio, 110, the court said : " It is well settled that when the goods, by the 
 terms of the bill of lading, arc to be delivered to the consignee, or to his order, on pay- 
 ment of freight, the party receiving them, whether a consignee or an indorsee, to 
 whom the bill of lading has been transferred by the consignee, makes himself respon- 
 sible for the payment of freight." See also, Smith r. Flowers, 6 Mart. La. 12 ; Shaw 
 V. Thompson, Olcott, Adm. 144. In Sanders v. Vanzeller, 4 Q. B. 260, it was held, 
 that the reception of the goods by a consignee, or an indoi-sec, under the indorsement, 
 would be evidence for the jury, from which they would be warranted in finding that 
 the consignee or indorsee thereby contracted to pay freight, but that no contract would 
 arise by implication of law. See also, Zwilchenbart v. Henderson, 9 Exch. 722, 25 
 Eng. L. & E(i. 560 ; Mollcr v. Young, 5 Ellis & B. 755, 34 Eng. L. & Eq. 92, revers- 
 ing the same case in the Queen's Bench, 5 Ellis & B. 7, 30 Eng. L. &. Eq. 345 ; Kemp 
 r. Clark, 12 Q. B. 047. 
 
 » Jesson V. Solly, 4 Taunt. 52 ; Harman r. Gandolph, Holt, N. P. 35 ; Harman i-. 
 Clarke, 4 Camp. 159; Harman t-. Mont, id. 161; Stindt v. Roberts, 5 Dowl. & 
 L. 460. In Wegener i-. Smith, 15 C. B. 285, 28 Eng. L. & Eq. 356, it was 
 held, that it was a question for the jury whether an indorsee was liable for demurrage.
 
 220 ' ON THE LAW OF SHIPPING. [BOOK I. 
 
 And if a consignee assigns and indorses over the bill of lading, 
 and the indorsee takes the goods, the original consignee is not 
 bound to pay the freight.^ But the assignee has been held 
 liable in a case where the bill of lading had not the word 
 "assigns" in it.^ The mere receipt of the goods by one actually 
 the owner of them, might lay him under an obligation to pay 
 for bringing them; but not the receipt by one who is not owner, 
 unless he receives them under an authority conditioned to pay 
 the freight. 
 
 And one who is only an agent of the consignee and is known 
 to the master to be no more, does not become personally liable 
 by receiving the goods, and entering them at the custom-house 
 in his own name.^ But if goods are consigned to A, care of B, or 
 to B, for A, " he or they paying freight," etc., B is not personally 
 liable for freight on receiving them.* And if one who is actually 
 indorsee of the bill of lading, obtain the goods, not under the 
 bill of lading, but by some other means, as by an order of the 
 consignee, the consignee himself may be liable, but his indorsee 
 would not be liable for freight; unless a custom on his part to 
 take goods in this way and pay freight for them, suffices to raise 
 the implied assumpsit.^ But if he obtain the goods under the 
 
 who received the goods under a bill of lading which stated the cargo to have been re- 
 ceived " against payment of the agreed freight, and other conditions as per charter- 
 party," and the charter-party contained a provision for demurrage. See also, Smith v. 
 Sieveking, 4 Ellis & B. 945, 30 Eng. L. & Eq. 382 ; s. c. affirmed in the Exchequer 
 Chamber, 5 Ellis & B. 589, 34 Eng. L. & Eq. 97. It was held, in this case, that a bill 
 of lading, by which goods were deliverable to the consignees, " they paying for the 
 said goods as' per charter-party, imposed no liability on the consignees to pay demur- 
 rage, according to the charter-party, for a detention of the ship at the port of loading, 
 which occurred before the bill of lading was signed. 
 
 1 Cock r. Taylor, 13 East, 399; Tobin v. Crawford, 5 M. & W. 235, s. c. affirmed 
 in the Exchequer Cliamber, 9 M. & W. 716 ; Dougal v. Kemblc, 3 Bing. 383 ; Trask 
 V. Duvall, 4 Wash. C. C. 181 ; Merian v. Funck, 4 Denio, 110; s. c. affirmed on ap- 
 peal ; I How. Ct. App. Cas. 656. 
 
 2 Renteria v. Ending, Moody & M. 511. 
 8 Ward V. Felton, 1 East, 507. 
 
 * Amos V. Temperley, 8 M. & "W. 798. See also, Grove v. Brien, 8 How. 429. 
 But a contrary decision was given in Canfield v. Northern Railroad Co. 18 Barb. 586. 
 And see Hindsdell v. Weed, 5 Denio, 172. 
 
 5 Wilson V. Kymer, 1 M. & S. 157. And in Coleman v. Lambert, 5 M. & W. 502, 
 it was held that, although generally a consignee is not liable for freight when there is 
 no bill of lading, yet if tlie plaintiff can show prior dealings with him, and that he 
 paid freight on those occasions, this will be evidence that he contracted to pay freight, 
 and he will be held liable.
 
 en. Vn.] LIABILITY FOR FREIGHT. • 221 
 
 bill of lading, so as to be liable for the freight, he will continue 
 liable although he have delivered over the goods or their pro- 
 ceeds wholly to the consignee before a demand for freight was 
 made upon him.^ 
 
 These remarks upon the effect of the bill of lading and an 
 indorsement of it, and receipt of the goods under it, seem to be 
 true and applicable only where there is no charter-party.^ It 
 would seem, however, to be an obvious and certain conclusion 
 from established principles, that if a master delivers goods to 
 any party, with notice to him that he should look to him person- 
 ally for freight, and the party accepts the goods and receives 
 them with this notice, he becomes thereby liable. The only 
 ground of exception would be, that this party had, by his bargain, 
 an absolute right to receive the goods, without any payment of 
 freight, and the master, consequently, had no right whatever to 
 withhold them for want of payment. 
 
 If a bill of lading expresses that the goods are to be delivered 
 to a consignee, on payment of freight, if the master delivers 
 them without freight being paid, he cannot afterwards fall back 
 on the consignor, if the goods are the property of the consignee. 
 This must be the general rule. But if the consignor alone owns 
 the goods, such a bill of lading would amount to no more than 
 an order of the consignor to his agent to pay the freight for him; 
 and on the failure of the agent to paythe freight, the principal 
 would still be held. 
 
 It seems to be well settled that when there is a charter-party, 
 this is evidence of an express contract on the part of the shipper 
 to pay freight ; and the clause in the bill of lading respecting 
 freight is inserted for the benefit of the master, and not of the 
 consignor. And where there is no charter-party, but only a bill 
 of lading, it seems that this amounts to, and imports an implied 
 contract on the part of the shipper to the same effect.^ 
 
 1 Bell V. Kymer, 5 Taunt. 477, 3 Camp. 545. 
 
 2 See Moorsom v. Kymer, 2 M. & S. 303. 
 
 ' Roberts v. Holt, 2 Sliow. 443 ; Penrose v. Wilks, Abbott on Shipping, 415 ; Tap- 
 Icy r. Martens, 8 T. R. 451; ]\Iarsh v. Redder, 4 Camp. 257; Christy r. Row, 1 
 Taunt. 300 ; Shcpard v. De Rernales, 13 East, 565. In Drew v. Bird, Moody & M. 
 156, Lord Tcntcrdmi said that wlierc tlierc was no eliarter-party, and the goods were by 
 the bill of lading to be delivered to a party other than the shipper, or to the assigns of 
 such other party, he or they paying freight, the shipper was not liable, if the goods 
 
 19 •
 
 222 , ON THE LAW OF SHIPPING. [bOOK I. 
 
 Sometimes the freight-money is paid in advance, in whole or 
 in part, or other advances are made to the owner of the ship. 
 Then, if the goods are not delivered, or the voyage not per- 
 formed, under circumstances which would give the ship-owner 
 no right to claim freight if it had not been paid, the question 
 arises whether he is bound to pay it back. But this question, 
 although not unfrequently attended with some difficulty, is a 
 question of fact rather than of law ; and the difficulty is not so 
 much one of knowing what the true principles are, as in what 
 manner they shall be applied. 
 
 It is now quite certain, that if the payment be merely a pay- 
 ment of freight in advance, it must be repaid if freight is not 
 earned.^ And if the sums paid to the master or ship-owaier are 
 
 were delivered without payment of freight, unless there were some additional circum- 
 stances to show a contract between him and the ship-owner. This case was declared 
 not to be law, by Parke, B., in Sanders v. Vanzeller, 4 Q. B. 260, 288. The true rule, 
 which has been universally followed, is laid down in Domett v. Beckford, 5 B. & Ad. 
 521, where it was held, that the only difference between a case where there was a char- 
 ter-party, and one where there was not, consisted in this alone, that, in the former case, 
 by the charter-party there was an express contract on the part of the shipjicr, and in 
 the latter, an implied one. In Blanchard v. Page, S. J. C, Mass., Boston Daily Ad- 
 vertiser, Nov. 25, 1856, a case in which the consignor was the mere agent for shipping 
 the goods, Shaw, C. J., said : " As to the consignor's liability for freight, the consignee 
 refusing to pay the same, and the pierchandise being worth less than the freight, it is a 
 (iifficult question, and it will be sufficient to decide that when it comes directly before 
 us." The law, however, seems to be well settled. If the consignor is not the owner 
 of the goods, he is not liable, but if he is the owner, the clause, relative to the delivery 
 on payment of freight by the consignee, is inserted for the benefit of the master, and 
 the consignor is liable. Barker v. Havens, 17 Johns. 234; Spencer r. White, 1 Ired. 
 236; Grant r. Wood, 1 Zabris. 292; Hayward r. Middleton, 3 McCord, 121. The 
 game rule applies to a case of demurrage. Han-ison v. Spaeth, 23 Law T. 155, 28 
 Eng. L. & Eq. 132. In Collins v. Union Transp. Co. 10 Watts, 384, it is said that 
 the condition was introduced for the benefit of the consignor. The word tiot was omit- 
 ted before introduced by a mistake of the printer. See Layng v. Stewart, 1 Watts & 
 .S. 222. 
 
 1 In an anonymous case, 2 Show. 283, Satmders, C. J., is reported to have said : 
 "Advance money paid before, if in part of freight, and named so in the charter- 
 party, although the ship be lost before it come to a delivering port, yet wages 
 are due according to the proportion of the freight paid before, for the freighters cannot 
 ' have their money." This doctrine is, however, neither sanctioned by the early mari- 
 time writers, nor by modern adjudications. Sec Cleirac, Us et Coustumcs de la Mer, 
 p. 42.; Ord. de la Marine, du Fret, art. 18; Valin, Com. sur Ord. p. 661 ; Pothier, 
 Charte-Partie, n. 63 ; Roccus, n. 80. Some writers are of tlie opinion that if there is 
 no fault in the master a pro rata freight will be due. Straccha, De Kav. 3, n.*24 ; 
 LDCceniiis, De Jure Maritirao, lib. 3, ch. 6, § 11 ; Roccus, n. 81. In Pitman v.
 
 en. VII.] LIABILITY FOR FREIGHT. 223 
 
 but loaned to the ship-owner, then they must be accounted for 
 as loans ; that is repaid, with deduction of freight that may be- 
 come due, and no deduction, if no freight becomes due.^ But it 
 is. quite as certain that the parties may make a different agree- 
 ment. The shipper may say, if you will take my goods, I will 
 pay you now, so much money, and you may keep it whether 
 you carry the goods to their destined port or not. 
 
 This would, strictly speaking, not be an agreement for freight; 
 but it would be an agreement the parties had a right to make. 
 And it might be proved by, or inferred from, circumstances. As 
 if the ship-owner said, I will take your goods to Havre, and will 
 charge twenty dollars a ton payable there, or fifteen dollars if 
 you will pay it here, it might be competent for a jury to infer 
 that the reason for asking so much less at home, was that the 
 payment was not to be at any risk, but was to remain the ship- 
 owner's at all events, and that the shipper paid the money with 
 tiiat understanding.^ But, if the bargain is money for the car- 
 
 Ilooper, 3 Sumner, 50, 66, Mr. Justice Slori/ said : " In the ordinary cases of freight 
 paid in advance, I do not nndorstand, that if the voyage is not performed the owner 
 can, without an express stipuhition to tlie purpose, retain it, hut the shipper is enti- 
 tled to recover it back." See also, Manfield v. Maitland, 4 B. & Aid. 5S2 ; Watson i-. 
 Duykinck, 3 Johns. 335 ; Griggs v. Austin, 3 Pick. 20 ; Leman v. Gordon, 8 Car. & 
 P. 392, per Lord Ahimjer, C. B. ; Brown v. Harris, 2 Gray, 359 ; Phelps v. William- 
 son, 5 Sandf. 578 ; Cope v. Dodd, 13 Pcnn. State, 33; The Zenohia, Abbott, Adra. 
 80; Giles v. The Brig Cynthia, 1 Pet. Adm. 203, 206 ; Ilowland v. The Brig Lavinia, 
 id. 123, 126 ; Mulloy v. Backer, 5 East, 316 ; Gillan v. Simpkin, 4 Camp. 241 ; The Ship 
 Panama, Olcott, Adm. 343, 361. In Mashitcr v. Buller, 1 Camp. 84, the voyage was 
 from London to Lisbon. By the bills of lading freigiit was payable in London. Lord 
 EllenhoroiKjIi held that there was a substitution merely of London as the place of pay- 
 ment in the ])lace of Lisbon, but that the performance of the voyage was not dispensed 
 with, and that if freight had been paid on shipment, as the voyage had never been 
 completed, it might have been recovered back. In tfie case of The Pacific, 1 Blatchf. 
 C. C. 569, the owner of the slii]) contracted to take the libellant as a cabin passenger 
 from New York to California. Not more than fifty other jiassengers were to be taken, 
 in order that there miglit be room for ventilation and exercise. After the passage- 
 money was paid tiie libellant went on board, and found that seventy-two cabin passen- 
 gers were engaged, and that the vessel was thereby overcrowded, and dangerous to 
 health. He therefore refused to go. Held, that he might recover back his passage- 
 money, and also damages for the broach of the contract. But if the passenger or 
 shipper cause tlic non-performance of the contract, the passage-money or freigiit cannot 
 be recovered back. Detoudies v. Peck, 9 Johns. 210 ; Giles v. The Brig Cyntiiia, 
 1 Pet. Adm. 207, note; Griggs i\ Austin, 3 Pick. 20. 
 
 i-Manfu'ld v. Maitland, 4 B. & Aid. 582, 586, per Dnyhy, J. 
 
 2 In Andrew v. Moorhouse, 5 Taunt. 435, the bill of lading stated tliat the fi-eight
 
 224 ON THE LAW OP SHIPPING. [BOOK I. 
 
 riagc of goods, wherever payable, it will be held to be a contract 
 of affreightment, subject to the whole law of freight, unless a 
 different bargain can be shown by the ship-owner, to authorize 
 him to retain money paid to him when freight is not earned.^ 
 Whether the master or owner has a right to retain money thus 
 paid in advance, is said to be always a question of law ; ^ but 
 it is so, we apprehend, only so far as it is made so by the rule 
 that all questions of construction are for the court. 
 
 The master may not in all cases have the right to take the 
 freight money in advance, so as to preclude his owners from 
 suing the shippers for it in case he runs off with it, but his 
 authority to receive it may be inferred from subsequent pay- 
 ments made to him on that account, with the approbation of the 
 owners.'^ 
 
 If a consignee, or other party, entitled to goods, be compelled 
 to pay more than he is legally bound to pay, in order to get pos- 
 
 Ti^as paid. The voyage was from London to the Cape. The broker who made the 
 contract with the shipper, told him that the rate of freight was 5l. paid in London, 
 or 11. at the Cape, per ton. The court left it for the jury to say what was the 
 intention of the parties, and they having found that the payment was not conditional 
 on arrival, the court refused to set aside the verdict. The agreement in Watson v. 
 Duykinck, 3 Johns. 335, was that the master should suffer the plaintiff to proceed in 
 his vessel as a passenger, and to load on board for transportation goods to the value 
 of six hundred dollars. Kent, C. J., held that this meant that the plaintiff should be 
 received on board as a passenger, that he should load the goods on board, and that the 
 master should make all due and bond Jide efforts to transport them. But that he did 
 not contract to deliver them ; and that therefore the voyage being broken up, he was 
 entitled to retain the freiglit. Li De Silvale v. Kendall, 4 M. & S. 37, the charter- 
 party stipulated that £120 should be paid to the defendant as freight for the out- 
 ward cargo to Maranham, and as much cash as might be necessary for the ship's 
 disbursements, to be advanced by the plaintiffs when required, free from interest or 
 commission, and the residue of the freight should be paid on delivery of the goods at 
 Liverpool. Lord Ellenborough held that the advancing of the freight free from interest, 
 showed that it was not intended as a loan, and tliat the word " residue " imported that 
 a part of the freight was to be advanced, and the remainder only was to abide the 
 usual course of events. See also, Saunders v. Drew, 3 B. & Ad. 445 ; Blakey v. Dixon, 
 2 B. & P. 321 ; Tlie John, 3 W. Rob. 170, 177. In Gillan v. Simpkin, 4 Camp. 241, 
 it was held, that, a custom being proved that in West India voyages the passage-money 
 was retained whether the voyage was broken up or not, the master might retain it at 
 all events. See also, Watson v. Duykinck, 3 Johns. 335. But the custom cannot be 
 proved by particular instances. Cope v. Dodd, 13 Penn. State, 33. 
 
 1 JNIashiter v. Buller, 1 Camp. 84. 
 
 2 Wirgman v. Mactier, 1 Gill & J. 150. 
 
 ' Drummond v. Winslow, 38 Maine, 20S.
 
 CH. VII.] LIABILITY FOK FREIGHT. 225 
 
 session of them, he may recover it back ; unless prevented by 
 the rule that money paid in mistake or ignorance of the law 
 cannot be recovered back.^ 
 
 It is usual to agree what shall be paid for freight, and to ex- 
 press this in the bill of lading; but if it is not agreed, or 
 expressed, the amount may be determined in the common way, 
 by showing what the service is worth ; and usage would have 
 controlling influence upon this question. 
 
 The universal law of illegal contracts, which declares them 
 void, and permits no valid claim to grow out of them, or rest 
 upon them, applies also to the contract of freight. It follows, 
 therefore, that no freight can be earned by an illegal voyage ; 
 and this applies to voyages for smuggling or contraband against 
 the laws of the country to which the ship belongs,^ and to sail- 
 ing under a license from the enemy.^ But the illegality must 
 spring from a violation, intended or actual, not of the laws of a 
 foreign country, but of those of the country to which the vessel 
 belongs, and in which the question is raised. For, generally 
 at least, the tribunals of no country take notice of the 
 revenue laws, or other merely municipal laws of any foreign 
 country.^ 
 
 The owner of a ship with a cargo on board, may sell the 
 ship, and the question will arise, who then is entitled to demand 
 the freight. Generally, if a ship is sold before the voyage be- 
 gins, the right to freight passes to the buyer, who alone can 
 claim it. But if the ship is sold during the voyage, only the 
 seller can claim the freight of the shipper, even if his bargain 
 with the buyer obliges him to pay over the freight to him. 
 
 1 GeraWcs v. Donison, Holt, N. P. 346; Brown v. North, 8 Exdi. 1, IG Eng. L. 
 & Eq. 48G ; Chamberlain v. Heed, 13 Maine, 357. 
 
 2 In Mullcr v. Gernon, 3 Tannt. 394, the court said that freight was the reward 
 which tlic law entitled the plnintift' to recover for bringing goods lawfully into the 
 country upon a legal voyage. Sec also, Blanck v. Solly, 8 Taunt. 89. 
 
 3 See The Julia, 1 Gallis. 594, 8 Cranch, 181 ; The Aurora, 8 Cranch, 203; Tlie 
 Hiram, 8 Cranch, 444; Craig v. United States Ins. Co., Pet. C. C. 410; The 
 Ariadne, 2 Wheat. 143; The Langdon Chcves, 4 Wheat. 103. 
 
 * Gardiner v. Smith, 1 Johns. Civs. 141 ; La Jeune Eugenie, 2 Mason, 409; Rich- 
 ardson I'. Maine F. & M. Ins. Co. 6 Mass. 102; Kohn i;. Sch. Renaisanoe, 5 La. Ann. 
 25. See also, Ilohnan v. Johnson, 1 Cowp. 341 ; Biggs v. Lawrence, 3 T. R. 454; 
 Ludlow V. Van Rensselaer, 1 Jolms. 94; Planche v. Fletcher, 1 Doug. 251 ; Pcllecat 
 V. Angell, 2 Cromp. M. & II. 311.
 
 226 ON THE LAW OP SHIPPING. [BOOK I. 
 
 But if the shipper knows this bargain and has consented to it, 
 he becomes, as it were, a party to it, and then the buyer may 
 claim the freight directly of him.^ And a mortgagee who does 
 not take possession, is not entitled to the freight, unless some 
 special bargain makes him so.^ 
 
 If a ship be lawfully captured, the captor acquires all the rights 
 
 ^ We have seen (ante, p. 138, n. 3) that the indorsee of a bill of lading cannot snc, in 
 his own name, on the bill of lading, for a breach of the contract, and the same princi- 
 ple is applicable in the present case. The respective parties to the contract can alone 
 sue for breach of it. If, therefore, the vessel is sold before the voyage begins, and the 
 contract of affreightment is made by the vendee and shipper, of course the vendee can 
 sue for a breach ; but if the vendor should appear by the bill of lading to be the con- 
 tracting party, it would follow that the action must be brought in his name. Thus in 
 Morrison v. Parsons, 2 Taunt. 407, the plaintiff, the owner of a vessel, contracted 
 with the defendants, by a charter-party, that the vessel should go to Stockholm and 
 there load a cargo for Plymouth. Subsequently, but before she sailed, he assigned 
 the ship to the master, but no mention was made of the charter-party or of the freight. 
 After she sailed the plaintiff made an assignment to one Hamilton of the freight, as 
 security for a debt. Hamilton gave notice to the defendants not to pay freight to any 
 one but himself; they however paid it to the master. The plaintiff brought this 
 action in his own name for the benefit of Hamilton. It was held that by the assign- 
 ment to the master the freight to become due passed, though he could not have 
 brought an action on the charter-party in his own name. See also, Lindsay r. Gibbs, 
 22 Beav. 522. In Pelayo v. Fox, 9 Barr, 489, it was held that where the transfer was 
 made after the arrival of the vessel at her port of destination, but before the delivery 
 of the cargo, the transferree would be entitled to freight, as against the assignees of the 
 former owner, by a subsequent assignment. But a covenant to pay freight in a 
 charter-party does not pass by a bill of sale of the ship. Spildt v. Bowles, 10 East, 
 279. 
 
 2 Chinnery v. Blackburne, 1 H. Bl. 117, n. ; Brnncker v. Molj-neux, 3 Scott, N. K. 
 332, 3 Man. & G. 84. See also, Alexander v. Simms, 5 De G., McN., & G. 57, 27 
 Eng. L. & Eq. 288. In Gardner r. Cazenove, 1 H. & N. 423, 38 Eng. L. & Eq. 330, 
 the plaintiff, the owner of the vessel, sold her, payment to be made by a draft payable 
 twelve months after date. Shortly before it became due, the plaintiff agreed to renew 
 it on condition that the vessel should be transferred to him as security. This was 
 accordingly done, and the plaintiff was registered at the custom-house as sole owner. 
 The vessel was at that time on a voyage, and after the transfer performed a separate 
 Toyage in which the freight in dispute was earned. The bill was never paid, and the 
 plaintiff subsequently took possession. Held that the transfer was in effect a mort- 
 gage, and as the plaintiff had never taken possession, he was not entitled to freight. 
 But he is entitled to tlip freight accruing after he has taken possession. Kerswili v. 
 Bishop, 2 Cromp. & J. 529, 2 Tyrw. 602 ; Dean v. M'Ghie, 12 Moore, 185, 2 Car. & 
 P. 387, 4 Bing. 45 ; Langton v. Horton, 5 Beav. 9, 19, per Ld. LangdaJe, M. R. ; even 
 though he does not take possession till after the vessel arrives in port, provided the 
 goods have not been delivered. Cato r. Irving, 5 De G. & Smale, 210, 10 Eng. L. & 
 Eq. 17. In this case it was also held that the mortgagee was obliged to account for 
 his share of the exjjjenses of the voyage.
 
 CH. VII.] LIABILITY FOR FREIGHT. 227 
 
 of the owner, and among them the right to freight ; but on the 
 same conditions, that is, of completing the voyage, safe delivery, 
 etc.^ If the captor injure the property, he is liable to a counter 
 claim by way of set-off.^ And if the shipper has advanced 
 money to the master to be accounted for in settlement of freight, 
 he may claim allowance for this advance in settlement with 
 the captor.^ 
 
 The contract for the carriage of passengers is, in general, 
 governed by the same rules which regulate the transportation 
 of goods.^ Sometimes the passage-money is the master's 
 perquisite or privilege. If so, and he dies after making a 
 bargain and before the voyage begins, his personal repre- 
 sentatives are entitled to the benefit of the bargain, that 
 is, to the passage-money. But his successor may retain 
 the money which he receives for passage-money on bargains 
 
 1 Tfie law was stated with great accuracy by Sir William Scolt, in the case of The 
 Diana, 5 Rob. Adm. 67, 71. lie said : "There are two rules on this subject equally 
 general. The first is, that if goods arc not carried to their original destination, within 
 the intention of the contracting parties, freight shall not be due ; and on tiiis ground, 
 that the contract not being completed, either in substance or form, the speculation of 
 the party has not been productive. The benefit of the contract is lost, and the party 
 has to provide another vehicle, to cany on the goods to the port of their destination. In 
 some cases, indeed, it may happen that the port to which the goods are brought may- 
 prove more beneficial, and afford a better market. But the court does not enter into 
 the minutiffi of such calculations, which would be attended with great trouble in the 
 inquiry, and much uncertainty in the result. It takes the presumption arising from 
 destination only, and founds upon it the general rule, that, in such a case, the claimant 
 shall receive restitution of his goods without the burden of freight. The other rule, 
 equally general, is, that when the contract is executed, by bringing the cargo to the 
 place of destination, the captor, to whom the vessel is condemned, shall be entitled to 
 the freight which has been earned. He stands in the place of the owner of the ship, 
 and is held entitled to the price of the services which have been performed in the exe- 
 cution of the contract." See also. The Vrow Anna Catharina, 6 Kob. Adm. 269 ; 
 The Fortuna, 4 Rob. Adm. 278; The Fortuna, Edw. Adm. ."56. Wiierc a cargo has 
 been brought to the country, but not to the port of destination, it has been held, that 
 the captors are entitled to freight. The Vrouw Henrietta, 5 Rob. Adm. 75, note; 
 The Racehorse, 3 id. 101. See, however, The Wilelmina Eleonora, id. 234. 
 
 2 The Fortuna, 4 Rob. Adm. 278, 282. 
 
 3 The Constantia llarlcssen, Edw. Adm. 232. 
 
 * The Zenobia, Abbott, Adm. 80; Brown v. Harris, 2 Gray, 359; Griggs v. Austin, 
 3 rick. 20; Ilowland v. The Ship Lavinia, 1 Pet. Adm. 123, 125; Watson v. Duy- 
 kinck, 3 Johns. 335; Mulloy v. Backer, 5 East, 316, 321 ; United States r. The 
 Owners of the Thomas Swan, U. S. I). C, South Carolina, 19 Law Reporter, 201, 
 2C|^.
 
 228 ON THE LAW OF SHIPPING. [BOOK I. 
 
 made by himself.^ And it is said, that if the passenger, in com- 
 pliance with an established usage, pays his passage-money in 
 advance, it is returnable to him if the voyage never begins, but 
 not if it begins and is interrupted and never finished.^ 
 
 1 Siordet v. Brodie, 3 Camp. 253. But if his successor expend money in purchas- 
 ing stores for such passengers, he will be considered the agent of the representatives 
 for that purpose, and they must repay him. Id. 
 
 2 Gillan v. Simpkin, 4 Camp. 241. See ante, p. 222, note 1 ; p. 224, note 1.
 
 CH. VIII.] WHAT CONSTITUTES A CnARTER-PARTY. 229 
 
 CHAPTER VIII. 
 
 OF CHARTER-PARTY. 
 
 SECTION I. 
 WHAT CONSTITUTES A CHARTER-PARTY. 
 
 We have considered the use of the ship by the owner, in car- 
 rying his own goods, or those of others, under bills of lading 
 only. He may, however, prefer to let his ship out to others, for 
 their use. This is commonly done by a charter-parti/; an instru- 
 ment of frequent use and great importance among merchants. 
 We give the usual form of it in ^he Appendix ; ^ but no especial 
 form is necessary, and it is quite common to introduce into it 
 any stipulations or provisions which the peculiar character of the 
 voyage, or the purposes of the parties may require. Indeed, we 
 say of this contract, as of the sale of a ship and the contract of 
 insurance, that while it is undoubtedly the proper and usual 
 way to reduce the contract to writing, and have it evidenced 
 and defined by a written document, yet we do not know of any 
 rule of law in this country making this indispensable.^ But^ after 
 
 1 Vide Appendix. 
 
 - Tiic French Code de Commerce and the Ordinance do la Marine, prescribe that 
 the contract shall bo reduced to writing. Code de Commerce, art. 273 ; L'Ord. de la 
 Marine, liv. 3, tit. 1, art. 1. Valin is of the opinion, however, that it is good by parol. 
 Commcntaire sur L'Ord. liv. 3, tit. 1, art. 1 ; Molloy, de Jure Maritimo, b. 2, c. 4, ^ 3, 
 states that it is generally in writing but may be by parol. See also, Taggard v. Loring, 
 16 Mass. 330 ; Perry v. Osborne, 5 Pick. 422 ; Cutler v. Winsor, 6 Pick. 335 ; Thomp- 
 son I'. Hamilton, 12 Pick. 423 ; Vinal v. Bnrrill, IG Pick. 401, 406 ; Muggridgc v. Eve- 
 leth, 9 Met. 233, 236 ; The Phcbe, Ware, 263. 
 
 VOL. I. 20
 
 230 ON THE LAW OF SHIPPING. [bOOK I. 
 
 the charter-party is signed, any material alteration or addition to 
 it by a party or his agent, will make it null and void, though the 
 alteration was made without any fraudulent design. And it 
 would seem that the rule is the same where the alteration is 
 made by a stranger.^ And when the charter-party is in writing, 
 parol is not admissible to vary its terms.^ 
 
 As a charter-party may be by parol, the rights and liabilities 
 of the parties to it with respect to a third person, are fixed when 
 the contract is complete and are not affected by a subsequent 
 instrument in writing.^ 
 
 ^ In Crookewit v. Fletcher, Exch. 1857, 40 Eng. L. & Eq. 415, which was an action 
 by an owner of a vessel against the charterers for refusing to take the vessel, the defend- 
 ants pleaded that whilst the agreement was in the possession of the plaintiff, it was, 
 without the knowledge or consent of the defendants, altered in material particulars 
 (setting them forth), that the alteration was not made in correction of any mistake or 
 to further the intention of the parties, by reason whereof the agreement became void. 
 It appeared in evidence that after the charter-party was signed, the agent of the plaintiff 
 made the alterations complained of, and stated the fact to the defendants when lie 
 handed the instrument to them ; and on their saying that they did not know whetlier 
 they would accept it with the alterations, he said that he had made the alterations on 
 his own responsibility, .and would strike them out at once. The defendants afterwards 
 refused to accept the instrument. The court said : " We also think that the addition to 
 or alteration of the charter is a fatal objection to the plaintiff's right to maintain the 
 action. It is no doubt apparently a hardship that where what was the original charter- 
 party is perfectly clear and indisputable, and where the alteration or addition was 
 made without any fraudulent intention, and by a person not a party to the contract, a 
 perfectly innocent man should thereby be deprived of a beneficial contract ; but, on 
 the other hand, it must be borne in mind that to permit any tampering with written 
 documents would strike at the root of all property ; and that it is of tlie most essential 
 importance to the public interest that no alteration whatever should be made in written 
 contracts, but that they should continue to be and remain in exactly the same state and 
 condition as when signed and executed, without addition, alteration, erasure, or oblit- 
 eration." Pigot's case, 11 Rep. 26, and Davidson v. Cooper, 11 M. & W. 778, were 
 cited. The replication of the plaintiff stated that the alteration was made by a stran- 
 ger, but the court said that if this had been proved to be true the defendants would 
 have been entitled to a judgment non obstante veredicto. 
 
 - The Eli Whitney, 1 Blatchf. C. C. 360; Pitkin v. Brainerd, 5 Conn. 451. Any 
 stipulation not inserted in the contract will be considered as waived. Renard v. Samp- 
 son, 2 Kern. 561, 2 Duer, 285. But in Almgren v. Dutilh, 1 Seld. 28, where a vessel 
 was let, reserving what was necessary for the accommodation of the otEcers and crew, 
 evidence of a conversation made pending negotiations for a charter-party, in regard to 
 the part necessary, was admitted. 
 
 3 Swanton v. Reed, 35 Maine, 176. The defendant in tliis case verbally chartered 
 his part of the vessel on the first of the month, and on the tenth a charter-party was 
 signed and sealed. The plaintiff furnished supplies on the third, and it was held, that 
 the defendant was not liable.
 
 CII. VIII.] WHAT CONSTITUTES A CHARTER-PARTY. 231 
 
 It has been contended that a charter-party is a conveyance 
 within the meaning of the act of 1850,^ and therefore, unless 
 recorded, is void except as to persons having notice of it. But 
 the courts are inclined to take a different view, and to consider 
 the act as not applying to a charter-party .^ 
 
 Formerly, charter-parties, being a kind of maritime indenture, 
 were sealed ; but we infer from the books that the omission of 
 the seal is general now in England, as well as in this country, 
 where, indeed, it is quite universal. No advantage whatever is 
 obtained by putting a seal to the instrument; and, although we 
 have some doubts whether all the technical rules in regard to 
 specialties would be now applied to a sealed charter-party, it is 
 certain that such instruments have received a narrow and merely 
 technical construction within a few years, and the contract 
 would probably be embarrassed by the use of a seal at present. 
 For particulars of the difference, we refer to our note.^ 
 
 An agreement that the parties will hereafter make a charter- 
 party, is not, in law or in fact, the same thing as a charter-party. 
 But an agreement for a future charter-party which contains all 
 the terms and provisions of the instrument, and which appears 
 to be treated as a charter-party by the parties, will be so regarded 
 by the court; or, what would be the same thing, this agreement, 
 together with the facts, would be evidence of a contract made 
 
 1 Chap. 27, § 1, 9 U. S. Stats, at Large, 440. 
 
 - Rufkman v. Mott, U. S. C. C, N. Y., 16 Law Reporter, 397 ; Hill v. Tlie Golden 
 Gate, 1 Newb. Adm. 308. 
 
 ^ The chief diflerences, which exist between a ciiarter-party under seal, and one not 
 under seal, arc these. If tlic owner of a ship lias no agent in a foreign country, the 
 master, virtute officii, being an agent of tlic owner, can let the shij) by charter-party, 
 within the usual course of her emjiloynient. Hurry v. Hurry, 2 Wash. C. C. 145 ; 
 Ward V. Green, 6 Cow. 17.3. And if he is shown to have been master, he will be 
 deemed to continue to hold that character until some overt act or declaration of the 
 owners displaces him from that situation. The Sch. Tribune, 3 Sumner, 144, 149. 
 But he cannot make a charter-party under seal, because a deed under seal must be 
 made by the party himself, or by anotlier for him in his presence ; or in his absence, by 
 an agent autliorizcd by a deed under seal. Ilorslcy v. Rush, reported in Harrison v. 
 Jackson, 7 T. R. 209; Tickering t-. Holt, G Greenl. 160. Again, in contracts not un- 
 der seal, if the agent intends to bind his jirincipal, it will be sufficient if it appear from 
 the contract that he acts as agent, but in those under seal, if he does not use the 
 name of his principal, he alone will be liable. Andrews v. Estes, 2 Fairf. 267 ; New 
 England Mar. Ins. Co. c. l)e Wolf, 8 Tick. ."JG. As to what is the proper way for an 
 agent to sign in order to hold his principal liable, see 1 Parsons on Contracts, p. 47.
 
 232 ON THE LAW OF SHIPPING. [BOOK I. 
 
 but not written.^ So a promise to accept a bill of exchange is 
 sometimes treated as an acceptance ; ^ and an agreement to 
 lease, as a lease.^ 
 
 SECTION 11. 
 
 OF THE GENERAL PROVISIONS OF A CHARTER-PARTY. 
 
 The charter may be formed in either of two ways. It may 
 provide, that the owner lets and the charterer hires the whole 
 capacity and burden of the vessel, except so much as is neces- 
 sary for the accommodation of the officers and crew, the storage 
 of provisions, sails, anchors, cables, etc.,^ in which case it is in 
 its nature a contract whereby the owner agrees to carry a cargo 
 which the charterer agrees to provide. Or it may provide for an 
 
 1 The Schooner Tribune, 3 Sumner, 144. The instrument in this case was as fol- 
 lows : "I hereby agree, within three days, to be ready at Hampden, with a new suit of 
 sails on the Tribune, to load for T. W. Letson (the libellant), and proceed without de- 
 lay to Lubec, to talie in what may be wanted to constitute her cargo, and proceed to 
 Havana, and back to any port of the United States ; also, that the charter-party shall 
 not commence until she is loaded at Lubec, provided I am not detained over seven days 
 in loading said vessel." Signed by the master. On the same paper, immediately be- 
 low this, was the following memorandum, signed by the libellant: "I agree to allow 
 said vessel on said charter-party, five hundred Spanish dollars per month. The charter 
 to be made at Lubec." Mr. Justice Stori/ held, that though the meaning of this instru- 
 ment was, that the charter-party should be made at Lubec, yet that it might be treated 
 as a charter-party, whicli, though loose and informal, still contained the substantial pro- 
 visions of such an instrument ; and that the making of a moi-e formal instrament under 
 such circumstances might be treated rather as a further assurance than as the inception 
 of a maritime charter-party. See also, Lidgett v. Williams, 4 Hare, 456, 462. 
 
 2 Clarke v. Cock, 4 East, 57, 69 ; Wynne v. Eaikes, 5 East, 514 ; Ex parte Dj-er, 6 
 Ves. 9; Pillans v. Van Mierop, 3 Burr. 1663; Payson v. Coolidge, 2 Gallis. 233, 2 
 Wheat. 66; llussell v. Wiggin, 2 Story, 213; Ulster County Bank v. McFarlan, 3 
 Den. 553. 
 
 3 Warman v. Faithfull, 5 B. & Ad. 1042. 
 
 * In Almgrcn i'. Dutilh, 1 Seld. 28, the charter-party contained such a stipulation, 
 and it was also agreed that should the captain take freight in his cabin, the charterers 
 should furnish it at the current rates. It was held, that the officers and crew were en- 
 titled to be accommodated in the mode suitable to their station, the character of the 
 vessel, and the nature of the voyage being taken into consideration, and that if the 
 captain and crew gave up their usual quarters and occupied more confined ones, they 
 were entitled to freight for the part given up.
 
 en. VIII.] GENERAL PROVISIONS OF A CHARTER-PARTY. 233 
 
 entire surrender of the vessel to the charterer, who then hires her 
 as one hires a house, takes her empty, and provides the officers, 
 crew, provisions, etc. Of these two modes of chartering, the 
 first is much the more frequent in practice. The distinction be- 
 tween them is sometimes important in its bearing upon the 
 question, whether the owner oi; the hirer is in possession of the 
 vessel, in such wise as to have the rights, and incur the liabilities, 
 which grow out of possession. As a general rule, words of 
 demise in the charter-party do not pass the possession, if there 
 are other provisions in the instrument which qualify and restrain 
 them ; ^ the whole contract must be construed together, and due 
 effect given to every clause.^ It therefore becomes a matter of 
 some difficulty to state with precision any general rules on the 
 subject, for the same expression will sometimes require a differ- 
 ent interpretation in different instruments according to the con- 
 text. It seems, however, to be generally the rule, that the party 
 that mans the vessel is to be considered as in possession.' 
 
 ^ It was held in Hutton v. Bragg, 7 Taunt. 14, that if the charter-party contained 
 words of demise, the possession passed to the charterer, notwithstanding other provis- 
 ions in the instrument wliich were inconsistent with this supposition. But this case is 
 clearly not the law. It is overruled in Christie v. Lewis, 2 Brod. & B. 410. See also, 
 Dean V. Hogg, 10 Bing. 345 ; Palmer i-. Gracie, 4 Wash. C. C. 110; Hooe i--. Grovcr- 
 man, 1 Cranch, 214 ; Clarkson v. Edes, 4 Cow. 470. 
 
 2 Marquand v. Banner, 6 Ellis & B. 232, 36 Eng. L. & Eq. 136 ; Belcher v. Capper, 
 4 Man. & G. 502, 541 ; Clarkson v. Edes, 4 Cow. 470. 
 
 ^ Palmer v. Gracie, 4 "Wash. C. C. 110; Marcardier v. Chesapeake Ins. Co. 8 Cranch, 
 39; The Sch. Volunteer, 1 Sumner, 551 ; Mclntyre v. Bowne, 1 Johns. 229 ; Holmes r. 
 Pavenstedt, 5 Sandf. 97 ; Ruggles v. Bucknor, 1 Paine, C. C. 358 ; Tuckcrman v. 
 Brown, 17 Barb. 191. In Certain Logs of Maliogany, 2 Sumner, 589, Mr. Justice 
 Story said, that the clause relative to the owner's appointing the master and crew, 
 victualling and equipping the ship, was strong prima facie evidence that the general 
 owner was to remain in possession, and that he would be entitled to it if it wtis uncer- 
 tain in whom possession was to vest. In Dean v. Hogg, 6 Car. & P. 54, 10 Bing. 345, 
 a person hired a steamboat for the day for a pleasure excursion, the owner hiring the 
 master and crew. It was held that the hirer had not such exclusive possession as 
 would justify him in turning olf a stranger who had come aboard, ])ut that his proper 
 remedy was against the owner for a breach of contract. We do not question the gen- 
 eral principles laid down in this case, that the owner bad the general ])ossession of the 
 vessel, but a contract similar to tliat made is essentially one for the free, exclusive, and 
 undisturbed use and enjoyment of a part of the boat for a certain time and for certain 
 purposes, aiul, for the protection and preservation of this use, a power of excluding 
 trespassers is necessary, and therefore such a right of possession as is I'cquisite to its 
 existence should be implied by law. This right of possession is not necessarily exclu- 
 
 20*
 
 234 ON THE LAW OF SHIPPING. [BOOK I. 
 
 But this may be rebutted by clear evidence to the contrary.^ If 
 one party appoints the captain and the other pays him, he is gen- 
 erally considered as holding the possession of the vessel for the 
 party appointing him.^ But the mere fact of there being a per- 
 son on board, appointed by the owner who was to have the sole 
 charge of the vessel, with power to displace the charterer for the 
 breach of any covenant in the charter-party, would not render the 
 
 sive of the possession of another for a different purpose, and may perfectly well consist 
 with a simultaneous possession in the master and crew for the purpose of navigation or 
 any other similar object. It was not the mere entry of the plaintiff on board the boat 
 wliich made him a trespasser against the defendants, but his entry for a purjiose incon- 
 sistent with their exclusive enjoyment of tlieir part of the boat, and we presume that 
 if he had withdrawn to those parts of the boat to which their privilege did not extend, 
 as to the machine room, or the quarters of the crew, the defendants would then have 
 had no right to expel him from the boat. 
 
 It was held in Parish i\ Crawford, 2 Stra. 1251, Abbott on Ship. 42, that, wliere the 
 charterer was to have the freight of goods, and the owner the freight of passengers, 
 and he appointed the master, and covenanted with the charterer for his good behavior 
 and the condition of the ship, the owner was liable for a breach of a contract of 
 affreightment entered into by the master with a third person. Abbott doubts the cor- 
 rectness of this decision, and cites James i\ Jones, 3 Esp. 27, and Mackenzie v. Rowe, 
 2 Camp. 482. This case, however, appears to us to be correctly decided, and the cases 
 cited by Abbott are not necessarily of authority against it, for the forms of the charter- 
 parties are not set forth in the respective decisions. 
 
 In Campbell v. Perkins, 4 Seld. 430, the defendants owned a line of boats and char- 
 tered one of them to another company for a single trip, they, however, retaining the 
 command of it and navigating it. Held that they were liable for the loss of a passen- 
 ger's baggage. 
 
 1 Per Story, J., in Certain Logs of Mahogany, 2 Sumner, 589 ; Drinkwater v. Brig 
 Spartan, Ware, 149, 160, per Ware, J. And in Lyman ly. Redman, 23 Maine, 289, it 
 was held tliat tiie captain did not become the owner pro hac vice, merely by victualling 
 and manning the vessel, and by receiving a share of the profits, but that he must have 
 the entire control and direction of the vessel, and the owner must surrender all control 
 over it. 
 
 2 In Lander v. Clark, 1 Hall, 355, the owners were to keep the vessel tight, and pay 
 the charges of victualling and manning her, the chartei-er was to appoint the master, 
 and put such goods on board as he thought ])roper, and was to pay port charges, pilot- 
 age, etc., and to deliver up the vessel on his return. Held that the owners had parted 
 •with their possession. In Fenton v. Dublin Steam-Packet Co. 1 Per. & U. 103, 8 A. 
 & E. 835, an action was brought against the owners of a steam-packet for injuries done 
 to the plaintiff's vessel by the negligence of the crew of the steam-packet. The vessel 
 was under a charter-party at the time of tlie alleged wrong, the charterer paying the 
 captain and crew, and all disbursements, harbor dues, pilotage, etc. The owners ap- 
 pointed thf captain, crew, and engineers. The captain obeyed the orders of the char- 
 terer as to where tlie vessel was to go, but not as to the mode of navigation. The 
 court held that the crew were the servants of the owners, and that they were therefore 
 liable.
 
 cii. viil] general provisions of a charter-party. 235 
 
 general owners liable for a breach of a contract of affreightment.^ 
 If the general owners held out any false colors, which might 
 induce a belief that the ship would sail under their control, they 
 would be liable as owners, but the circumstance that one of the 
 owners was on board, and was introduced to the injured party 
 as such, and made inquiries as to the probability of obtaining 
 freight, and that the custom-house documents remained un- 
 changed, is not such a holding out as makes them liable.^ 
 The master may hire the vessel as well as a stranger, and this 
 may be done either for a stipulated sum, or on shares. The 
 owner may contract to pay the master half the profits in lieu of 
 wages, and the master may in such a case be considered as 
 holding the vessel as agent for the owners.-^ But generally there 
 is no distinction between the rights and liabilities of the parties 
 whether the vessel is let to the captain or to a stranger.* And 
 one owner may hire the vessel from the others in the same way 
 
 1 Newberry v. Colvin, in the Exchequer Chamber, 7 Bing. 190, reversing the decis- 
 ion of tiie Queen's Bench, 8 B. <& C. 166. The judgment (»f the Exchequer Chamber 
 was affirmed in the House of Lords, 1 Chxrk & F. 283, 6 Bligh, N. R. 167. In this 
 case the master was the charterer at a certain rate per month. He was to provide all 
 necessaries, and pay and defray all port charges, and pilotage, and remit all freight 
 bills for the homeward cargo to a firm in London to hold as security for the balance of 
 freight due the owners, if any. The owners were to have an agent on board with the 
 powers stated in the text. 
 
 2 Pitkin V. Brainerd, 5 Conn. 451. 
 
 3 The Nathaniel Hooper, 3 Sumner, 542, 575 ; Arthurs. Sch. Cassius, 2 Story, 81. It 
 is, however, to be remarked that these cases were against the ship in rem, and it is 
 well settled that a charterer has the power to bind the vessel, though he cainiot bind 
 the owners. Sec ante, p. 124, note 1. The language of Story, J., however, it would 
 seem, was intended to apply e(pially to the case of an action against the owners in 
 personam. See also, Lyman )'. Redman, 23 Maine, 289, p. 234, note 1, ante. Where the 
 owner of a vessel signed and delivered to the master a writing, directing him where to 
 proceed with the vessel and how to employ her, instructing him to use his i)est exer- 
 tions to obtain freight for the benefit of all concerned ; authorizing him to represent 
 her as a first-rate vessel, copjier fastened throughout, two years old, and in good order; 
 enjoining iiim to use all suitable care to keep her in proper condition ; to be cautious in 
 the selection of the commission merchants lie might em])loy ; to obtain olfers to pur- 
 chase her, and to communicate them to the owners; to remit the earnings to them; 
 and for his services as master, and for victualling, manning, and one half the port 
 charges, he was to receive one half of all freights, primage or earnings of the vessel, 
 the other lialf to belong to the owners, deducting the wages of one scannm ; it was 
 held that tliis instrument was not a ciuirtcr- party, and did not exempt the general own- 
 ers of the vessel from liability for necessary supplies for the voyage, furnished on tlie 
 master's order. Latham v. Lawrence, 13 Conn. 299. 
 
 * Hallet V. Col. Ins. Co. 8 Johns. 272; Reeve v. Davis, 1 A. & E. 312.
 
 236 ox THE LAW OF SHIPPING. [BOOK I. 
 
 and with the same responsibilities.^ The more frequent prac- 
 tice at the present day, when the master hires a ves.-el, is for 
 him to take it on shares, in which case he is considered as hav- 
 ing the entire control and possession of the vessel.^ And there 
 is no difference between a fishing voyage and any other in this 
 respect.^ 
 
 When the earnings of a vessel let on shares are collected, they 
 are equally the money of the owner and master, and the latter 
 becomes a trustee of the owners share. And if a third person, 
 knowing all the facts, is authorized by the master to receive the 
 freight already earned, and promises to pay the owner his share, 
 and afterwards receives the money, he holds it for the use of the 
 owner, and the latter may sue him for it.^ It has been said that 
 if goods are furnished to a vessel, and the defendants are proved 
 to have been owners at the time, the presumption is that the 
 goods were furnished for their benefit, and the burden of proof 
 is on them to show that the vessel was not then in their 
 possession.^ The general principles above laid down, apply 
 also to the case where a vessel is chartered by government, and 
 the rule seems to be that the owners are generally liable, if they 
 pay and maintain the officers and crew, although there be a 
 superior officer on board, appointed by the government, unless 
 the loss occur by reason of an order of such officer.^ 
 
 1 McLellan v. Kecd, 35 Slaine, 172. In this case a stipulated price was to be paid, 
 and the owner was held not to be liable for repairs, supplies, or outfits. 
 
 - Webb V. Peirce, 1 Curtis, C. C. 104 ; Thompson v. Snow, 4 Greenl. 264 ; Thomas 
 V. Osbora, 19 How. 22; Perry r. Osborne, 5 Pick. 422; Cutler v. Winsor, 6 Pick. 
 33."); Winsor v. Cutts, 7 Greenl. 261 ; Houston v. Darling, 16 Maine, 41-3; Williams 
 t'. Williams, 23 Maine, 17 ; Sproat r. Donnell, 26 Maine, 185; Taggard i'. Loring, 16 
 Mass. 336; Thompson v. Hamilton, 12 Pick. 425; Kuckman v. Mott, U. S. C. C, 
 N. Y., 16 Law Reporter, 397. 
 
 3 Mayo r. Snow, 2 Curtis, C. C. 102. 
 
 * Williams i'. Williams, 23 Maine, 17. 
 
 5 Blackstock v. Leidy, 19 Penn. State, 335. 
 
 6 Fletcher v. Braddick, 5 B. & P. 1 82 ; Hodgkinson v. Fernie, 2 C. B. >*. s. 415, 40 Eng. 
 L. & Eq. 306. In Trinity House v. Clark, 4 M. .i S. 288, an action was brought against 
 an owner of a vessel for tolls in respect of certain lights, etc., on the coast. The vessel 
 was chartered to the transport Board. The general owner furnished the master and 
 crew, but it v.as held that he was not liable. The decision proceeded partly on the ground 
 that the construction which enabled the government to enforce a prompt obedience to 
 its terms should be adopted, and that it was more for the benefit of the government to 
 consider it in possession, than to compel it to resort to an action for a breach of the 
 contract if any took place.
 
 CH. Viri.] GENERAL PROVISIONS OF A CHARTER-PARTY. 237 
 
 The charter may be for one or more voyages ; or for any time 
 certain.^ It may also be — like a tenancy at will — without any 
 definite term expressed in the contract; and then the law implies 
 a reasonable term, requiring the parties to regard the contract as 
 remaining in force during the whole of any voyage which is 
 undertaken by the charterer before reasonable notice of the 
 intention to terminate the lease is given him by the owner. 
 But, with this exception, such charter-party is determinable at 
 the pleasure of either party .^ 
 
 The charter-party usually expresses the burden of the ship, 
 and ought always to do so correctly. And if there is an error 
 in this respect, made wilfully and knowingly by the owner, he 
 cannot make it the ground of any claim for the charter money. 
 As if he stated the burden too high, in order to cheat the char- 
 terer into giving him, in a gross sum, more than would have 
 been given for the actual tonnage ; or if he puts it in a charter 
 by the ton too low, and thereby induces the charterer to engage 
 to fill her, which otherwise he would not do; in neither case can 
 he profit by his falsehood. And the fraud in such a case would 
 probably render the contract entirely void.^ But it seems to be 
 settled that, if the owner makes a false representation in ignorance 
 and in good faith, respecting the burden, whether he makes it too 
 high or too low, the charterer is bound by the terms of the bargain.^ 
 
 1 In McGilvery v. Capen, S. J. C, Mass., March T. 1837, 20 Law Reporter, 296, 
 the defendant hired a vessel and agreed to pay freight at a certain rate per ton for 
 each calendar month the vessel niiglit be employed by them, and at the same rate for 
 any part of a month. The payments were to itc made as follows : at the end of every 
 six months the defendant was to pay three months' charter at Boston, " and the balance 
 to the master as it should become due, on discharge of the vessel at the several ports 
 she may discharge at." The vessel was lost in the course of one of the voyages, and 
 the court held that frciglit was due to the time of the loss. 
 
 2 Cutler V. Winsor, 6 Tick. 335. 
 
 ' In Johnson v. Miln, 14 Wend. 195, an action was brought on the charter-partv to 
 recover the price agreed on for the u.se of the vessel. It was held that the defendant 
 could show that false representations as to her capacity, anterior to the contract, had 
 been knowingly and fraudulently made by the plaintiff. It was also admitted in Hun- 
 ter V. Fry, infra, note 4, that if fraud could have been shown, the decision would have 
 been different. In Johnson r. W\]n, the defendant only claimed to retain a sum suffi- 
 cient to compensate him for the damages he had sustained in consequence of the deceit. 
 The question did not therefore arise, whether the contract was rendei-cd entirely void, 
 or not. But, as a general rule, fraud vitiates cveiy contract. 
 
 * Hunter v. Fry, 2 B. & Aid. 421. In this case the vessel was described in the
 
 238 ox THE LAW OF SHIPPING. [bOOK I. 
 
 So, if the charter states the national character of the vessel erro- 
 neously, it is said to be no defence to an action against the char- 
 terer for not lading a cargo on board of her. But if it was in fact 
 unsafe or illegal to send that cargo in that vessel, and there could 
 have been no contract had her true nationality been known, it 
 would seem that the charterer should be discharged.^ 
 
 If a vessel is described in a charter-party as " A 1," this only 
 warrants that she was •• A 1." at the time of making the charter- 
 party, and not that she should continue to be so.- 
 
 It is common to provide for the state of the ship and for her 
 repairs in the bargain ; the usual way being for the owner to 
 stipulate that she is sound, stanch, and altogether sea-worthy; 
 and also that he will keep her in repair, the perils of the seas 
 excepted. If, however, the contract expressed no such stipula- 
 tions, it is probable that the law would make thera.^ Generally, 
 
 charter-party as being of the burden of two hundred and sixtv-one tons or thereabouts. 
 The ship could carry four hundred tons. The shipper put on board two hundred and 
 sixty. The court held thar as the misrepresentation did not appear to be fraudulently 
 made, the shipper was bound to load a full cargo, as much as the ship could safely 
 carry, and not having done so, they decreed that the plaintiff should recover as 
 damages the freight which he would have earned, had a full cargo been shipped. 
 See also. Barker r. Windle, 6 Ellis & B. 675, 36 Eng. L. & Eq. 132, 37 
 Eng. ^1. & Eq. 96. In Ashbumer r. Balchen, 3 Seld. 262, the charter-party 
 described the vessel as of the burden of one hundred tons or thereabouts. The 
 vessel was of one hundred and forry-two tons burden. As no fraud was shown, the 
 contract was held valid. See also, Thomas r. Clarke, 2 Stark. 450. Molloy, in his 
 treatise, " De Jure Maritimo," book 2, ch. iv. § 8, states the law as follows : "If a 
 ship shall be freighted and named to be of such a burden, and being freighted by the 
 tun shall be found less, there shall no more be paid tlian only by the tun for all such 
 goods as were laded aboard. If a ship be freighted for two hundred tuns or therea- 
 bouts, the addition of thereabouts is commonly reduced to be within five tun, more or 
 less, as the moiety of the number ten, whereof the whole number is compounded." 
 
 From two recent decisions in regard to the sale of goods, these principles may be 
 deduced. First, that if the owner, in mentioning the burden of the ship in the char- 
 ter-party, should insert the clause, " say not less than five hundred tuns," this would 
 be a warranty that she should be, at least, of five hundred tuns burden. Lceming v. 
 Snaith, 16 Q. B. 275, 3 Eng. L. & Eq. 365. Second, that it was merely, "say from 
 six hundred to seven hundred," and there was no fraud, the vessel need not be even of 
 sis hundred tuns burden. Gwillim r. Daniell, 2 Cromp. M. & K. 61, 1 Gale, 143, 5 
 Tyr. 644. An action will not lie in rem for a misrepresentation in regard to the ton- 
 nage of the vessel. The Eli Whitney, 1 Blatchf. C. C. 360. 
 
 1 Reusse r. Meyers, 3 Camp. 475. 
 
 - Hurst V. Usb«me, 18 C. B. 144, 36 Eng. L. & Eq. 299. 
 
 3 Putnam r. Wood, 3 Mass. 4S1 ; Ripley v. Scaife, 5 B. & C. 167, per BayJey, J. 
 See also, Kimball v. Tucker, 10 Mass. 192,
 
 en. Viri.] GENEKAL PROVISIONS OF A CH-\RTEE-PARTT. 339 
 
 the charterer is bound to victual and man the vessel in the ab- 
 sence of any agreement to the contrary.^ If the parties choose 
 to make different or further stipulations on this subject, they 
 may do so. But the stipulation of sea-worthiness, whether ex- 
 pressed or implied, is not so far a condition precedent, that no 
 charter mone^Ms due if the ship be not sea-worthy ; for whatever 
 her condition, irthe charterer takes possession of her, and makes 
 use of her, he must pay for that use.- But for any detriment 
 which he sustains by reason of her unseaworthiness, he would 
 have a valid claim for indemnity, to be enforced by way of set- 
 off or otherwise. And if by reason of her unseaworthiness the 
 charterer cannot send her to sea, or send his goods in her, or 
 make the use of her he intended, or if he is prevented from 
 doing so in any way by the fault of the owner, he is then 
 subject to no valid claim for the charter-monev or any part 
 of it.3 
 
 ^ Goodridge v. Lord, 10 Mass. 483, 486, per airiam. It was held in this case that, 
 where the charterers covenanted to victual and man the vessel, and had paid over to 
 the captain appointed br them the money for the wages of the crew, and he allowed 
 the vessel to be libelled for the wages, and the owners, to prevent the sale, paid the 
 amount due, thev could maintain an action against the master for money laid out and 
 expended, although the chanerers were indebted to the master to the amount which he 
 had retained. 
 
 - See post, i 6. 
 
 * The liability of the ship-owner, so far at least as it refers to the commencement of 
 the voyage, bears a considerable resemblance to the implied warranty of sea-wonhiness 
 in a policy of insurance, to which indeed it appears to be entirely assimilated in some 
 cases by the courts. See Putnam r. Wood, 3 >Lis5. 481,485, per Parker, J. In insur- 
 an4| if the vessel is not sea-worthy when she leaves port, the policy never attaches, 
 and this is a perfect defence to an action against the insurer, though the vessel be lost 
 from an entirely independent cause. But this could not be set up by a charterer 
 whose goods were not damaged in any way by such unseaworthiness. In other words, 
 sea-wonhiness is not a condition precedent. See post, ^ 6. As in insurance, the 
 owner is liable for a latent defect. Thus in Backhouse r. Sneed; 1 Murph. 173, the 
 rudder of the ship was internally defective, although outwardly sound, and breaking in 
 a storm, the ship was wrecked, and some com, which was on board, was lost. The 
 ship-owner was held liable. Sec also, Dupont de Nemours r. Vance, 19 How. 162, 
 167. And if the shipper inspect the boat before putting his goods on board, the owner 
 of tiie vessel will not be therefore exempt from liability for a loss occasioned by the 
 unseaworthiness. Lengsfield r. Jones, 1 1 La. Ann. 624. In the recent English case 
 of Christie v. Trott, 22 Law T. 101, 25 Eng. L. & Eq. 262, the plaintiff shipped a 
 cargo of haricot beans on board the defendants' vessel, which was then lying in 
 dock, for carriage and delivery at another pon. Before sailing it came on to blow a 
 gale ; the vessel started a plank, the water entered, and the beans were damaged.
 
 240 ON TUE LAW OF SHIPPING. [l500K I. 
 
 It is usual for the master to sign and give bills of lading in 
 like manner as if there were no charter-party ; but nevertheless 
 
 There was no direct evidence how the strain on the vessel was occasioned, whether by 
 pressure of the adjoining vessels in dock, or by coming into contact with a mooring 
 chain. The only damage done to the vessel was the starting^pb plank which was 
 sound. The repairs cost only five shillings. The jury found ffle vessel to be unsea- 
 worthy. On motion for a now trial, it was held that a vessel which starts a plank in 
 dock is not a sea-worthy vessel, as she ought to be equal to all the strain to which, with 
 other ships, she might be subjected there. See also, Putnam v. Wood, 3 Mass. 481 ; 
 The Bark Gentleman, Olcott, Adm. 110, 1 Blatchf. C. C. 196; Whitall v. Brig Wm. 
 Henry, 4 La. 22.3 ; Harrington v. Lyles, 2 Nott & M'C. 88 ; Pothier, Charte-Partie, 
 30; Ord. de la Mar. liv. 3, tit. 3, Du Fret. art. 12 ; Valin Comm. id. In Sherwood 
 V. Ruggles, 2 Sandf. 55, the court were requested to charge that from the vessel's leak- 
 ing two hours after she sailed, she was presumed to be unseaworthy, unless an ade- 
 quate cause of the leak should be shown. This instruction was given, and the jury 
 were also told that they might find whether such a cause had been shown. It is suffi- 
 cient if the vessel be sea-worthy as respects the particular voyage. Bell v. Reed, 4 
 Binn. 127; M'Clures v. Hammond,! Bay, 99. In Towse r. Henderson, 4 Exch. 
 890, to a declaration, which averred that the ship was ready to load a cargo, of which 
 the defendant had notice, but that the defendants refused to load the cargo, which con- 
 sisted of tea, on board said vessel, tlie defendants pleaded that the sliip-owner had 
 antimony on board as ballast, which would have injured the teas. It was proved that 
 cargoes of tea had arrived uninjured, thougli antimony was on board, though such tea 
 was viewed with suspicion. Held that there was no undertaking on the part of a ship- 
 owner, that his vessel, if really fit, should be free from suspicion of unfitness to receive 
 a cargo on board. If the chartered A-essel is disabled while taking in her cargo, she 
 must be repaired within a reasonable time, for, if not, the charterer will be at liberty to 
 put an end to the contract. Purvis v. Tunno, 1 Brev. 260. In Putnam v. Wood, 
 3 Mass. 481, Parker, J., decided that the owner of a ship carrying goods on freight on 
 a circuitous voyage is bound to put her in repair at every port where slie may be, and 
 must answer to the freighter for any damage arising to his goods for want of such 
 repairs. So held also in a recent case in England. Worms v. Storey, 11 Exch. 427, 
 33 Eng. L. & Eq. 400. The declaration averred that at the commencement of the 
 voyage the vessel was unseawortliy, and also after the voyage commenced the shifwwas 
 greatly damaged, and the owner had notice, but did not repair, though the vessel was 
 in a place where repairs could have been had, and that the vessel proceeded on her 
 voyage, but was unable to meet the perils of the seas, as she would otherwise have 
 done, in consequence of which the goods of the plaintiff", the charterer, were thrown 
 overboard. Plea that at the commencement of the voyage the vessel was tight, 
 stanch, and strong, and every way fitted for the same, and sea-worthy. On demurrer 
 it was held that the plea was insufficient. Parke, B., said : " It is contended that the 
 owner is discharged of all liability as to unseaworthiness if the vessel was sea-worthy 
 at the time of the commencement of the voyage ; but the plaintiff" says no, the defend- 
 ant is bound to repair if lie has the opportunity, or at all events that the vessel is not 
 to sail in an unseaworthy state ; and I think tliat is the correct view of his duty, and 
 that in such a case the captain must either repair or stop." That a charterer in this 
 country will be allowed, in an action brought against him for the stipulated price, to 
 offset any damages, which he may have received through the fault of the ship-owner or 
 his agent, see p. 172, note 3.
 
 en. YIII.] GENERAL PROVISIONS OF A CnARTER-PARTY. 241 
 
 they are little more than evidence of the delivery and receipt and 
 shipping of the merchandise, for the charter-party is the control- 
 ling contract as to all the terms or provisions which it expresses.^ 
 The master could not be required to sign bills promising to carry 
 and deliver the goods for less freight than had been stipulated ; 
 and if he signed such bills, and the goods were shipped by the 
 charterer, they would not give the charterer, or any person ship- 
 ping goods with a knowledge of the charter-party, any defence 
 against the owner's claims under the charter-party.^ 
 
 1 Perkins v. Hill, 2 Woodb. & M. 158; Lamb v. Parkman, U. S. D. C, Mass., 20 
 Law Reporter, 186, per Sprague, J. 
 
 2 Knight V. Cargo of Bark Salem, U. S. D. C, Mass., 20 Law Reporter, G69. In 
 Faith V. East India Co. 4 B. & Aid. 630, freight was to be paid by the charter-party in 
 part on the ship's clearing, and the residue, half in cash, and half in approved bills 
 upon the delivery of the homeward cargo. The captain was appointed by the owner 
 and instructed to sign all bills of lading, " freight payable as per charter-party." The 
 ship was consigned to C. & Co. in Calcutta, by whom she was put u]) as a general ship. 
 Several merchants shipped in her, and C. & Co. took freight bills containing the clause 
 " freight jiayablc sixty days after delivery of the cargo." The captain then signed 
 bills of lading for the goods with the clause " freight payable agreeable to freight 1)111." 
 These bills were made payable to B. & Co. to whom the charterer was indebted for 
 advances on tiie outward cargo. B. & Co. knew of the charter-party. It was held, 
 that the owner of the ship had a lien on these goods to the extent of the homeward 
 freight. In Gracie v. Palmer, 8 Wheat. 605, overruling the same case noni. Palmer v. 
 Gracie, 4 Wash. C. C. 110, the vessel was chartered but the possession and control of 
 it remained in the general owners. The charterer put the vessel up as a general ship 
 with notice of its being chartered. Goods were shipped by Palmer upon the following 
 stipulations, that the charterers should draw bills in his favor, and that the goods should 
 be consigned to his correspondents, to whom they should be delivered freight free, in 
 pledge for the payment of the charterers' bills. By the bills of lading the goods were 
 described as shipped on the account and risk of the charterer, and to be delivered to 
 Messrs. Willings, the corresi)ondcnts of I'almcr, "freight for the said goods having 
 been settled here." It was held, that the owner had a lien on the goods for the whole 
 freight due, on the ground that the goods were laden on lioard as the property of the 
 charterer. The court said : " The ([ucstion is not, how far his contract may exempt 
 the goods of another from freight, but how far he may incumber his own goods with a 
 lien wiiicli shall ride over, or supersede their general liability for freight." The lan- 
 guage of the court would also show, that the shipper, if he knew of the charter-])arty, 
 was bound to inquire what its provisions were. The point was also urged that there 
 could be no lien for freight because as tlie goods were to be carried freiglit free, no 
 freight could be due, Ijut the court said that if the case of Faith v. East India Co. was 
 followed out this objection would probably be of no avail, as that case proceeded on the 
 ground that the ship-owner was not bound to deliver the goods until his freight was 
 paid, and, therefore, it would seem to be immaterial whether it had been iircvionsly 
 paid to tlie charterer or to any otlier person not authorized to receive it on account of 
 the owner. And the court held that the jjoint did not arise, because the bill of hiding 
 did not state that the goods were to be carried free of freiglit, but merely said freight 
 
 VOL. L 21
 
 242 ON THE LAW OF SHIPPING. [bOOK I. 
 
 It may be said in general, that the rules in respect to the car- 
 riage of cargo, — as that freight is payable only for goods car- 
 ried and delivered, that_ the ship has a lien on the cargo for 
 freight earned,- and that freight is due pro rata when the goods 
 are accepted at an intermediate port, are all of them equally ap- 
 plicable to carriage by charter-party as by bill of lading.^ 
 
 Whether the charterer hires only the burden, or the carrying 
 capacity of the ship, or hires the whole ship and takes her into 
 his hands, the amount which he is to pay does not depend alto- 
 gether upon the quantity of goods which he sends. For if he 
 hires the whole burden or the whole ship by any words which 
 express or imply that he is to fill her and pay for all she carries, 
 then if he fails to provide a full cargo, he is liable as if a whole 
 cargo had been provided.^ And it is no answer to such an ac- 
 tion that the government refused a permit to load a full cargo if 
 the charterer agreed to obtain it.^ 
 
 having been settled here. In Gletlstanes v. Allen, 12 C. B. 202, 22 Eng. L. & Eq. 
 382, the charter-party stipulated that the goods should be delivered on payment of 
 freight, "a lump sum of £2,800 in full of all charges." At the end of it was the fol- 
 lowing clause : " The captain to sign bills of lading at any rate of freight, without 
 prejudice to this charter. In the event of a less freight the bills of lading of part of 
 the cargo to be filled up for loss, if any." The charterers shipped goods as their own, 
 for which the captain signed bills of lading at a specified rate of freight. The goods 
 so shipped were consigned for sale to the plaintiffs, the correspondents of the charterers 
 in London, who were under a general engagement to honor bills drawn on them by the 
 charterers upon the faith of consignments to be made to meet them, and who were 
 largely in advance at the time of the shipment in question. The court held, that if the 
 agreement relative to the power of the captain to sign bills of lading, had any mean- 
 ing, it was intended to apply solely to the case of goods belonging to third parties, and 
 that the master had no power to sign bills for the charterers' goods at less rates than 
 stipulated in the charter-party. But see Gilkison i'. Lliddleton, 2 C. B. n. s. 134, 40 
 Eng. L. & Eq. 295. 
 
 1 See ante, p. 149; p. 125, note 1 ; p. 166, note 1 ; Sturges v. Gairdner, 2 Brev. 
 233, in which case it was held, that freight pro rata could not be recovered in an action 
 of covenant on a charter-party, but that assumpsit was the proper remedy. 
 
 2 Beawes, Lex Mcrcatoria, 118; Thomas v. Clarke, 2 Stark. 450; Thompson v. 
 Inglis, 3 Camp. 428; Duffie v. Hayes, 15 Johns. 327; Kleine v. Catara, 2 Gallis. 61, 
 66 ; The Brig Cynthia, 1 Fet. Adra. 203, 207. 
 
 3 Kirk V. Gibbs, Exch. 1857, 40 Eng. L. & Eq. 438. The charter-party in this case 
 did not contain any clause relative to the restraint of princes. In Hills v. Sughrue, 15 
 M. & W. 253, where the ship-owner agreed to load a full cargo of guano, it was held 
 to be no excuse for a breach of the agreement that no guano could be obtained, al- 
 though the charter-party contained a clause that the charterers were to ship bags and 
 other materials requisite for loading the ship, and to supply the stores for the vessel, at 
 cash prices for the voyage, and to deduct the amount from the balance of freight, but in
 
 CH. VIII.] GENERAL PROVISIONS OF A CHARTER-PARTY. 243 
 
 Where a charterer stipulates to ship a full cargo, consisting of 
 heavy and light goods, he is not obliged to load enough of the 
 heavy goods to keep the ship in proper trim, but the ship-owner 
 is bound to provide sufficient ballast.^ If the charterer stipu- 
 lates to furnish a sufficient quantity of goods to fill the vessel, 
 and to load her to a fair and reasonable draft, with enough of a 
 certain kind, or its equivalent, for balfest, the charterer is not 
 bound to provide such goods as the master demands, but if the 
 latter can, with the goods furnished, stow the vessel in such a 
 way as to fill and trim her properly, the obligation of the char- 
 terer is performed.^ But if the charterer stipulates to furnish 
 sufficient funds to fill a certain proportion of the vessel with any 
 or all of certain kinds of merchandise, the master is not bound 
 to apportion the funds among the articles more or less bulky so 
 as to fill the ship with the funds furnished.^ If the shipper has 
 the option to load the vessel entirely with goods at a higher rate, 
 or partly with such goods, and partly with those of a lesser rate ; 
 but the latter, if laden at all, should be laden first ; it has been 
 held, that if he begins to load with the goods at a higher rate he 
 cannot use the others.* If the charter-party requires the hirer to 
 fill the ship, or load her with a full cargo, or to her utmost 
 capacity, or if any such language is used, he will not be obliged 
 to put in, and if he offers, the owner or master will not be 
 obliged to receive more cargo than she can safely carry, although 
 all the space is not filled.^ And the opinion of the master on 
 this point is entitled to great weight, and is controllable only bv 
 decisive evidence of a mistake on his part.^ 
 
 the CTcnt of the vessel's being lost, or any other unforeseen causes preventing the com- 
 pletion of the charter-party, the owner agreed to pay the charterers the amount of 
 their disbursements for such stores. 
 
 1 Moorsom v. Page, 4 Camp. 103. And where the charterer stipulated that one hun- 
 dred tons of rice or sugar should be loaded first, in order to ballast the vessel, it was 
 held, that after loading the one hundred tons, ho was at liberty to complete the cargo 
 with light goods, and if more ballast was needed, the owner was bound to supply it. 
 Irving ;;. Clegg, 1 Bing. N. C. 53. 
 
 '^ Rich V. Parrott, U. S. D. C, Mass., 20 Law Reporter, 135. 
 
 ^ Brown v. Putnam, 2 Met. 275. 
 
 * Benson v. Schneider, 7 Taunt. 272. 
 
 5 Weston V. Minot, 3 Woodb. & M. 436. See also, Wheeler v. Curtis, 11 Wend. 
 653. 
 
 6 Weston V. Foster, 2 Curtis, C. C. 119.
 
 244 ON THE LAW OF SHIPPING. [BOOK I. 
 
 A vessel must be loaded according to the usages of the trade. 
 Where, therefore, a usage was proved to compress bales of cot- 
 ton wool by machinery, it was held that a stipulation to load a 
 full cargo was not complied with by filling the ship with uncom- 
 pressed bales.^ 
 
 In one case where, among other goods mentioned, freight was 
 to be paid at a certain rate per quarter of four hundred and 
 eighty pounds for Indian corn or other grain, it was held that 
 this latter phrase included only such grain as averaged four hun- 
 dred and eighty pounds to the quarter.^ If various articles are 
 specified in the charter-party, which may be taken, at different 
 rates of freight, and the contract also provides that "other legal 
 merchandise " may be taken, but no rate of freight is specified, 
 such goods are not to be taken gratuitously, nor upon a quantum 
 meruit, but an average freight of the articles specified is to be 
 taken.^ 
 
 The charterer has a right, unless there be an express stipulation 
 to the contrary, to carry the goods of other people, for whatever 
 he can get ; for more than he pays, and so make his profit, or 
 for less, and so save in part what he must pay.* But he must 
 pay for all the space and burden which he hires ; and that part 
 of the freight-money which is paid for the space or burden that 
 is .unoccupied, is called dead freight. There is, however, no lien 
 for dead freisht.^ 
 
 1 Benson v. Schneider, 7 Taunt. 272. So where a shipper agreed to load a full and 
 complete cargo of sugar, molasses, and other lawful produce, it was held, by the 
 Court of Exchequer, that evidence was admissible to prove that by the custom of mer- 
 chants at the port of lading, a full and complete cargo of sugar and molasses ia 
 puncheons and hogsheads, was a compliance with the contract, though the same quan- 
 tity of sugar, if packed in tierces, would not constitute a full cargo. Cuthbert v. Gum- 
 ming, 10 Exch. 809, 29 Eng. L. & Eq. 456 ; s. c. affirmed in the Exchequer Chamber, 
 11 Exch. 405, 30 Eng. L. & Eq. 604. 
 
 2 Warren v. Peabody, 8 C. B. 800. 
 
 8 Thomas v. Clarke, 2 Stark. 450 ; Capper v. Forster, 3 Bing. N. C. 938, per Tindal, 
 C. J. ; Cockburn i'. Alexander, 6 C. B. 791 ; Warren v. Peabody, 8 C. B. 800. 
 
 * By the French Ordinance it is provided that the charterer shall not underlet at an 
 advance price. Liv. 3, tit. Fret. art. 27. In Englaftid it has been held that it may be 
 done; and that where the captain signed bills of lading to sub-charterers whereby they 
 promised to pay six shillings a quarter freight, and the owner, by his contract with the 
 original charterer, was only entitled to four shillings and six pence, this was all he 
 could recover in an action against the sub-charterers, on the bills of lading. Michen- 
 son V. Begbie, 6 Bing. 190. 
 
 6 See ante, p. 128, note.
 
 CH. VIII.] GENERAL PROVISIONS OF A CHARTER-PARTY. 245 
 
 The agreement to pay may be so much for the whole ship in 
 a gross sum, or so much for her at such a rate per ton (in which 
 case it has been held that nothing is payable for any thing less 
 than a ton without an express provision),^ or so much by the 
 bale, box, barrel, or parcel; in which latter case it is usual to 
 agree that not less than so many shall be sent.^ If the agree- 
 ment be so much a ton, it should be stated whether by this is 
 meant so much for each ton of legal custom-house measure- 
 ment, or so much for each ton of her actual capacity. These 
 sometimes differ very widely ; and where there is no express 
 provision on this point, and the intention of the parties could 
 not be gathered from any words used by them in connection 
 with the res g-estce, or such facts as entered into and were a part 
 of the negotiation, and were admissible as evidence, we should 
 say that the presumption of law would be in favor of the 
 legal measurement. But commercial usage, well established 
 and clearly proved, would undoubtedly have a controlling influ- 
 ence in the decision of this question. 
 
 If the charterer pays so much by the ton, and a part of his 
 cargo is lost by a peril of the sea, and therefore never carried, 
 for this part he should pay no freight.^ But if he pays a gross 
 sum for the whole vessel, or if the language used implies this 
 distinctly, then it would seem that the payment is no more 
 affected by the quantity actually carried, than the hire of a house 
 would be by the use or non-use made of it. It may be diffi- 
 cult to determine the intention of the parties, or the purport of 
 the contract, in this respect. But while there would seem to be 
 no authority for apportioning the freight in the case last sup- 
 posed above, yet if all the cargo was lost, and none delivered, it 
 would be difficult to maintain any claim for freight-money, un- 
 less the contract was distinctly a hiring of the ship by the char- 
 terer to use or not use as he pleased while he had possession of 
 her, and not a contract by which the owner engaged to carry 
 goods.* 
 
 1 Rea V. Burnis, 2 Lev. 124. 
 
 2 If a ship is chartered by the barrel or bale, frciglit is payable for the quantity only 
 that is actually conveyed. Roccus, not. 73, 75. 
 
 3 Sec ante, p. 149, and Roccus, not. 72, 75. 
 
 * We have seen, ante, p. 149, that, in the case of a general ship, freight is some- 
 
 21*
 
 246 ox THE LAW OF SHIPPING. [bOOK P 
 
 The charterer may take in the goods of others ; but as he is 
 bound to pay for the whole burden, he has the control of the 
 whole, and the master has no right, under any circumstances, to 
 take in the goods of other parties against the charterer's will. 
 But, as the policy of the law-merchant makes the master the 
 agent from necessity of all who are interested in the ship or her 
 cargo, so far as any emergency may create this necessity, and as 
 this policy also favors the full use and employment of a ship as 
 a public good, when a master finds that the charterer has not 
 goods enough to fill the vessel, he not only may, but, as we 
 think, should (in the absence of prohibition), take in the goods 
 of others, and thereby relieve the charterer of so much of his 
 obligation, or rather provide him with the means of discharging 
 it. But high authorities have stated that he should not do this 
 without the consent of the charterer.^ And even if the charterer or 
 his agent should prohibit the master from filling the dead freight, 
 if he had reasonable cause to doubt the charterer's solvency, we 
 apprehend that he would be safe in receiving other goods, after 
 it became certain that the charterer would not fill the ship. 
 Indeed, it would be difficult to see what damage the charterer 
 could sustain, or could recover, if the master filled a space he 
 certainly could not occupy himself, but must pay for, even if he 
 did prohibit this. If, however, the charterer was not insolvent, it 
 might be said that he would be injured by having other goods 
 carried to compete with his own, and that he would prefer pay- 
 
 times due for the goods delivered. But, when a ship is chartered for a specific 
 sura for the voyage, and only a part of the cargo is delivered, the rest being lost by a 
 peril of the sea, it has been held, both in England and in tliis country, that in an action 
 of covenant on the charter-party, there can be no apportionment of freight. Bright v. 
 Cowper, 1 Brownl. 21, cited also by Grose, J., in Cook v. Jennings, 7 T. E. 385; 
 Malyncs, Lex Mercatoria, 100. In Post v. Robertson, 1 Johns. 24, the question came 
 before the Supreme Court of New York, and it was held that, in an action of covenant, 
 freight could not be recovered unless all the goods had been delivered. A majority of 
 the court were also of the opinion that if a portion of the goods had been received, an 
 action of assumpsit would lie, to recover freight pro rata on the implied promise. See 
 also, Sturges v. Gairdner, 2 Brev. 233. The question was raised, and discussed ia 
 Weston V. Minot, 3 Woodb. & M. 436, but not decided. I\Ir. Justice Woodbury sug- 
 gested that, to avoid difficulty, the proviso, that freight should be paid pro rata, though 
 a full cargo should not, by accident, or other unblamable cause, be delivered, should be 
 inserted in the contract of affreightment. See also, as to contracts generally, Roberts 
 V. Havclock, 3 B. & Ad. 406 ; Sinclair v. Bowles, 9 B. & C. 92. 
 
 1 Pothicr, Charte-Partie, n. 20 ; L'Ord. de la Mar. liv. 3, tit. 3, Fret. art. 2.
 
 CH. VIII.] GENERAL PROVISIONS OF A CHARTER-PARTY. 247 
 
 ing his dead freight. There is, in fact, little authority on this 
 subject, and no controlling usage that we are aware of.^ But, 
 however this may be, it is the duty of the master, and the char- 
 terer has the right to require it of him, to obtain another cargo, 
 if the charterer wholly refuses to employ the ship, and the 
 freight thus earned is to be deducted from the sum claimed for 
 the breach of the contract.^ But the burden of proof is on the 
 charterer to show that another cargo could have been obtained.^ 
 And the refusal of the captain to take other goods before the 
 contract was broken by the charterer, will not make the captain 
 responsible for the freight w^hich might thus have been earned, if 
 the contract was subsequently broken.* But the captain, after 
 
 1 See Abbott on Shipping, 249. 
 
 2 Heckscher v. McCrea, 24 Wend. 304 ; Ashburner v. Balchen, 3 Seld. 262. Mr. 
 Justice Cowen, in Shannon v. Comstock, 21 Wend. 457, states the law as follows : " If 
 the party entitled to the benefit of the contract can protect himself from the loss aris- 
 ing from a breach at a reasonable expense, or with reasonable exertions, he fails in his 
 social dutj' if he omit to do so, regardless of the increased amount of damages for which 
 he may intend to hold the other contracting party liable." See also, Wilson v. Hicks, 
 Exch. 1857, 40 Eng. L. & Eq. 511. But if the charterer agrees to furnish a cargo at a 
 certain rate of freight per hundred wciglit, it has been held that the master is not 
 obliged to take the same cargo at a less rate and look to the charterer for the difference. 
 Hyde i\ Willis, 3 Camp. 202. In Crabtree v. Clark, U. S. D. C, Mass., 1 6 Law Reporter, 
 584, an action was brought to recover damages for breach of a charter-party. The 
 libellant agreed to receive a cargo of salt from the respondents and bring it to Boston. 
 The respondents stipulated to furnish the salt at Bonaire, and to pay freight ujion it at 
 the rate of fourteen cents a bushel. The charter-party also contained the following 
 clause : " It is further understood and agreed that the master is to use the vessel's 
 funds in payment for salt, which he is to purchase at the lowest cash price, and on the 
 vessel's arrival at Boston the charterers are to pay the master or his agent the invoice 
 cost of salt, export duty if any, and insurance on amount invested in purchase of salt 
 from Bonaire to Boston and Boston wharfage, all in addition to the freight." The 
 vessel went to Bonaire with funds to buy a cargo, but there was no salt there, and after 
 remaining twenty-four hours, she left and returned to Boston in ballast. Held, that 
 the respondents had broken the contract by failing to furnish the salt; that the libellant 
 was not bound to wait longer than he did, unless there was ground to exj)ect that a 
 cargo might be obtained by further delay ; that if any other cargo could have been ob- 
 tained at Bonaire, to be brought to Boston as freight, the libellant would have been 
 bound to have taken it, that the proceeds might diminish the damages ; but that he was 
 not bound to purchase a cargo on his own risk or to go to Curacoa, or to any other 
 port in pursuit of business, and thus by a deviation, endanger his insurance. This case 
 was affirmed on api)eal. Clarke v. Crabtree, 2 Curtis, C. C 87. But see Bailey v. 
 Damon, 3 Gray, 92. 
 
 8 Dean v. Bitter, 18 Mo. 182. 
 
 * Harries v. Edmonds, 1 Car. & K. 686.
 
 248 ON THE LAW OF SHIPPING. [BOOK I. 
 
 the charterer has refused to load a cargo, should proceed at once 
 to obtain another one, and not wait till the time expires during 
 which the charterer had a right by the charter-party to put on 
 board goods.^ The cargo obtained by the captain after a refusal 
 of the charterer to load, will not be the property of the latter.^ 
 
 It nnay be a question who owns the freight thus earned by the 
 master's act, if it be more than the stipulated freight. We 
 apprehend it ought to be determined by the further question, 
 whether the charterer had, by word or act, renounced the right 
 of filling the ship or not. If certainly not, the presumption of 
 law should be, that the master in filling the ship acted as his 
 
 1 Bright V. Page, cited 3 B. & P. 295, note ; Heckscher v. McCrea, 24 "Wend. 304, 309. 
 But in Avery v. Bowden, 5 Ellis & B. 714, 33 Eng. L. & Eq. 133, affirmed 6 Ellis & 
 B. 953, 38 Eng. L. & Eq. 130, where the charterer told the master he had no cargo 
 and he had better go away, it was held that this was not such a refusal to load as 
 would entitle the ship-owner to sue for breach of the contract. And in Barrick v. 
 Buba, 2 C. B. n. s. 563, the same rule was applied to a case where the agent of the 
 charterer said he had ceded the charter-party with all its rights and obligations to a 
 third party, and the master was requested to look to him for a cargo. In both of these 
 cases the contract was put an end to by war before the lay days had expired. In Mat- 
 thews V. Lowther, 5 Exch. 574, an action was brought by a charterer against the owner 
 of a vessel for breach of the charter-party. By this instrument it was stipulated that 
 the ship should proceed to two ports in Sicily, or usual place of loading, and after de- 
 livery of her outward cargo, load from the factors of the plaintiff there a full cargo, 
 and thence proceed to Bristol, and that the vessel should receive her orders before leav- 
 ing Messina. The declaration, after averments, that the ship arrived at Messina, and 
 a general allegation of performance by the plaintiff, assigned as a breach, that the de- 
 fendant, within a reasonable time after the delivery of her outward cargo, and before 
 the plaintiff could have given orders for the ship to proceed to the said ports, made a 
 contract with a third party for the conveyance of goods from Messina, and therewith 
 and within such reasonable time as aforesaid, and before such reasonable time had 
 elapsed, loaded his ship, and afterwards proceeded to London without taking on hoard 
 the cargo agreed to be taken from the plaintiff, and thereby deprived him of the power 
 of fulfilling the charter-party, although within such reasonable time he had provided 
 merchandise, and was ready to load it, and although he was ready and willing to have 
 given orders to proceed to two ports, and to have there loaded a full cargo. On de- 
 murrer the declaration was held bad, as it did not show that the vessel had sailed before 
 the lapse of a reasonable time for the performance by the plaintiffs of their part of the 
 contract, and so did not show that the defendant had incapacitated himself from per- 
 forming his part of the contract ; and that it ought to have contained an averment that 
 the plaintiff had performed his part by giving orders, etc., and by tendering a cargo 
 within such reasonable time. Alderson, B., said : " The defendant did not, by loading 
 his vessel with a third party's goods, incapacitate himself from performing the original 
 charter-part)', for he might have unloaded the vessel, and have been ready within a rea- 
 sonable time to perform his engagement with the plaintiffs." 
 
 2 Lidgett V. Williams, 4 Hare, 456.
 
 CH. VIII.] GENERAL PROVISIONS OF A CHARTER-PARir. 249 
 
 agent, and that the profit thence arising should be his. If, how- 
 ever, he had as it were abandoned the empty space to the 
 owner, then it might be held that the master acted as the 
 owners agent, and filled it on his account, releasing the charterer 
 from his obligation to pay, and giving the freight earned to the 
 owncr.^ And if there is a special agreement made that in case 
 of failure to load the return cargo, the freighters will pay a gross 
 sum less than the amount of freight per ton ; the master, on the 
 failure to load, will be entitled to the gross sum and also to the 
 freight which the ship may earn by taking on board another 
 cargo.2 If the ship-owner takes goods on board with the con- 
 sent of the charterer in that part of the vessel reserved for the 
 use of the officers and crew, he can maintain an action against 
 a shipper, for the freight thereof.'^ And it seems that he may 
 
 1 KIcine v. Catara, 2 Gallis. 61. In this case a part of a ship only was chartered by 
 the piuiiitiff for a voyage from Havana to the United States. Freight was to be paid 
 at the rate of one dollar per quintal of one hundred and twelve pounds net weight on 
 delivery of the cargo in the United States. The owner of the vessel was to send out 
 wine on the outward voyage, on which the plaintiff agreed to advance two thirds of its 
 ■ value, if it could not be sold on its arrival at Havana. The plaintiff MTote to his sup- 
 posed agent in Cuba to attend to all the stipulations in the charter-party. This he re- 
 fused to do, but loaded a cargo on the account of, and consigned to strangers to the 
 charter-party. With this cargo the ship sailed, was captured, and released, and finally 
 arrived in Boston. The freight of this cargo amounted to about $5,000 more than 
 that sti|)ulatcd for in the charter-party. The plaintiff thereupon brought this action to 
 recover the excess. The court held that the contract was put an end to by the failure 
 of the plaintiff to perform his part of the agreement, and that what the captain did, 
 was as the agent of the owner, and for his benefit, more especially as the charterer was 
 not owner for the voyage. 
 
 * Bell V. Puller, 2 Taunt. 28.'). See also, Puller v. Staniforth, 11 East, 2.32; Puller 
 V. Halliday, 12 East, 494. In Brown v. Putnam, 2 Met. 275, the defendants agreed 
 with the plaintiffs, the owners of a vessel, to furnish funds to fill eleven twelfths on a 
 joint adventure. The funds not being sufficient, the master obtained goods to fill the 
 deficiency from the consignee, and the defendants received the freight. Held, that the 
 plaintifis were entitled to it, but as the amount was greater than would have been 
 earned at the current rate, and was allowed by the consignee at such rate, instead of a 
 return commission, which he would have allowed, and which, by agreement, would 
 have belonged to the defendants, they were entitled to deduct it from the freight. 
 
 8 In Ncill V. Kidley, 9 Exch. 677, 28 Eng. L. & Eq. 43G, by the charter-party it was 
 agreed tliat (the cabin and state-rooms, and sufficient room for cables, ship's stores, etc., 
 throughout the charter-party being excepted) the vessel should take on i)oard from the 
 charterers (who were to have the full reach of the vessel's hold from l)ulkliead to bulk- 
 head, including the half deck) a full and complete cargo, etc. That such goods only 
 as the charterers might direct should be received on board the said vessel ; and that no 
 goods were to be received in the cabin, or any part of the vessel, withoiit the consent 
 of the charterers. Held, that under this charter-party the deck remained in the posses-
 
 250 ON THE LAW OF SHIPPING. [bOOK I. 
 
 take on board any goods, unless forbidden by the charter-party, 
 which will not enter into competition with the goods of the 
 charterer.^ 
 
 SECTION ni. 
 
 OF THE LIEN OF A CHARTERED SHIP ON HER CARGO FOR THE 
 
 FREIGHT. 
 
 The ship has a lien on the goods she carries for their freight ; 
 such, we have repeatedly said, is the general rule ; and it is also 
 a favored rule, the policy of the law-merchant binding the ship 
 to the goods, and the goods to the ship, for their mutual benefit, 
 and for the general advantage of commerce.^ Nevertheless it 
 has been made a question, whether, if an owner let his ship to 
 hire by charter-party, he did not thereby give up his possession 
 so far, that he could have no lien on the cargo for his freight. 
 Much confusion has arisen in the English courts, which have 
 extended in some measure, at least, to our ovvn.^ 
 
 This confusion and difficulty have arisen from the case of 
 Hutton V. Bragg,* which was wrongly decided, and from the ap- 
 plication of the common law rule that possession is necessary to 
 lien. Abbott (Lord Tenterden), even, in his work on shipping,^ 
 says, "where there is no possession, actual or constructive, 
 there can be no lien." But this rule is applicable in admiralty, 
 and as we think in commercial law, only so far as it rests on 
 reasonable grounds. We have already had occasion to speak 
 of it in considering the question whether there is a lien for 
 freight when a bill of lading provides that the freight is to be 
 
 sion of the owners, and they could maintain an action for freight against a person who 
 shipped cattle on board thereof, with the consent of the charterers, the shipper making 
 a verbal promise to the master to pay the general owners. 
 
 1 Thus, in Towse v. Henderson, 4 Exch. 890, it was held, that he might take mer- 
 chandise for freight in tiie place of ballast, provided it did not occupy more space than 
 ordinary ballast. 
 
 2 See ante, p. 124, note 1 ; p. 125, note 1 ; p. 145, note 1. 
 
 * See ante, p. 233. 
 
 * 7 Taunt. 14. See also, p. 233, n. 1. 
 6 Page 288.
 
 CH. VIII.] LIEN OF SHIP ON CARGO FOR FREIGHT. 251 
 
 paid after delivery.^ We consider that in this country this 
 question in relation to charter-parties is, for all practical purposes, 
 settled, and settled in conformity with reason and justice. 
 
 The rule we take to be this. If the charterer takes possession 
 of the ship, puts on board a master and crew and pays them 
 and provisions the vessel, he does not bargain for the carriage of 
 his goods, but hires the ship and takes her to himself, and be- 
 comes the quasi owner of her, as long as he thus holds her.^ 
 The general owner now carries no goods for any one ; and it is 
 nothing to him whether his ship carries goods or not ; and if she 
 carries them it is not as his ship, and he has no lien on the 
 goods for his freight,^ and, as we have seen,* incurs no liability 
 if they are lost, and this although the charterer is an infant, be- 
 cause the contract between the owner and charterer is in such a 
 case voidable only and not void.^ Nor are the owners of a 
 chartered vessel liable for wharfage.^ 
 
 If a charterer chooses to carry goods for others, he, as 
 owner for the time, has a lien on these goods for the freights 
 payable to him.'^ But if the original owner is in possession, his 
 bargain is to carry the goods of the charterer for the money to 
 be paid him ; he has, by his servant the master, perpetual pos- 
 session of the ship, and so of the cargo laden on board of her; 
 and he may retain this possession by his lien on the cargo for 
 his freight, and payment to the charterer by a shipper who puts 
 goods on board will be no defence to an action by the owner.^ 
 But payment to the owner will, in such a case, be a good defence 
 to an action against that shipper by the charterer.^ 
 
 1 See ante, p. 125, n. 1. 
 
 2 Vallcjo V. Wheeler, 1 Cowp. 143; Marcardier v. Chesapeake Ins. Co. 8 Cranch, 
 39 ; Lander v. Clark, 1 Hall, 355 ; Pickman v. Woods, G Tick. 248 ; Clarkson v. Edes, 
 4 Cow. 470; Drinkwater v. Brig Spartan, Ware, 149; The Thebe, Ware, 2C3, 2G5; 
 Belcher v. Capper, 4 Man. & G. 502. 
 
 3 Drinkwater v. Brig Spartan, Ware, 149; Marquand v. Banner, 6 Ellis & B. 232, 
 36 Eng. L. & Eq. 136. 
 
 * Ante, page 112, note. 
 
 ^ Thompson v. Hamilton, 12 Pick. 425. 
 
 6 Philadelphia v. Naglee, 1 Ashm. 37. 
 
 7 Lander v. Clark, 1 Hall, 355. 
 
 8 Clarkson r. Edes, 4 Cow. 470; Ruggles v. Bucknor, 1 Paine, C. C. 358. See 
 also cases, ante, p. 241, note 2. 
 
 9 Holmes v. Pavenstcdt, 5 Sandf. 97.
 
 252 ON THE LAW OF SHIPPING. [BOOK I. 
 
 If, however, the charterer is in possession of the ship, then pay- 
 ment of freight by the shipper to the charterer would discharge 
 the lien of the owner, certainly if it were paid without notice of 
 the claim and lien of the owner ; and we incline to think it would 
 have this effect even with notice, because the owner has au- 
 thorized by such a charter-party other persons to contract in this 
 way with the charterer.^ And it is quite clear and well settled, 
 that the owner's lien extends only to the amount actually due 
 from the shipper to the charterer by their contract, although this 
 be less than the amount due from the charterer to the owner.^ 
 
 1 If the charterer is in possession, and freight is paid to the master, who delivers it 
 to the owner, the master will be liable in an action, brought against him by the char- 
 terer, for money had and received. Lander v. Clark, 1 Hall, 355. See also, Shaw v. 
 Thompson, Olcott, Adm. 144. The facts of this case were somewhat peculiar. 
 The action was in personam against the respondents to recover three hundred and 
 fifty dollars, claimed to be due for freight on goods consigned to them. The vessel 
 was chartered to one Stearns, the owner retaining the command, on a voyage from 
 New York to Cuba and back. On the return voyage, goods were shipped consigned 
 to the respondents, for which the freight alleged to be due was payable. The bill of 
 lading contained the clause that freight was paj^able to the consignees. On arrival, 
 notice was given to the respondents that freight was to be paid to the master or owner. 
 The charterer was indebted on the charter-party more than the amount of freight pay- 
 able on that shipment. The respondents were willing to pay over $258.10 to whomso- 
 ever it belonged, but claimed a right to retain $91.90, which they alleged was due to 
 them from the charterer. The sum of $258.10 was subsequently, but before this 
 action was brought, paid over to the charterer by the consent of the libellant. Held, 
 that as to this, the owner of the vessel had no claim against the respondents, but that 
 he could recover the $91.90. 
 
 2 We have seen, ante, p. 241, n. 2, that where a vessel is chartered and the master ap- 
 pointed by the owner, the master cannot sign bills of lading for a less amount than the 
 freight stipulated for in the charter-party, in behalf of the charterer, or one having 
 knowledge of the charter-party. But where the shipper acts in good fiiith, and has no 
 knowledge of the charter, we apprehend it is well settled that the general owner has no 
 lien except for the amount stated in the bill of lading. Paul v. Birch, 2 Atk. 621 ; 
 Faith V. East India Co. 4 B. & Aid. 6.30 ; The Sell. Volunteer, 1 Sumner, 551, 573, 
 per Si&ri/, J. In Christie v. Lewis, 2 Brod. & B. 410, the general owner claimed only 
 the freight due on the bills of lading, and the only question was whether the ship was 
 so let to the hirer that he had no lien. In Mitchell v. Scaife, 4 Camp. 298, it was held 
 that a borjd fide indorsee of a bill of a lading, who took it without knowledge of the 
 charter-party, was obliged to pay only the freight due as per bill of lading. So in 
 Howard v. Tucker, 1 B. & Ad. 712, the same principle was applied in the case of an 
 indorsee of a bill of a lading which stated that the freight had been paid. See also, 
 Gilkison v. Middleton, 2 C. B. n. s. 134, 40 Eng. L. & Eq. 295; Glcdstanes v. Allen, 
 12 C. B. 202, 22 Eng. L. & Eq. 382, ante, p. 242, note. In Small v. Moates, 9 Bing. 
 574, it was held that where the charter-party expressly reserved a lien on all 
 goods laden on board, and goods were once shipped on board by the charterer,
 
 CH. VIII.] LIEN OF SHIP ON CARGO FOR FREIGHT. 253 
 
 And if a vessel is let on shares to the master, the owners cannot 
 maintain an action for the freight ;i and they are not, on the 
 weight of authority, liable for the wages of the crew.^ 
 
 We have seen that the charter-party usually provides expressly, 
 that the owner binds the ship and freight to the performance of 
 his part of the bargain, and the shipper binds the cargo to the 
 ship for his performance. But, without these expressions, the 
 law-merchant creates, or implies, this mutual obligation, in every 
 case of a contract of aflVeightment, whether by bill of lading or 
 charter-party.'^ If, however, the parties choose to stipulate other- 
 
 tlic lien of the owner attached for all the freigiit due under the charter-party, and that 
 this lien would not be devested even by a sale of the goods to a third party without 
 notice of the stipulations in the charter-party, and that if the master gave bills of 
 lading to the vendee, and they were indorsed hy him for a valuable consideration, the 
 indorsee could not obtain possession of the goods at the end of the voyage by a tender 
 of a reasonable freight for their carriage. The court, however, admitted the general 
 principle that an owner has a lien on goods shipped by a third party only for the freight 
 due on them. 
 
 1 Manter v. Holmes, 10 Met. 402. But in Sims v. Howard, 40 Maine, 276, where 
 the master sailed the vessel on shares, paying ono half the pilotage and all extra 
 expenses, the captain paying the crew and victualling the vessel, the court held that the 
 master did not have such absolute control of the vessel as precluded the owners from 
 suing for freight. 
 
 2 In Skoltield v. Potter, Daveis, 392, which was an action against the owners by 
 seamen for their wages, the defence was that the vessel was let on shares to the cap- 
 tain. Ware, J., expressed his dissatisfaction with the modern cases so far as they hold 
 the owners discharged where the parties furnishing supplies had no notice of the agree- 
 ment at the time, and refused to extend the doctrine to the case at bar. The language 
 of the learned judge in this case Avould go to the extent of holding the owners liable 
 in all cases for the wages of seamen, but the case was decided partly on other grounds. 
 The rule as laid down in the text is supported by McCabe i'. Doe, 2 E. D. Smith, 64, 
 in which case the master was a part-owner but hired by the charterers, and by Giles v. 
 Vigoreux, 35 Maine, 300, where tlie court said : " In the case of Skolfield v. Potter, 
 there was a special promise made by the owners to the plaintiff to pay the order 
 drawn on them in his favor by the master when" it was presented, and the freight 
 earned on the cargo brought home was collected by one of the owners and retained in 
 his hands. These facts might warrant the decision in favor of the plaintiflF, although 
 the vessel was let to the master on shares." See also, Aspinwall v. Bartlet, 8 !Mass. 
 483. And Mr. Justice Curtis, in Webb v. Peirce, 1 Curtis, C. C. 104, speaking of 
 Skolfield v. Potter, said : " There arc elements in that case upon which tlie decision 
 may rest consistently with the principles ui)on which this case has been decided ; and I 
 do not intend to express any opinion as to a claim for wages on a general owner who 
 has received freight earned in the voyage for which wages are claimed." 
 
 3 See ante, p. 124, 125. The Brig Casco, Daveis, 184. It is, howevci-, always safer 
 for the owner to make a special contract that he shall have a lien for the freight wliatevct 
 be the provisions of the chartcr-partv. Sec Small v. Sloates, 9 Bing. 574. "Whether 
 
 VOL. I. 22
 
 254 ON THE LAW OF SHIPPING. [BOOK I. 
 
 wise ; as, that there shall be no lien ; or, that the lien shall be 
 other than it usually is, they may do so. 
 
 We have already given some consideration to the question, 
 whether a master, who delivers the goods without insisting upon 
 and obtaining the payment of freight, to which he is entitled, 
 from the consignee, can fall back on the shipper. The cases, 
 as we have seen, are in some conflict ; but, on the reason 
 of the question, and perhaps on the weight of authority, 
 we should come to this conclusion : That the master should 
 collect his freight from the consignee if possible, and should 
 insist upon his lien if necessary for that purpose ; but that 
 this obligation is not so peremptory that he loses all right 
 to his freight if he fails injt; because the clause, requiring 
 the consignee to pay on delivery, which asserts the lien of 
 
 the general clause, which is usually inserted in the chai-ter-party, amounts to such a 
 special contract, has been disputed. The better opinion seems to be, that it does. Lord 
 Tenterden, in his Treatise on the Law of Shipping, p. 286, speaking of this clause, said : 
 " The clause whereby the merchant binds the cargo, docs not give to the owner a lien on 
 the cargo by way of general security for the performance of the covenants in the char- 
 ter-party, nor for any payment for which he might not detain it in the absence of such 
 a clause, so that with us the clause is inoperative. In the cases where a lien is allowed 
 it is not derived from this clause, but either from some general principle of law, or 
 some special contract." In The Schooner Volunteer and Cargo, 1 Sumner, 551, 572, the 
 c^uestion as to what effect was to be given to the clause, came up before Mr. Justice 
 Slorij. And that learned judge, after referring to Lord Tcnterdeu's remarks above cited, 
 expressed a very strong opinion in favor of considering the above clause as constituting 
 a special contract giving or reserving the lien. There is also a strong dictum of 
 Parker, C. J., to the same point, in Piekman v. Woods, 6 Pick. 248, 252. " And it is 
 also most usital to stipulate that the goods are bound for the freight, or that freight 
 shall be paid or secured on delivery ; and in all such cases the lien is considered perfect, 
 notwithstanding there are covenants in the charter-party for the payment of freight." 
 The charter-party, in the case of Howard v. Macondray, S.J. C, Mass., Nov. T. 1856, 
 contained this clause. In delivering the opinion of the court, Dewey, J., spoke of it as 
 follows : " Although it may have no efficacy in securing a lien on the merchandise at the 
 port of delivery, where, by the terms of the contract, the freight is to be paid elsewhere, 
 and .at a time different from the delivery of the cargo, yet it may have its full effect in 
 reference to freight to be paid at the place of delivery of the goods, and may operate 
 and have full effect under the new stipulations entered into by these p.arties, as to the 
 time and place of making the second payment for freight. It furnishes evidence at 
 least, that the parties to the charter-party intended to secure the usual maritime lien, 
 which exists where not displaced by the existence of inconsistent stipulations, and 
 should lead us very carefully to consider whether the usual maritime lien for freight did 
 not exist upon this cargo at the port of delivery. It is to be borne in mind that such 
 lien will exist unless clearly displaced by the temis of the contract between the parties 
 as to the payment of freight."
 
 CII. VIII.] LIEN OF SHIP ON CARGO FOR FREIGHT. 255 
 
 the master, is intended primarily for his protection and benefit, 
 but not altogether so; and if he gives up the goods in good 
 faith, and afterwards is unable to collect the freight of the con- 
 signee, he cannot call on the consignor if the goods belonged 
 only to the consignee, and the consignor was but his agent or 
 factor in the transaction, but may call on the consignor if the 
 goods were his property.^ 
 
 We should apply this rule equally to the case of a charter- 
 party, and of freight under bill of lading only. For if the con- 
 signor own the goods, he is not harmed by being obliged to pay 
 the freight, because he would have been obliged to repay it to 
 the consignee had the master obtained it from the consignee. 
 And this reason may perhaps suggest the only exception ; and 
 that is, where the consignor, in good faith and without notice 
 from the master or owner, has, by reason of the laches of the 
 master, paid the consignee for the freight, or so changed the 
 state of his accounts with him, that he would lose the freight 
 if obliged to pay it to the master.^ 
 
 1 See ante, p. 221, note 3. 
 
 - In Taplej v. Martens, 8 T. B. 451, the consignor requested the consignee to pay 
 the freight as he was indebted to him in more than the amount. The consignee, in- 
 stead of doing this, drew a bill of exchange on the consignor for tlie freight, and 
 delivered it to the captain. The consignor was held liable for the fi"eight. So jn Col- 
 lins V. The Union Transp. Co. 10 "Watts, 384, the plaintiffs in eiTor purchased goods 
 in Philadelphia. They were carried by the line of the defendants in error to Pitts- 
 burgh, consigned to H. & L., merchants there, to be forwarded by them to the plain- 
 tiffs. The bills of lading given by the defendants stated that freight was to be paid on 
 delivery to H. & L. They were delivered, however, without payment. II. & L. never 
 paid the freight, but drew upon tlic plaintiffs for the amount, and the draft was paid at 
 maturity. The plaintiffs were nevertheless held liable. The cases above cited show 
 tliat tlie mere fact of the consignor having advanced the money to the consignee to en- 
 able him to pay the freight, or a subsequent settlement with him, will not relieve the 
 consignor, if he would be otherwise lial)le, from his responsibility to the party, who has 
 contracted to carry his goods. But if the master, or the owner of the vessel, neglected 
 to sue the consignor, and in consequence of such delay, the consignor, sujiposing the 
 consignee had paid the freight, should settle with hini on that basis, we should strongly 
 incline to the view that the consignor would not be liable.
 
 256 ON THE LAW OF SHIPPING. [BOOK I. 
 
 SECTION IV. 
 
 OF THE PAYMENT BY A CHARTERER. 
 
 If the master receives the freight, not in cash, but in a bill or 
 note which turns out to be valueless, he cannot then, perhaps, 
 call on the consignor or consignee, in those States (as Massa- 
 chusetts and Maine)^ where negotiable paper is privid facie pay- 
 ment of the debt for which it is given, and not anywhere, if he 
 voluntarily elects to receive payment of the freight in this way. 
 But if he receives bills or notes for his freight because he can get 
 nothing else, — and whether it be so or not seems to be a ques- 
 tion for the jury, — then, if they are dishonored, his claims 
 against the consignee or consignor, revive.^ 
 
 As the current of authority in this country gives the master a 
 lien on the freight, not only for his disbursements for the ship, 
 but for his own wages also, — on both points differing from the 
 English law,'^ — it should follow that payment of freight by the 
 shipper to the owner, would not be available as a defence 
 against a demand of freight from the shipper by the master, 
 provided the master had notified the shipper of his claim, and 
 requested him not to pay over the freight, or at least to reserve 
 as much as would satisfy the master's claim.^ 
 
 1 See 2 Parsons on Contracts, p. 136 ; and ante, p. 93, note 1. 
 
 - In Taplej v. Martens, 8 T. R. 451, the consignor was held liable. But the court 
 said : " If the fact had been, as supposed in argument by the defendant's counsel, that 
 the consignee had been ready to pay in money and the plaintiff had taken this bill for 
 his own accommodation, there would have been some weight in the argument, but the 
 fact was otherwise." So if the plaintiff had been guilty of any negligence, after he had 
 taken the bill, in not endeavoring to enforce payment of it. See also. Marsh v. Pedder, 
 
 4 Camp. 257, 262; Grant v. Wood, 1 Zabris. 292. In Strong v. Hart, 6 B. & C. 160, 
 it was held, that an insti-uction that the jury should find for the defendants if they 
 thought that the captain took the bill voluntarily and for his own convenience, was 
 correct ; and that the defendants were not bound to prove that an offer was made to 
 pay in cash. See also, Anderson v. Hillies, 12 C. B. 499, 10 Eng. L. & Eq. 495. 
 
 3 See post, ch. 11, ^ 2. 
 
 * White V. Baring, 4 Esp. 22. But see Atkinson v. Cotesworth, 3 B. & C. 647, 
 
 5 Dow. & By. 552. In this country the law is, as stated in White v. Baring. See 
 Lewis V. Hancock, 11 Mass. 72. In Ingersoll v. Van Bokkelin, 7 Cow. 670, 5 Wend.
 
 CII. VIII.] PAYMENT BY A CHARTERER. 257 
 
 The master can retain the goods against a purchaser; and if 
 part be delivered, he can retain the residue ; and he may retain 
 any part of the goods belonging to one person, for all the freight 
 due from that person. But if the consignee sells the goods to 
 different purchasers, and the part sold to one is delivered to him, 
 the master can retain the residue, which belongs to other pur- 
 chasers, only for the freight due on that residue, and not for the 
 freight due on the part delivered. Such at least is the doctrine 
 laid down by all who have treated of this subject, confirmed as 
 we suppose by practice, and resting upon one adjudicated au- 
 thority at least ; but in a recent case the English courts cast 
 some doubt upon it.^ 
 
 315, a bailee with whom the master had deposited the goods, was held liable for them 
 in trover, he having delivered them over to the consignee by order of the owner of the 
 ship, to whom the consignee had paid the freight. 
 
 1 In Sodergreen r. Flight, cited in Hanson v. Jleyer, 6 East, 622, the action was 
 brought by the captain of a ship to recover freight on 850 barrels of tar, which had 
 been shipped by one Hippius. He sold the barrels to the defendants before the ship 
 arrived. After arrival 721 barrels were delivered, when, Hippius having stopped pay- 
 ment, the captain refused to deliver the rest, unless they would pay the freight, not 
 only of what remained, but of what had been before delivered, which they refused to 
 do. Subsequently it was agreed that the whole cargo should be delivered up, and an 
 action brought for the freight. Lord Kenyan held that the plaintiff was entitled to 
 recover freight for the whole amount. The Reporter then adds : "His lordsliip being 
 of opinion that the captain had a lien on the tar remaining on board for the whole 
 freight, as well the freight of the barrels delivered as of those remaining on board, be- 
 longing all to the same person and under one consignment. But he tliought that if 
 Hippius had sold tlic tar to different persons, the captain could not have made one pay 
 for the freight of what had been delivered to another." On the authority of this case, it 
 has been laid down in all the works on the law of shipping, that a captain, if he delivers 
 part of a cargo, has a lien on the rest, for the freight of the wliole, provided it belong 
 to one person. By the bills of lading in this case, the tar was deliverable unto order, 
 "he or they jKii/inf/ frc([/ht for the said rjoods." The question of the lien of the captain 
 did not arise, the only point in dispute being whether the captain, having delivered the 
 tar could recover freight from the purchaser, wliich seems under the cu-cumstances not 
 to admit of doubt. The precise question of the lien of tlie captain was decided in a 
 late case in England. Mollcr v. Young, 5 Ellis & B. 7, 30 Eng. L. & Eq. 345. The 
 plaintiff, being the owner and master of a ship, sued the defendants for not accepting 
 goods transported in his vessel in a reasonable time. The defendants were indorsees 
 of a bill of lading, by wliich the goods were deliverable to them, on payment of 
 freight, as per charter-party. This latter instrument provided that the cargo siiould be 
 delivered on payment of freight, and that freight should be paid on delivery of the 
 cargo. On the arrival of the vessel, a portion of the cargo v/as delivered. The plain- 
 tiff refused to deliver the rest till freight for the part already delivered had been paid, 
 and the defendant refused to pav anv freight till the whole had been delivered. Ten 
 '22*
 
 258 ON THE LAW OF SHIPPING. [bOOK I. 
 
 If the voyage for which the vessel is chartered, be, as it often 
 is, a double voyage ; that is, a voyage out and home ; the ques- 
 tion occurs whether any freight is due if the vessel safely 
 performs the outward voyage and delivers her cargo, but is 
 lost before her return home. It is perhaps impossible to give 
 any general rule which shall always answer this question, be- 
 cause each case must be judged of by itself; and these cases, as 
 they are presented in the books, often involve questions of min- 
 gled fact and law which are sometimes of great difficulty. 
 There is nothing to prevent the parties from making such a bar- 
 gain, on this point, as they choose to make. They may say dis- 
 tinctly, that so much freight shall be paid if she performs one 
 passage in safety, so much if another, and so on for the rest; or 
 they may agree that nothing shall be payable by way of freight, 
 unless she performs all of them, and brings the last cargo home 
 in safety. And the question always is, which of these two 
 things did they mean to express by the words which they used. 
 
 There is perhaps some tendency in the courts to look upon 
 such voyages as distinct, especially if the shipper or charterer 
 derives a distinct benefit from each voyage, and receives his 
 goods at the end of each with their value enhanced by the car- 
 riage ; and in such a case, nothing but plain language, providing 
 that no freight shall be earned unless the whole voyage, or all 
 
 days, beyond the running days mentioned in the charter-party, elapsed before the pLain- 
 tiff would consent to deliver the rest of the cargo. As soon as this was done, the 
 defendant paid the freight for the whole. The Court of Queen's Bench held that the 
 plaintiff was entitled to recover on the ground that the master was not bound to deliver 
 the whole till he was paid for that already delivered, and that a delivery of a part did 
 not waive the lien as to the residue. This decision was reversed by the Court of Ex- 
 chequer Chamber, 5 Ellis & B. 755, 34 Eng. L. & Eq. 92. It was there held that the 
 master might assert his right of lien, and refuse to deliver the goods until he was paid 
 his freight, but that if he waived this right he was bound to deliver the wliole cargo, 
 and when this was done there was evidence of a contract on the part of the consignee 
 to pay freight for the whole. It will be observed that in this case the consignee was 
 not owner of the goods. In a case where he is, the law may be otherwise. In Benial 
 V. Pirn, 1 Gale, 17, it seems to have been considered that a delivery of part does not 
 defeat the lien as to the residue, but that if there are two contracts to carry for the same 
 person, with different termini in each contract, no lien attaches for freight under the 
 one upon goods shipped under the other. Sodergrcen v. Flight was also fully sus- 
 tained in Boggs V. Martin, 13 B. Mon. 239. And sec Fuller v. Bradley, 25 Penn. 
 State, 120; Barnard v. Wheeler, 24 Maine, 412.
 
 CII. VIII.] PAYME^^T BY A CHARTEKER. 259 
 
 the passages be duly performed, would suffice to destroy Ihe 
 owners claim for freight 7>;'o rata} 
 
 As it is the owner's duty (unless otherwise stipulated) to keep 
 the ship in good repair, he not only may, but must, use sufficient 
 time for that purpose ; and during that time the charterer pays 
 as for any other part of the period for which he hires the ship.^ 
 And if the charterer has possession of her, it is his duty to see 
 that she is kept in repair, although the owner be ultimately liable 
 to him for the expense. He must not abandon the ship as long 
 as she is sea-worthy, or can be kept so, or made so by any rea- 
 sonable efforts. And if the owner retains possession, the char- 
 terer must not take his goods out, or abandon the voyage, so 
 long as the owner can keep her or make her fit for the voyage, 
 unless he distinctly refuses, by word or act, to do so.^ 
 
 1 The law is stated by Lord Mansfield as follows : " If there he one entire voyage 
 out and in, and the ship be c:ist away on tlie homeward voyage, no freiglu is due, no 
 wages are due, because the whole profit is lost ; and by express agreement the parties 
 may make the outward and Iioraeward voyages one. Nothing is more common than 
 two voyages ; whenever tliere are two voyages, and one is performed, and the sliip is 
 lost on the homeward voyage, freiglit is due for the first." Mackrell v. Simond, 2 
 Chitty, 666. See also, Molloy, de -Jure Mar. Book 2, ch. iv. § 9 ; Malynes, p. 98. In 
 the following cases it was held that the voyages were distinct, and freight was payable 
 for those performed. Mackrell v. Simond, ut sup. ; Brown v. Hunt, 11 Mass. 45 ; Locke 
 V. Swan, 13 Mass. 76. In the late case of Towle v. Kettcll, 5 Cush. 18, the charter- 
 party described tlie voyage from Boston to Wilmington, N. C, and from thence to 
 Cape Haytien in the island of Hayti, and from thence back to Boston. Tlic clause, 
 relative to tlic paj-mcnt of freight, was as follows : " for the cliarter or freight of the 
 said vessel during the voyage aforesaid, in manner following, that is to say, fifteen 
 hundred dollars, say so mucli in Hayti, as the master may want for the disbursement 
 of the vessel, and the balance on tlie discharge of the cargo in iBoston, togetlicr with 
 ail poi-t charges, lighterage, and pilotage in Hayti." The master was to have what 
 freight could be got from Boston to Wilmington. The vessel was lost on her return 
 voyage from Hayti to Boston. Tlie court held that the voyage was an entire one, and 
 that no freiglit was due, that the provision for paying the master at Hayti what he 
 miglit want for the disbursements of the vessel could not affect the construction of the 
 instrument. In the following cases also, the voyages were held to be entire : Bvrne v. 
 Pattinson, in K. B. Trinity Term, .37 Geo. 3, Abbott on Ship. 466; Smith v. Vvilson, 
 8 East, 437; Coffin i'. Storer, 5 Mass. 252; Liddard v. Lopes, 10 East, 520; Scott v. 
 Libby, 2 Johns. 330; Barker v. Ciieriot, 2 Johns. 352 ; Pcnoyer v. Ilallett, 15 Jolins. 
 332; Burrill v. Clccman, 17 Jolins. 72; Blanchard r. Bucknam, 3 Grccnl. 1 ; Hamil- 
 ton V. Warfield, 2 Gill & J. 482. See also. Gibbon v. Mcndez, 2 B. & Aid. 17 ; Cro- 
 zier V. Smith, 1 Scott, N. H. 338; Sweeting v. Darthcz, 14 C. B. 53S, 25 Eng. L. & 
 Eq. 326. 
 
 - Havclock V. Geddcs, 10 East, 555; Kiplcy v. Scaifc, 5 B. & C. 107. 
 
 ^ Kimball v. Tucker, 10 Mass. 192. In this case it was held that where the vessel
 
 260 ON THE LAW OF SHIPPING. [BOOK I. 
 
 SECTION V. 
 
 OF DEMURRAGE AND LAY DAYS. 
 
 In all commercial and maritime affairs, time is an element of 
 great value and importance. It should follow, therefore, that 
 both parties should be punctual. If the ship is not ready when 
 she should be, but a material delay seems to be probable, the 
 charterer may seek another ship ; if the cargo be not ready, the 
 owner may seek another cargo.^ If a vessel is chartered to load 
 
 became unseaworthy during the voyage, the hirer could not stand still calling for re- 
 pairs, but must provide whatever was necessary, at the expense of the owner, to enable 
 the vessel to complete her voyage. Seicall, J., on page 196, said : "If the vessel, suf- 
 ficient at the commencement of the voj'age, be entirely lost in the course of it, the one 
 must betake himself to another vessel, and the other loses his freight-money, but noth- 
 ing more, upon the contract of charter-party. The hirer must not abandon the vessel, 
 while he can keep her afloat, and suitably provided for the employment and destination 
 for which she was hired : and the owner must be ready to pay all expenses and dam- 
 ages, necessarily incurred for the purpose." In The Agricultural Bank v. Barque 
 Jane, 19 La. 1, it was held, that where a vessel was chartered, and put up as a general 
 ship by the charterers, the shippers of goods could not maintain an action against the 
 owners for damage done to their goods through the unseawortliiness of the ship, but 
 that their action was against the charterers, though they in turn might recover from the 
 owners whatever they might have to pay. 
 
 1 Thus, in Weisser v. Maitland, 3 Sandf. 318, the charter-party provided that the 
 charterer should be allowed for the loading and dischai-ging of the vessel as follows : 
 "Lay days, to load, twenty days from the twelfth." The o'mier guaranteed to have 
 the vessel ready by that time. The chai'ter-party was to commence when the vessel 
 was ready to i-eceive her cargo, and notice thereof given to the charterer. It was held, 
 that the vessel's being ready on the day named, was a condition precedent to the char- 
 terer's liability to put on board the cargo. Tiie court said : " Time was of the essence 
 of the contract, and it is often so in commercial transactions. The success of the en- 
 terprise often depends upon dispatch. It was plainly the intent of these parties to be 
 ready by the twelfth of April at all events. The cases show that the great principle to 
 be considered is the intent of the parties, and where the time is essential, and the words 
 of the charter-party are plain, as in the case here, we cannot doubt that the agreement, 
 in reference to the day when the vessel was to be ready, is to be regarded as a condi- 
 tion precedent." See also, Shadforth v. Higgin, 3 Camp. 385 ; Glaholm v. Hays, 2 
 Scott, N. K. 471 ; Shubrick v. Salmond, 3 Burr. 1637 ; Soames r. Lonergan, 2 B. & 
 C. 564 ; 2 Parsons on Contracts, 172. It was held, in Pope v. Bavidge, 10 Exch. 73, 
 28 Eng. L. & Eq. 569, that, where it was agreed that the ship should make six succes- 
 sive voyages, and that they should not be made later than the last day of Februaiy, 
 1853, a plea that during three voyages the ship sustained great damage from the dan-
 
 CH. VIII.] DEMURRAGE AND LAY DATS. 261 
 
 at a foreign port and to proceed thence with the cargo to one of 
 several other ports, it has been held that the master need not 
 communicate with the charterer, and if orders are not sent 
 within a reasonable time, he may proceed to either of the ports 
 mentioned.^ The ship-owner must perform the voyage in as 
 short a time as is consistent with safety, and for any loss sus- 
 tained by the charterer in consequence of the voyage being pro- 
 tracted by any culpable act of commission or omission, the 
 owner is liable.^ The charterer must load and unload with all 
 reasonable despatch ; and the owner must give him all reason- 
 able facilities ; and for non-performance of these obligations, on 
 either side, the injured party may have his remedy, without any 
 express stipulations.^ 
 
 It is usual, however, to provide for all obligations of this kind, 
 under the name of Demurrage. Sometimes it is provided that 
 the ship shall be ready on a certain day, and if not, the charterer 
 shall be allowed so much for every day that he is delayed. 
 More often, and, indeed, almost always, it is provided that the 
 charterer may have so many days for loading and for unloading 
 the ship, and that he may detain her more, if he will pay so 
 much for each additional day, or that if he detain her longer, he 
 shall pay so much. If the whole charter be on time, there is no 
 need of these provisions. If it be for a voyage or voyages, then 
 these days, for which he pays nothing, are a part of the voyage. 
 They are called lay days, and all belong to the charterer ; he is 
 under no obligation to receive the cargo until it suits his con- 
 venience, provided he do not exceed the specified number of the 
 lay days for unloading; and if he does not receive it, and in the 
 meanwhile it is lost by a peril of the sea, there is no delivery of 
 the goods, no completion of the voyage, and no freight earned.* 
 
 gcrs of the seas, wliicli damage was necessaiy to be repaired hcfore the siiip could pro- 
 ceed on her fourth voya.i,^e, and that this could not be done before the last day of Feb- 
 ruary, 1853, had elapsed, was no answer to an action for a breach of the contract. 
 
 1 Sieveking v. Maass, G Ellis & B. G70, 3G Eng. L. & Eq. 185. Affirmed in the 
 Exchequer Chamber, 6 Ellis & B. 674, 36 Eng. L. & Eq. 187, 
 
 2 The Bark Gentleman, Olcott, Adm. 110, 1 Blatchf. C. C. 196. 
 
 3 Sec Sweeting v. Darthez. 14 C. B. 538, 25 Eng. L. & Eq. 326 ; Harris v. Drecs- 
 man, Exch. 1854, 25 Eng. L. & Eq. 526 ; CIcndaniel v. Tuckerman, 17 Barb. 184, 
 
 * Lacombc v. Wain, 4 Binn. 299 ; Brown v. Ktvlston, 9 Leigh, 532,
 
 262 ON THE LAW OF SHIPPING. [UOOK I. 
 
 Nor is the charterer bound to furnish a cargo as soon as re- 
 quested by the captain, but he can load it any time within the 
 lay days.^ 
 
 If words to a similar effect are written in the bill of lading, 
 the reception of the goods by a party, under such a bill, would 
 be evidence of an agreement on his part to pay the prescribed 
 demurrage j^ without this clause in the bill, however, there is no 
 claim on the consignee for demurrage as such, although there 
 may be a claim for damages caused by delay .^ 
 
 Lay days, by the general rule, do not commence until the 
 vessel has arrived at the usual place for unloading.* But where 
 such place is a dock, it has been held that they begin when she 
 enters the dock, and not when she reaches her place of discharge 
 in the dock.^ The parties may, however, stipulate as they 
 
 1 See ante, cases cited p. 248, note 1. 
 
 - See ante, p. 219, note 3. 
 
 3 " Demurrage," so called, can be recovered only where it is reserved by the charter- 
 party or bill of lading. The remedy, where no such express reservation exists, appears 
 to be by an action on the case in the nature of demurrage, for damages, for the deten- 
 tion. Thus, in Kell v. Anderson, 10 M. & W. 498, Lord Abinger, C. B., said: "I 
 thought, that as no time was limited by the charter-party from which the demurrage 
 was to be reckoned, it must be reckoned from the time of the ship's arrival at the ordi- 
 nary place of discharge ; and that if she was prevented from discharging sooner by the 
 default of the defendant, that sJioidd have been the subject of an action on the case, and not 
 of an action for demurrage." So Harris, J., in the recent case of Clendaniel v. Tucker- 
 man, 17 Barb. 184, said : " It is true that demurrage, properly so called, is only pay- 
 able when it is stipulated for in the contract of affreightment ; but it is also true, that 
 when a vessel has been improperly detained by the freighter or consignee of the cargo, 
 the owner may have a special action for the damage resulting to him from the deten- 
 tion." See also, Horn v. Bensusan, 9 Car. & P. 709 ; Atty v. Parish, 4 B. & P. 104 ; 
 Eobertson v. Bethune, 3 Johns. 342. In Sprague v. West, Abbott, Adm. 548, it was 
 held, that an action would lie against a consignee, who was also the owner of the 
 goods, for detaining the ship beyond the proper time, although the bill of lading con- 
 tained no stipulation as to demurrage, lay days, or detention. In Brouncker v. Scott, 
 4 Taunt. 1, the master of a ship brought an action to recover a compensation in dam- 
 ages for the detention of his ship beyond a reasonable time for the delivery of her 
 cargo in the port of London, and declared also generally for demurrage. Held, that 
 such an action could not be maintained by the master, whatever right the owners 
 might have to sue in their own names. See also, Evans v. Forster, 1 B. & Ad. 118. 
 But where the master is owner pro hac vice he may maintain the action. Clendaniel 
 V. Tuckerman, 17 Barb. 184. 
 
 * Brereton v. Chapman, 7 Bing. 559 ; Kell i\ Anderson, 10 M. & W. 498. 
 
 5 Brown v. Johnson, 10 M. & W. 331 ; Gibbens v. Buisson, 1 Bing. N. C. 283. In 
 Bailey v. De Arroyave, 7 A. & E. 919, the vessel was to have ninety running days, and
 
 en. viil] demurkage and lay days. 263 
 
 please about the time when they shall commence.^ And it 
 sometimes depends on the usage of the port.- 
 
 A delay by capture, or embargo, or by any compulsion, gives 
 no ground for a claim for demurrage, according to some au- 
 thorities ; because, for this, there must be a voluntary delay ; 
 such, at least, appears to have been once regarded as the general 
 principle.^ But the decisions on this question cannot be recon- 
 ciled. On the whole, we prefer those which hold that the con- 
 signees shall, generally at least, pay demurrage, although no 
 blame be imputable to them, provided the owner be not in fault.^ 
 
 ten days of (lcmurrac;e from her arrival at W. being ready to unload and having re- 
 ceived pratique. The declaration stated that the defendant did not unload and load 
 the vessel, though she was ready and had performed pratique. Both of whicli aver- 
 ments were denied by tlie plea. It was proved that there was no quarantine or pra- 
 tique given at W., or on that part of the coast, but that the vessel was ready to unload. 
 It was held, that she must be taken to have received pratique, when she was at W., 
 ready, and at liberty to unload, aiul that the lay days then commenced. 
 
 1 Jackson v. Galloway, 5 Bing. N. C. 71. In this case, by the charter-party, the 
 vessel was to load coals and iron at Cardiff, and proceed with them to Alexandria, the 
 running days to commence on the sixteenth of December. By consent Pemliroke was 
 substituted for Cardiff. It was licld, that the rest of the charter-party was not changed, 
 and that the lay days commenced on the sixteenth, wherever the vessel might be. 
 
 - In Leidemann v. Schultz, 14 C. B. 38, 24 Kng. L. & Eq. .305, it. was provided in the 
 charter-party tiiat the ship sliould proceed to Newcastle-on-Tyne, and should there be 
 ready, furthwitli, to take on board a complete cargo of four keels of coal, and tlie re- 
 mainder coke, " in regular turns of loading." It was held, that the question, whether 
 the vessel was loaded in a reasonable time, was to be decided with reference to the 
 meaning of the term "regular turns of lo.ading," as cxjilained l)y the usage of the port. 
 See also, on this point, Taylor v. Clay, 9 Q. B. 71-3; Hudson i'. Clementson, 18 C. B. 
 213, 36 Eng. L. & Eq. 332 ; Nicliols v. Jewett, U. S. D. C, Mass., Boston Daily Adv. 
 Marcli 23, 1857 ; Nicliols v. Trcmlett, Same Court, 20 Law Reporter, 324. 
 
 '■^ Douglas V. Moody, 9 Mass. 548, 555, jjcr Scicall, J. In Duff' r. Lawrence, 3 Johns. 
 Cas. 1G2, it was held, tliat a delay for (piarantine did not give any claim to demurrage, 
 but that wiiere the vessel was not allowed to enter, by government, and tlie proliibition 
 was permanent, the charterer should pay for the delay, especially as by the charter-party 
 he might have gone to another port, althougli on jiaymcnt of a higher freigiit. 
 
 * III Leer i\ Y'ates, 3 Taunt. 38G, a general shijj took brandies on board, under bills 
 of lading, wliieli allowed twenty lay days for delivering the goods in London, and 
 stipulated for .£4 per day demurrage afterwards. Certain of the consignees choosing 
 to have their goods bonded, the vessel could not make her delivery at tlic London 
 docks, until forty-six days after the lay days had expired. The delay in the unlading 
 w.as caused solely by the act of the consignees of the uppermost goods, yet the 
 consignees of the undermost were held liable. See also, Ilarman )•. Gandolph, 
 Holt, N. V. 35. So in Randall i'. Lynch, 2 Camp. 352, 12 East, 179, the vessel 
 could not be unloaded within the stipulated time on account of the crowded state of
 
 264 ON TBE LAW OF SHIPPING. [BOOK I. 
 
 And if principles assumed to be law in the modern cases are to 
 be adopted, we should say that delay from the elements, as frost,^ 
 or tempest, or tide,^ or from any act of government,-^ or from any 
 
 the London docks, yet the freighter was held liable for the delay. Lord EUmhorongh 
 said : " The question is, whether the detention of the ship, arising from the inal)ility of 
 the London Dock Co. to discharge her, is, in point of law, imputable to the freighter; 
 and I am of opinion that the person who hires a vessel detains her, if at the end of the 
 stipulated time he does not restore her to the owner. He is responsible for all the various 
 vicissitudes lohich may prevent him from doing so." But in Kogers v. Hunter, 2 Car. «Sb P. 
 GOl , Moody & M. 63, Lord Tenlerden was of the opinion that a defendant could not be 
 said to detain a vessel, before he could get at his goods. So in Dobson v. Droop, 4 
 Car. & P. 112, Moody & M. 441, he said: "I am of opinion that, if a party cannot 
 get his goods, he being prevented by a delay on the part of the owner of other goods 
 on board the same vessel, he is not liable for demurrage. The question here is, 
 whether the removal of the defendant's goods was obstructed by the misconduct of an- 
 other in not removing his goods ; for, if so, the defendant is not liable for demun-age." 
 The weight of authority is certainly in favor of the cases first cited, and we are inclined 
 to believe that they are the more correct in principle. The parties are at libertj- to 
 make any contract they please, and if they choose to stipulate that demun-age shall be 
 paid at all events, there seems to be no reason why the consignees should not pay it, 
 even though the dela}' is not occasioned by their fault, if the owner be not to blame, 
 but if he is in fault then it is clear that the consignees will not be liable. Benson v. 
 Blunt, 1 Q. B. 870; Taylor v. Clay, 9 Q. B. 713. So, generally, if an owner do not 
 procure the necessary papers for the discharge of the ship, he cannot claim demurrage, 
 but if the defendant request him not to procure them, the defendant cannot set up their 
 not being procui-ed in an action brought against him for demun-age. Furnell v. 
 Thomas, 5 Bing. 188. 
 
 1 Barret v. Dutton, 4 Camp. 333. But if the detention occur after the vessel is 
 loaded, the charterer will not be liable. Pringle v. MoUett, 6 M. & W. 80. In Jamie- 
 son V. Laurie, 6 Bro. P. C. 474, where a British vessel was detained in St. Petersburg, 
 to take on board her cargo, nearly two months beyond the stipulated time, and then 
 setting sail, was driven back and frozen in for the winter, which began somewhat 
 earlier than usual, demurrage was awarded only to the sailing of the vessel. And so, 
 where, by the delay, the vessel lost the opportunity of sailing with convoy, and was 
 obliged to wait nearly two months for another, the owner having covenanted that she 
 should sail with convoy. Conner i?. Smythc, 5 Taunt. 654. A similar iiile was 
 adopted where demurrage was stipulated to be paid whilst the ship was waiting for 
 convoy. See Lannoy v. Weriy, 4 Bro. P. C. 630. 
 
 2 In Clendaniel v. Tuckerman, 17 Barb. 184, tiic vessel had arrived, and notice was 
 given that the captain was ready to deliver the cargo. She was, however, detained by 
 the consignee, and while waiting was capsized by a freshet, and the greater part of her 
 cargo lost. Held, that the consignee was liable for demurrage. See also, Brown r. 
 Ealston, 9 Leigh, 532. 
 
 3 Bessey v. Evans, 4 Camp. 131 ; Hill v. Idle, id. 327. See also. Bright v. Page, 3 
 B. & P. 295, note. In Brooks v. Minturn, 1 Cal. 481, where a vessel was seized by 
 the revenue officers, it was held that if the seizure was illegal no demurrage was due, 
 so, if the seizure was legal, but occasioned by the ftiult of the ship-owner or his agent ; 
 but the court did not decide how it would be if the seizure had been occasioned by the
 
 CH. VIII.] DEMURRAGE AND LAY DAYS. 265 
 
 positive and certain disability of the consignee, although it could 
 not be in any way imputed to his own fault, that is, neither to 
 his own act, nor to his own neglect, should give claim to 
 demurrage. But the parties may stipulate that the charterer 
 shall be liable for no delay which is not caused by his own de- 
 fault.i 
 
 As a general rule the consignee takes the risks of roads and 
 means of transportation from the dock, and is bound to take the 
 cargo as fast as it is delivered to him from the vessel, but the 
 owner of the vessel takes the risk of working weather, during the 
 time required for the unlading.^ The original purpose of the pro- 
 vision in regard to demurrage was first, to hold the charterer to 
 a proper endeavor to save time, and next, to make him pay a 
 proper compensation for all the tiifte of the owner which he 
 might have saved but did not. For a similar reason, if any delay, 
 for which he is not answerable, occurs after the lay days should 
 have begun, these days do not always begin to count from the 
 first day when he can work. Suppose he has forty "days to un- 
 load the cargo and put on board a new one ; and there is a 
 compulsory delay of ten days after these lay days should have 
 begun. If he can now, without extraordinary and unreasonable 
 effort and cost, unlade and lade in thirty days, he must do it ; 
 for he has forty days still from the actual beginning of his work, 
 only if the whole of the forty are necessary for the work."^ 
 
 It is usual to call lay days "working days,"* or to define 
 them by some similar epithet ; but in the absence of such lan- 
 guage, and of any language of an analogous meaning, the law- 
 merchant would, we think, define the mere word " days," as 
 
 fault of the consignee. It has been also held, that the indorsee of a hill of lading is 
 liable for demurrage occasioned by his not being notified of the sliip's arrival, the court 
 holding that, although it is a convenient practice to give notice, yet it is not binding 
 on the ship-master to do so. Ilarman i'. Clarke, 4 Camp. 159 ; Ilarman v. Mant, id. 
 161. So demurrage was allowed where the delay was owing to a prohibition of inter' 
 course between the shiji and the shore, on account of infectious disease. Barker ik 
 Hodgson, 3 M. & S. 267. 
 
 1 Towle V. Kcttell, 5 Cush. 18. 
 
 2 Spraguc V. West, Abbott, Adm. .'548. 
 
 8 Kogcrs V. ITuntcr, 2 Car. & P. 601, JNIoody & U. 6.3. 
 * Brooks V. Minturn, 1 Cal. 481. 
 VOL. I. 23
 
 266 ON THE LAW OF SHIPPING. [book I. 
 
 " running days," and not as "working days,"^ unless there was 
 some special usage to the contrary.^ 
 
 If, besides the stipulated lay days, the charter-party provides 
 that the charterer or consignee may detain the vessel, at so 
 much a day for a certain period, the master is bound to wait 
 during that whole period if the consignee requests him to do so. 
 But when it expires he may go at once; and if he still delays, 
 and then receives a cargo from the consignee, the consignee 
 would certainly be bound to pay for these additional days, if he 
 had requested the master to remain ;^ and also, we think, if he 
 had made no special request, but had profited by them to put 
 his cargo on board, because the law would imply that the mas- 
 ter waited by reason of an understanding with the consignee, 
 and at his request. • 
 
 If days are to be paid for after and beyond all those provided 
 for, compensation is to be made on the principle of indemnity to 
 the owner of the ship; and the rate for the days agreed on, 
 would not be conclusive as the measure of damages, although it 
 might be evidence.* 
 
 If the charter be on time, it would seem that the charterer is 
 liable for all the time lost* by detention, or embargo, or capture, 
 unless and until the vessel is condemned as prize, for this latter 
 fact dissolves the contract. There must, however, be some limit 
 to this in every case of hostile or public seizure or arrest, although 
 no adjudged cases enable us to lay down the limitation with 
 much distinctness. In the absence of any more definite rule. 
 
 1 Brown v. Johnson, 10 M. & W. 331 ; Brooks v. Minturn, 1 Cal. 481 ; Cochran v. Eet- 
 (berg, 3 Esp. 121, per Ld. Eldon, C. J. 
 
 2 And where the law of the country of the port of discharge prohibits working on 
 .Sundays or holidays, they will be excluded. Cochraa v. Retberg, 3 Esp. 121. See 
 also, Gibbens v. Buisson, 1 Bing. N. C. 283, per Bosanqiiet, J. But in Field v. Chase, 
 Hill & Den. 50, it was held to be no defence against the payment of demurrage that 
 the ship arrived at Cuba during the Easter holidays, and that according to the usage 
 of the place, the custom-house was closed, and the ship could not be entered nor per- 
 mission obtained to unload, running days being held to include Sundays and custom- 
 house holidays. 
 
 3 Jaraieson v. Laurie, 6 Bro. P. C. 474. See also, Robertson v. Bethunc, 3 Johns. 
 342 ; and p. 248, n. 1, ante. 
 
 * JNIoorsom v. Bell, 2 Camp. 616 ; Randall v. Lynch, id. 352.
 
 CH. Vin.] COXSTRUCTION OF CEARTER-PARTIES. 267 
 
 we should say that, whatever circumstances would suffice to 
 break up the voyage, would suffice to terminate the charter- 
 party, and the liability of the charterer.^ 
 
 SECTION VL 
 
 OF THE COXSTRUCTION OF CHARTER-PARTIES. 
 
 Although the parties may enter into what stipulations they 
 please, the effect of their stipulations often depends on the legal 
 construction of the instrument which contains them. This con- 
 struction is always made by the court, and questions relating to 
 it are questions of law and not of fact.^ All courts, in constru- 
 ing any instrument, pay great regard to the intention of the par- 
 ties. This is to be gathered, if possible, from the words they use, 
 aided by whatever evidence is admissible. And if the intention 
 can be ascertained, it is carried into effect, provided the words 
 used will bear this interpretation without any violation of the 
 rules of legal construction.^ 
 
 One of the questions of this kind which occurs most fre- 
 
 1 Minot V. Durant, 7 Mass. 436. A sliip was chartered for a voTap:c from Portland 
 to St. Croix, and back to the United States twice. Tiie defendant covenanted to pay 
 at a certain rate per ton, per raontii, durin<^ the time the vessel should be employed. 
 The vessel sailed from St. Croix where she arrived, and discharged her cargo, and 
 from thence sailed for Wilmington in South Carolina. Here she was detained by an 
 embargo thirteen months and twelve days. After being released she performed 
 another voyage to the West Indies, and back to Portland, where she was returned to 
 the owner. The defendant claimed to be entitled to deduct the hire during the time of 
 the detention, but the court held that he was bound to pay for the whole time the ves- 
 sel was in his employ. See also. Brown v. Hunt, 11 Mass. 4.5; Spafford v. Dodge, 14 
 Mass. 66, 71 ; Odlin r. Ins. Co. of Penn. 2 Wash. C. C, 312; The Nathaniel Hooper, 
 3 Sumner, 542; Patron v. Silva, 1 La. 275 ; Bork v. Norton, 2 McLean, C. C. 422; 
 M'Bridc v. Mar. Ins. Co. 5 Jolms. 299; Palmer v. Lorillard, 16 id. 348; Baylies v. 
 Fcttyplace, 7 Mass. 325 ; Hadley i'. Clarke, 8 T. R. 259 ; and post, p. 273. If the 
 charterer agrees to pay a certain j)rice in case of capture and condemnation, the 
 declaration must show where, when, and by whom the vessel was captured, and that 
 the court, which condemned her, had jurisdiction. Stone v. Patterson, 6 Call, 71. 
 
 " 2 Parsons on Contracts, 4, 5. 
 
 2 2 Parsons on Contracts, 6.
 
 268 ON THE LAW OF SHIPPING. [bOOK I. 
 
 quently, in contracts relating to shipping, is whether a covenant 
 be a condition precedent, or an independent covenant. That is, 
 whether a promise made by one party be such, that if he breaks 
 it, this breach is a sufficient excuse for the entire disregard of all 
 his promises by the other party ; or is it such, that if he breaks 
 it, the other party is still bound to his promises, but may claim 
 indemnity from him who has broken his promise.^ 
 
 Thus, if an owner contracts that his ship shall go to Liver- 
 pool, ai)d there take and bring to Boston a full cargo for the 
 shipper, who agrees to pay him thirty dollars a ton, and the 
 ship, when three fourths laden, sails without sufficient reason, 
 -although the shipper has the remaining fourth ready to be put 
 on board, if the promise to take and bring a full cargo is a 
 condition precedent to recovery of freight, the condition having 
 failed, the owner can recover nothing. If it is an independent 
 promise, and the promise to pay thirty dollars a ton another 
 promise, then the owner can claim this freight for all that he 
 brought, and the shipper must pay it; but may still have his 
 action, or his offset, for any damage he sustains by reason of the 
 ship sailing with only part of his cargo.^ 
 
 If the covenant or promise be a condition precedent, the con- 
 sequence of a breach is that the whole obligation fails on the 
 other side. Hence the first, and indeed the only rule, which is 
 of much utility in questions of this kind is, that if the covenant 
 or promise is inseparably connected with the whole of the con- 
 sideration on which it rests, then it is a condition precedent ; but 
 if that consideration can be divided into parts, and the promise 
 which is broken can be made to attach to some part, and the 
 promise that is kept to another part, then the bargain becomes 
 in fact two or more bargains, one of which is fulfilled and the 
 others not; and then the covenants or agreements are inde- 
 pendent or separable, and do not constitute a condition prece- 
 dent.^ 
 
 1 2 Parsons on Contracts, 40, 41. 
 
 2 Ritchie v. Atkinson, 10 East, 295. See ante, p. 245, n. 4. 
 
 8 Per L(l. Mansfield, C. J., in Boone v. Evre, 1 H. Bl. 273, note a. See also, Duke 
 of St. Albans v. Shore, 1 H. Bl. 270; Canipl)ell v. Jones, 6 T. R. 570 ; Fothergill v. 
 Walton, 8 Taunt. 576; Glaholm v. Hays, 2 Man. & G. 257; Barruso v. Madan, 
 2 Johns. 145; Puller v. Staniforth, 11 East, 232; Storer v. Gordon, 3 M. & S. 308.
 
 CE. Viri.] CONSTRUCTION OF CHARTER-PARTIES. 269 
 
 In the case supposed, the consideration for carrying the cargo, 
 is the agreement to pay thirty dollars a ton ; now this considera- 
 tion is divrsible by its very terms into thirty dollars per each 
 ton; the promise to carry a full cargo, and the breach of it, may 
 then be divided correspondingly ; and the owner has broken all 
 that part of his promise which relates to that part of the cargo 
 which he did not carry, and has thereby released the shipper 
 from paying him for that part of the cargo. But he has kept 
 that part of his promise which relates to that part of the cargo 
 which he has brought, and for so much, therefore, the shipper 
 must keep his promise. So, if the owner promises that his ship 
 shall be stanch and tight ; and he carries the cargo, but the 
 ship is neither stanch nor tight, this is not a separable prom- 
 ise in the sense in which a promise to carry a full cargo is ; for 
 a ship must be sea-worthy, or not sea-worthy, as a whole. But 
 it is so far separable, that the effect of the breach of it does 
 not necessarily extend to the whole cargo, and therefore may 
 not to the compensation for carrying it. Therefore the owner 
 would recover his freight, but be liable in damages for any con- 
 sequences of the bad condition of his vessel, if goods were laden 
 on board, but the freighter might refuse to put the goods on 
 board.^ 
 
 In regard to dependent and independent covenants, see Pordage v. Cole, 1 Saund. 
 Wm's. Ed. 319; Roberts v. Brett, 18 C. B. 561, 36 Eng. L. & Eq. 358. 
 
 1 Havelock v. Geddes, 10 East, 555. In this case the owner of a vessel covenanted 
 that he would forthwith make her tight and strong, etc., for a voyage of twelve months, 
 and keep her so. To an action of covenant on the charter-party for freight, the 
 defendants pleaded the non-pcrforniance of this covenant in bar of the whole demand, 
 and the plaintiff demurred. In giving the opinion of the court. Lord Ellenlmvugh 
 said :. " The question upon the plea is, Whether the defendants are entitled to insist 
 that Xhe forthwith makiiir/ the s/iip tight, stafwh, etc., was a condition precedent. The 
 defendants did not repudiate the ship, because she was not immediately made tight, 
 stanch, etc., but took her into their service and employed her; and after having navi- 
 gated her for several months, they say that, because this was a condition precedent, 
 and was not performed, they arc not liable to pay any thing. They do not pretend 
 that the non-performance has damnified them to the extent of the payment tlicy wish 
 to evade ; and, to be sure, if this were a condition precedent, the neglect of putting in 
 a single nail for a single moment after the ship ought to liave been made tiglit, stanch, 
 etc., would be a breacii of tlie condition, and a defence to the wliole of the phiintifTs 
 demand. We are clear, however, tliat the defendants, who took the sl)ip into tlieir 
 service and employed iier in an unim])aircd state, have no right to insist tluit the forth- 
 with makinq her ti'/ht, etc., was a condition precedent. Whether a particular covenant 
 is to constitute a condition precedent depends upon the intention of the parties, as it is 
 
 23 1
 
 270 ON THE LAW OF SHIPPING. [BOOK I. 
 
 So, if he promised to sail with the first convoy ; but waited 
 and afterwards sailed and arrived in safety ; here, too, he would 
 recover his freight.^ And a covenant to sail with the first wind 
 
 to be collected from the instrument in which the covenant is contained And it 
 
 would be an outrage to common sense to say, that it could have been the intention of 
 these parties, that if the defendants took to this ship as a sliip in their employ under 
 the charter-party, they should be at liberty afterwards to insist that the making her 
 complete in every particular, and that forthwith, without any delay, was a strict condi- 
 tion precedent on the part of the plaintitf. The cases cited are also decisive upon the 
 
 point Boone v. Eyre, 1 H. Bl. 273, in the notes, lays down a very sensible general 
 
 rule, that where mutual covenants go to the whole consideration on both sides, they 
 are mutual conditions, the one precedent to the other : but where they go only to a 
 part, and a breach may be paid for in damages : there, the defendant has a remedy on 
 the covenant, and shall not plead it as a condition precedent. Had the plaintiff's neg- 
 lect here precluded the defendants from making any use of the vessel, it would have 
 gone to the whole consideration, and might have been insisted upon as an entire bar ; 
 because the consideration for the defendants' covenant to pay the freight would then 
 have failed in toto ; but as the defendants have had some use of the vessel, notwith- 
 standing the plaintiff's neglect, the plaintiffs covenant is to be considered as going to 
 a part only : the consideration has not wholly failed ; and the covenant cannot be looked 
 upon as having raised a condition precedent, but merely gives the defendants a right, 
 under a counter action, to such danuigcs as they can prove they have sustained from 
 this neglect. For these reasons we are of opinion that this plea cannot be supported, 
 and that the demurrer to it must be allowed.',' See also, Tarrabochia v. Ilickie, 1 H. 
 & N. 183, 38 Eng. L. & Eq. 339; Clipsham v. Vertue, 5 Q. B. 265, 272, per Ld. 
 Denman, C. J. ; Ollive v. Booker, 1 Exch. 416, 423, per Parke, B. ; and Elliot v. Yon 
 Glehn, 13 Q. B. 632, 641, per Erie, J., to the point that a loading or use by the charterer 
 would be considered as a waiver of the breach of the condition. In Dunbar r. Smeeth- 
 waite, Q. B. 1854, 24 Law T. 92, 29 Eng. L. & Eq. 189, in an action by a shipper of 
 goods against a ship-owner for a breach of covenant that the ship should be sea-worthy at 
 the commencement of the voyage, whereby he was prevented from insuring his goods, 
 the defendant pleaded that before any loss, damage, or prejudice had arisen to the plain- 
 tiff the ship was made sea-worthy. Held, no plea. A contrary doctrine to Ilavelock v. 
 Geddes has been asserted by the court of appeals in INIaryland, that in an action by 
 the shipper against the captain and consignee to recover money retained as freight, the 
 plaintiff might resist the defendant's claim thereto by showing that the vessel was not 
 sea-worthy at the commencement of the voyage, and recover accordingly. In this case 
 the ship proceeded upon the voyage, but was compelled by adverse weather to put into 
 a port, not that of destination, where she was condemned. Dickinson v. Haslet, 
 3 Har. & J. 345. But in Reed r. Dick, 8 Watts, 479, where the ship Vas lost by part- 
 ing her cable, Gibson, C. J., decided that evidence that the sails were insufficient, 
 would not make the carrier answerable for the injury to the goods on board. See also. 
 Hart V. Allen, 2 Watts, 114; Collier v. Valentine, 11 Mo. 299; Forbes v. Eice, 
 2 Brev. 363. 
 
 1 Davidson v. Gwynne, 12 East, 381. But when it is covenanted to load the vessel 
 in time to sail with a convoy on a particular day, and the vessel ai-rives out in time to 
 receive her cargo, but only a small portion of it is laden on the appointed day, the cap- 
 tain is not bound to wait, but may sail with the convoy, although the charterer offer to
 
 CH. Vlir.] CONSTRUCTION OF CHARTER-PARTIES. 271 
 
 is not a condition precedent.^ Nor is a stipulation to load cer- 
 tain goods.^ But if it is a part of the agreement that the ship 
 shall be at, or sail from a certain place on or before a certain day 
 there to receive a cargo, and she is not there on that day, this is a 
 condition precedent; so far, at least, as to discharge the freighter 
 from all obligation to load her, as the condition is not fulfilled; 
 but if he loads her and she carries the cargo, then she earns her 
 freight, subject as before, to damages for the breach of the pro- 
 vision as to time.^ 
 
 provide a full cargo in a few days. Thompson v. Inglis, 3 Camp. 428. Sec also, 
 Shatlforth v. Higgin, 3 Camp. 385. 
 
 1 Constable v. Cloherie, Palmer, 397; Bornmann v. Tooke, 1 Camp. 377. 
 
 '^ Fothcrgill v. Walton, 8 Taunt. 576. See also, Stavers v. Curling, 3 Bing. N. C. 
 355 ; Dcffell v. Brocklebank, 4 Price, 36; Galloway v. Jackson, 3 Scott, N. R. 753. 
 
 ^ In Glaholm v. Ilays, 2 Man. & G. 257, by the memorandum of charter it was 
 agreed that the vessel should proceed to Trieste, and there load a full cargo, and, being 
 so loaded, should proceed to a ])ort in the United Kingdom, upon payment of freight 
 at a certain rate ; that forty running days should be allowed the merchants for loading 
 at Trieste, and for unloading at the port of discharge; and twelve days on demurrage, 
 the vessel to sail from England on or before the fourth of Fcbruanj next. The vessel did 
 not sail till the twenty-second of that month, being detained by contrarj' winds. The 
 charterer refused to load any goods on board. Hehl, that the sailing on or before the 
 fourth of February was a condition precedent. In Shadforth ;•. Higgin, 3 Canij). 385, 
 the siiip was to go to Jamaica, and the freighter undertook to provide a full cargo in 
 time for the July convoy, provided she arrived out, and was ready by the twenty-fifth 
 of June. Held, tliat her arrival was a condition precedent. In Croockewit r. Fletcher, 
 1 H. & N. 893, 40 Eng. L. & Ecp 415, the defendant pleaded to an action for breach of 
 a charter-party by refusing to take the vessel, tliat the charter-party contained a stipula- 
 tion that the vessel was to sail from Amsterdam to Liverpool on or before the fifteenth 
 of March, and that she did not sail on or before that day. Ileplication, that tlic ship 
 was prevented from sailing by dangers and accidents of the seas and by the act of God. 
 On demurrer the replication was held bad. The charter-party contained this clause : 
 " Restrictions of princes and rulers, the damages and accidents of tlie seas and naviga- 
 tion, the act of God, fire, pirates, and enemies, throughout the charter-party, always 
 excepted." The court held, that, tiiough this might exonerate tlic plaintiti' in the event 
 •of the ship being prevented from sailing on tiie day named by any of the matters ex- 
 cepted, yet it did not aftect the condition precedent upon the performance of which the 
 defendant contracted to take and load the siiii). And a replication that the defendants 
 had repudiated the charter-party before the time of the sailing of the ship, was also 
 held to be bad. Sec also, Brigiit v. Cowj)er, Brownl. 21 ; Tarrabochia v. Hickie, 1 H. 
 & N. 183, 38 Eng. L. & Eq. 339. So, where it was agreed that a vessel sliould be 
 launciicd and ready to receive cargo in all May, guaranteed to sail in all June, and 
 that she should proceed to a certain port and load a full cargo, it was held, that the 
 readiness to receive a cargo in all May, was a condition ])rcecdent to tlie plaintiff's 
 right to recover for not loading a full cargo; and that a ])lea stating that the ship was 
 not ready to receive a cargo in all May was good on general demurrer. Oliver v. 
 Fielden, 4 Exch. 135. See also, cases ante, p. 130, note 2. In Ollive i'. Booker, 1
 
 272 ON THE LAW OF SHIPPING. [book I. 
 
 At common law, this doctrine of dependent and independent 
 covenants sometimes works great hardship, if not injustice. 
 But, as applied to contracts relating to shipping, it is seldom 
 laid down without a distinct and adequate reference to the in- 
 tention of the parties, and the actual justice of the case. 
 Indeed, it may almost be said, that there is a presumj^tion of 
 law, for there is certainly a strong disposition of the courts, 
 against such a construction of a covenant or promise as would 
 make it a condition precedent.^ For it is obvious that the 
 construction which disconnects the promises, and obliges each 
 party to satisfy the other for so much of his promise as he has 
 kept, saying, however, his right to indemnity for any promises 
 which are broken, would, in the vast majority of cases, do jus- 
 tice, and complete justice, to both parties. 
 
 Whenever the courts are called on to construe a mercantile 
 instrument, very great regard is always paid to mercantile usage. 
 But it must always be understood, that, however powerful and 
 important this may be in the interpretation of contracts, it is 
 never suffered to control the express declarations of the parties. 
 The whole influence of usage in the interpretation of contracts, 
 is founded on the reasonable presumption that wherever men act 
 in reference to a subject, in regard to which a distinct and estab- 
 lished usage exists, so well known that they could not have 
 be'en in ignorance of it, they may very fairly be presumed to 
 have made their bargain with reference to that usage ; or, in 
 other words, to have made that usage a part of their bargain. 
 But there is obviously no room for this presumption when the 
 parties expressly declare that they had no reference to this 
 usage ; or when they make express provision for themselves, 
 
 Exch. 416, a statement that a vessel was at sea, having sailed three u-eeJcs previoxs or 
 thereabouts, was held to be a condition precedent. But in Elliot v. Von Glelin, 13 Q. 
 B. 632, where the charter-party contained a representation that the vessel was then at 
 "\Yyburgh, and it turned out that she had just sailed on her voyage from Wyburgh to 
 Hull, it was held, that this was a mere representation and not a warranty. The defendant 
 in this case had made some use of the vessel, by loading part of the cargo, and Erie, 
 J., puts his decision partly on that ground. In another case, where it was covenanted 
 that the ship should sail on or before February 12th, but the charter-partj- was not to 
 take effect till the fifteenth of IMareh, the time of sailing was held not to be a condition 
 pi-eccdent. Hall v. Cazenove, 4 East, 477. 
 1 See cases stqjra.
 
 CH. VIII.] DISSOLUTION OF A CHARTER-PARTY. 273 
 
 incompatible with this usage. And if their express provisions 
 are one with the usage, then there is no need of calling on that, 
 either to interpret or enforce- the written agreement.^ 
 
 SECTION VII. 
 
 OF THE DISSOLUTION OF A CHARTER-PARTY, OR OF ITS OBLIGATIONS. 
 
 All contracts may be dissolved by the parties who make them, 
 if they agree in doing so.^ But they must agree in this ; for as 
 soon as the contract is effectually and legally made, both parties 
 are bound by it; and neither of them can, without the consent 
 of the other, suspend or annul it, simply by giving notice of his 
 intention to do so before the other party has done any thing 
 whatever under the contract.^ 
 
 The contract, however, may be dissolved, or its obligations 
 annulled for the parties, against their will, and by causes extrin- 
 sic to them. Thus it is an universal rule, that if a contract, 
 which is legal when made, becomes illegal before it is executed, it 
 becomes thereby as wholly void as if it were illegal at the outset. 
 
 1 See 2 Parsons on Contracts, 48-59 ; rhillipps v. Briard, 1 11. & X. 21, 37 Eng. L. 
 &Eq. 480 ; and ante, p. 156. But usage is only admitted in tlie case of contracts, and is, 
 therefore, not admissible in eases of general average, for the rigiit to contriliution does 
 not arise from contract, but depends upon a principle of natural justice, that they ■who 
 have received a common benefit from a sacrifice voluntarily made by one engaged in a 
 common adventure should unite to make good the loss wliicli that sacrifice occasioned. 
 Per C»r//.s, J., Sturgis v. Gary, 2 Curtis, C. C. 382. 
 
 -Thus Lord Denman, C. J., in Goss v. Nugent, 5 B. & Ad. 58, said: "After 
 the agreement has been reduced into writing, it is comi)etcnt to the jiarties, at any time 
 before brcJlch of it, by a new contract not in writing, citlier altogether to waive, dis- 
 solve, or annul the former agreement, or in any manner to add to, or subtract from, 
 or vary or qualify the terms of it, and thus to make a new contract; which is to be 
 proved, partly by the written agreement, and partly by the subsequent verbal terms 
 ingrafted upon what will be thus left of the written agreement." See also, King v. 
 Gillett, 7 M. & W. 55 ; Cummings i'. Arnold, 3 Met. 48G ; Buel i-. Miller, 4 N. H. 
 196; Howard i-. Macondray, Sup. Jud. Ct., Mass., Nov. T. 1856. But if the con- 
 tract be under seal, it requires by the rules of the common law an instrument of as 
 high a nature to terminate it. 
 
 8 See Tindal v. Taylor, 4 Ellis & B. 219, 28 Eng. L. & Eq. 210, and cases cited 
 ante, p. 159, note 2.
 
 274 ON THE LAW OF SHIPPING. • [BOOK I. 
 
 And for the same reason, namely, that the law cannot be called 
 on to enforce a violation of itself.^ Thus, if a war be declared by 
 the country to which a ship belongs against one to which it was 
 about to carry a cargo, this war makes all commercial intercourse 
 illegal, and thereby annuls all obligation of carrying that cargo.^ 
 Or if the proper authority of the same country lays an embargo, 
 or passes an act of non-intercourse, or of especial prohibition 
 which extends to that ship and cargo ; here the contract becomes 
 illegal. But war annuls such a contract, while an embargo,^ or 
 
 ^ See 2 Parsons on Contracts, 186. 
 
 2 Ord. de la Marine, liv. 3, tit. 1, Charte-Partie, art. 7 ; Code de Com. art. 276 ; 
 Barker v. Hodgson, 3 M. & S. 267, per Lord EUenhorourjh, C. J. ; Brown v. Delano, 
 12 Mass. 370; Palmer v. Lorillard, 16 Johns. 348; Avery v. Bowden, 5 Ellis & B. 
 714, 33 Eng. L. & Eq. 133, 137, per Lord Campbell, C. J. ; S. C. 6 Ellis & B. 953, 38 
 Eng. L. & Eq. 130 ; Barrick v. Buba, 2 C. B. n. s. 563. See also, Esposito v. Bow- 
 den, 4 Ellis & B. 963, 30 Eng. L. & Eq. 336 ; Reid v. Hoskins, 4 Ellis & B. 979, 30 
 Eng. L. & Eq. 406. See also, same case, 5 Ellis & B. 729, 34 Eng. L. & Eq. 51, 
 affirmed 6 Ellis & B. 953,38 Eng. L. &Eq. 130. In Clemontson v. Blessig, 11 Exch. 
 135, 32 Eng. L. & Eq. 544, war had been declared by England against Kussia, but 
 there was an order of council passed that Russian merchant vessels, in any ports or 
 places in her majesty's dominions should be allowed six weeks for loading their cargoes 
 and departing; and that such Russian merchant vessels, if met at sea by any of her 
 majesty's ships, should be permitted to continue their voyage, if, upon examination of 
 their papers, it should appear that their cargoes were taken on board before the expira- 
 tion of the above period. An order had been sent to the plaintiff in England to ship 
 goods to the defendant in Russia, and the defendant promised in payment of the goods 
 to accept the plaintiffs draft for the price. ' In an action for not accepting, the defend- 
 ant pleaded, that, before the goods were shipped, war was declared, which rendered the 
 contract illegal. The plaintiff filed a replication setting forth the order of council, and 
 averred that the goods were shipped before the expiration of the six weeks. On de- 
 murrer the court held, that the contract was not dissolved by the war. ' 
 
 3 In Odlin v. Ins. Co. of Penn. 2 Wash. C. C. 312, 317, Washington, J., laid down 
 the law as follows : " It is stated, on the part of the underwriters, as a general rule, 
 that where a contract is lawful at the time it is made, and a law afterwards renders a 
 performance unlawful, neither party shall be prejudiced, but the contract shall be con- 
 sidered at an end. This, as a general rule, will not be controverted. But there is an 
 obvious distinction between a law which renders the performance unlawfultiltorjfther, 
 and one which merely suspends the performance, without condemning the subject of the 
 contract. If the trade between this country and any other be Avholly interdicted, or 
 partially so, in relation to particular articles ; or if, after the contract to carry goods 
 from this to that other country, war should break out between them, the suhj(cl-matter 
 of the contract becomes unlawful ; the prohibition acts directh* upon it, and forbids the 
 peiformance. It is no answer, that the prohibition may, upon a change of circum- 
 stances, be removed ; the prohibition defeats the contract, and releases the parties from 
 all its obligations. But, in the case of a temporary restraint upon the performance of 
 the contract, the subject-matter of it is not declared to be unlawful, the trade itself is 
 not condemned, — the legality of it is rather admitted, but it is not permitted to be
 
 en. Vni.] DISSOLUTION OF A CHARTER-PARTY. 275 
 
 prohibition,^ may only suspend it. If the measure is one which 
 may be regarded as intended for a brief period only, and if the 
 voyage may be delayed without material damage, and then re- 
 sumed and completed with no other effect than that of temporary 
 interruption, then we should say that the contract was not dis- 
 solved ; that the ship, on the one hand, was bound to wait with 
 her cargo on board for the opportunity of carrying it to her port 
 of destination ; and on the other, that the ship had the right of 
 insisting upon retaining the cargo for the purpose of thus earning 
 the freight.^ 
 
 performed for the present. Here the rule applies, that, if a law forbids performance 
 of a contract in part only, he who is bound by it must still perform what he lawfully 
 may. In the case of an eml)arfjo, for example, the ship-owner is disabled from com- 
 mencing his voyage at the specified time, but he is bound to go when tlie prohibition is 
 removed." See also, Hadley v. ClaSce, 8 T. R. 259, in which case an embargo of two 
 years was held merely to suspend the contract. In the head note to Bork v. Norton, 2 
 McLean, 422, it is stated that a permanent embargo would excuse the master from the 
 performance of his contract. In the first place no such point was decided in the case ; 
 and, secondly, there is not even a dictum to that effect. The court cited Hadley v. 
 Clarke, and expressed a doubt whether the principle, there laid down, would apply to a 
 contract on the lakes, but expressly said that they did not intend to decide the point. 
 However tiiis may be, it is very clear that an embargo, although of inderiiute duration, 
 merely suspends the performance of the contract. M'Bride v. Mar. Ins. Co. 5 Johns. 
 209, 308 ; Baylies v. Fettyplacc, 7 Mass. 325. It was held, in Touteng v. Hulibard, 3 B. 
 & P. 291, that where a contract of affreightment by charter-party was entered into be- 
 tween an English merchant, and the captain of a Swedish ship, it would be terminated 
 by an embargo laid by the government of Great Britain on Swedish vessels. The 
 general principle of Hadley v. Clarke was fully recognized, but it was held that the 
 embargo was an act of hostility by the government of Great Britain against Sweden, 
 and that a British subject should not be compelled to indemnify a Swede for the con- 
 sequences arising therefrom, because this would defeat the objects of the embargo. 
 Sec also, Conway v. Gray, 10 East, 536 ; Conway v. Forbes, id. 539 ; Maury v. Shed- 
 den, id. 540. Kent, C. J., in M'Bride v. Mar. Ins. Co. itt sup. says the reasonings by 
 which these cases arc supported appears to be drawn from political considerations, 
 rather than from princii)les of law. 
 
 1 Sec lUchardson v. Maine Ins. Co. 6 Mass. 102, 1 II, where the law is stated by Par- 
 sons, C. J., as follows : " When the sovereign of the country, to which the ship belongs, 
 shall prohibit his subjects from trading with a foreign country or port, whether the pro- 
 hibition be a consequence of his declaring war against the foreign country, or be made 
 by an express ordinance for any cause at the will of the sovereign, a voyage to that 
 country for the purpose of trade is illiiit." Sec also. Palmer v. Lorillard, 16 Johns. 348, 
 356. There is no difference in principle between a complete interdiction of commerce, 
 which i)revcnts the entry of the vessel, or a partial one in relation to the merchandise 
 on board, which prevents it being landed. Patron v. Silva, 1 La. 275. 
 
 - Sec cases sitpra. As an embargo merely suspends the contract, so a lowncss of 
 water, which prevents a vessel reaching the port, has the same operation. Schili^zi y.
 
 276 ON THE LAW OF SHIPPING. [bOOK I. 
 
 If the continuance of this restraint and prohibition be not only 
 uncertain, but, as far as can be judged, likely to continue for a 
 long period, so that it would be unreasonable to detain the ship 
 or the cargo in her to wait this distant opportunity; or if the 
 goods are perishable, and cannot probably survive even a short 
 delay without destruction or great diminution of their values, — 
 we should say the contract was now, not suspended, but an- 
 nulled.^ 
 
 So, if there be a blockade of the port in which the vessel is 
 lying, and from which she is to proceed on the proposed voyage, 
 this wo«ld generally only suspend the obligations of the con- 
 tract,'^ but might annul them, if the facts gave rise to reasons 
 
 Derry, 4 Ellis & B. 873, 30 Eng. L. & Eq. 312. This was an action by the charterers 
 of a vessel against the owners for a breach of contract. By the charter-party the de- 
 fendants agreed that the ship should proceed to (Jalatz, or as near thereto as she could 
 safely get, and there load a cargo, perils of the seas, rivers, and navigation excepted. 
 Galatz is a port of Moldavia, on the Kiver Danube, ninety-five miles from the Sulina 
 mouth. On the 5th of November the ship arrived off the mouth of the Danube. At 
 that time, and until the 7th of January following, the water was so low on the bar at 
 the mouth of tlie river that the ship was unable to cross. On the 11th of December 
 she was obliged, by stress of weather, to go to Odessa, as the nearest safe port, where 
 she afterwards took in a cargo and sailed for England. On and after January 7th there 
 was sufficient water on the bar for the ship to have crossed and to have gone to Galatz, 
 and there shipped a cargo. Held, that under these circumstances the defendants were 
 not justified in putting an end to the contract. The reasons upon which this case was 
 decided are fully set forth in the opinion of Lord Campbell, C. J. He said : " With 
 regard to the terms of the charter-party, ' so near the port of loading as the ship could 
 safely get,' the meaning must be that she should get within the ambit of the port, 
 though she may not be able to enter it. It might as well be said, that if the ship had 
 been stopped in the Dardanelles she had got as near Galatz as she safely could. On 
 this issue, therefore, the plaintiffs must have judgment. Then, the next issue is founded 
 on the exception of the dangers of the seas, rivers, and navigation. But this case 
 clearly does not foil M'ithin that exception, for although we must reasonably suppose 
 that up to the 7th of January the ship could not have crossed the bar, yet this was only 
 a temporary impediment, and after that date she might well have crossed, and reached 
 the poit of destination. If so, how or when was the contract dissolved ? .... It was, no 
 doubt, not safe for the ship to keep on and off at the mouth of the Danube, but she 
 might have gone to Odessa or Constantinople, and there have waited until the bar was 
 passable." 
 
 1 See The Isabella Jacobina, 4 Rob. Adm. 77. 
 
 2 Stoughton V. llappalo, 3 S. & R. 559. In this case certain barrels of flour had 
 been shipped on a voyage from Philadelphia to Havana. The same day that the bills 
 of lading were signed and the clearances at the custom-house obtained, a blockade of 
 the Delaware was instituted bj' the British. The master of the vessel refused to de- 
 liver up the flour unless the owner would pay one half freight. It was in proof that 
 the cargo would be very much deteriorated in value, if detained on board till the expi-
 
 CH. YIII.] DISSOLUTION OF A CIIARTER-PAPvTY. 277 
 
 such as applied in the case above supposed of embargo or pro- 
 hibition. But the contract is not determined by the unlawful 
 seizure of the vessel by a stranger.^ 
 
 If a blockade be formally notified to a nation, all the citizens 
 thereof must take notice of it at their peril.^ No ship is bound 
 to enter a port which is actually blockaded.-^ If the blockade be 
 
 ration of the blockade, but the court expressly refused to decide the case on this ground, 
 and to say whether or not, the contract was dissolved. The decision proceeded entirely 
 on the assumption that, as tlie vessel had not broken ground, the master had acquired 
 no lien on the goods for the freight. But this principle is incorrect, for, we have 
 already seen that though prior to breaking ground the master has no lien, strictly 
 speaking, on the goods for the freight, yet he has a right, from the moment they are 
 laden on board, to retain them till the lien is acquired. See ante, p. 128, note 1. We 
 therefore are strongly of the opinion that this case is of no authority in contravention 
 to what we consider now to be the well-established rule of law, namely, that the con- 
 tract is merely suspended. See the learned and elal)oratc opinion of Chancellor Kent, 
 in the Court of Errors, in the case of Palmer v. Lorillard, 16 Johns. 348, overruling 
 the decision of the Supreme Court, in the same case, 1.5 Johns. 14. See also, Ogden 
 V. Barker, 18 Johns. 87 ; Richardson v. Jlaine F. & M. Ins. do. 6 Mass. 102. But if 
 the port of destination is blockaded the contract is thereby dissolved. Scott v. Libby, 
 2 Johns. 3.36 ; The Tutela, 6 Hoi). Adm. 177. 
 
 1 jNIuggridge v. Eveleth, 9 Met. 233. 
 
 " The Neptunus, 2 Rob. Adm. 110; The Bark Coos.a, 1 Ncwb. Adm. 393. This 
 rule has been relaxed to some extent in cases of insurance, and it has been held to be a 
 question of fact for the jurj- to decide whether the parties knew of the blockade. Har- 
 ratt V. Wise, 9 B. & C. 712. See also, Naylor v. Taylor, id. 718 ; ]\Iedeiros v. Hill, 8 
 Bing. 231. There are two kinds of blockade known to the law, a blockade de facto-, 
 and a blockade by notification. In either case there must be an actual blockade, and 
 notice bi-ought home to the party, or facts shown, from which knowledge of the block- 
 ade may be presumed. In the case of a blockade by notification, it will be presumed 
 to continue till public notification of its discontinuance is shown, and the Inmlen of 
 proof is on the captured vessel to overcome this presumption. The Neptunus, 1 Rob. 
 Adm. 170. Though public notification of the existence of a blockade is customary, 
 still private notification is sufficient. The Mercurius, 1 Rob. Adm. 80. It is enough 
 if merely knowledge of the blockade be shown. The Columi)ia, 1 Rob. Adm. 154, 156. 
 Where an enemy's port was declared to be blockaded, and notification thereof was duly 
 made, but, about the same time news was received that the blockading squadron had 
 been driven off by a superior force, it was held that the act of sailing for the port under 
 such circumstances would not amount to a breach of the blockade, but that notice of 
 its being resumed should have been given. Tlie Triheten, 6 Rob. Adm. 65. 
 
 8 Thus Sir William Scott, in the ca.se of The Columbia, 1 Rob. Adm. 154, said: 
 "It is unnecessary for me to observe, that there is no rule of the law of nations more 
 established than this ; that the breach of a blockade subjects the property so employed 
 to confiscation. Among all the contradictory opinions that have been advanced on tiie 
 law of nations, this principle has never been disputed : it is to be found in all books of 
 law, and in all treaties; every man knows it ; the subjects of all States know it, as it 
 is universally acknowledged by all governments who possess any degree of civil knowl- 
 edge." 
 
 VOL. I. 24
 
 278 ON THE LAW OF SHIPPING. [bOOK I. 
 
 only in intention, or by decree, it is only what is called a paper 
 blockade; and it is now settled that it is no breach of the law 
 of nations to enter the port ; and a ship might insist upon its 
 right to go there, and a shipper might insist that the ship should 
 carry his cargo thither.^ But as a ship is bound not to break an 
 actual blockade, and if it does so, is forfeited by the law of 
 nations, so it is not bound to incur any actual and substantial 
 danger, in attempting to do so, if the port be imperfectly bloek- 
 aded.2 Nor has it any right to incur such danger, and jeopardize 
 the cargo, for the purpose of earning its freight. If a vessel is 
 warned off and afterwards returns, this is prima facie evidence 
 of a criminal intention to enter, but this may be rebutted by 
 showing that a stringent necessity was the cause of the return.^ 
 
 1 Grotius, de Jure Bel. ac Pac. lib. iii. cap. 1, § 5, note 3. To justify a condemna- 
 tion for breach of blockade three things must be proved: "1st. The existence of an 
 actual blockade; 2dly. The knowledge of the party; and, 3dly. Some act of violation, 
 either by going in or by coming out with a cargo laden after the commencement of the 
 blockade." Per Sir William Scott, in the case of The Betsey, 1 Bob. Adm. 93. See 
 also, Schacht v. Otter, 9 Moore, Pj C. 150, 33 Eng. L. & Eq. 28; The Brig Nayade, 
 1 Newb. Adm. 366 ; The Bark Coosa, 1 Newb. Adm. 393. This nile, according to a 
 very able writer on international law, has been confirmed by numerous modern treaties, 
 and especially by the convention of 1801, between Great Britain and Russia, which 
 was intended as a final adjustment of the disputed points of maritime law. The third 
 article, section fourth, of this convention declares : " That in order to determine what 
 characterizes a blockaded port, that denomination is given only where there is, by the 
 disposition of the power which attacks it with ships stationaiy, or sufficiently near, an 
 evident danger in entering." Wheaton's ElCm. of International Law, 577. The 
 blockade must be maintained by a force sufficient to prevent vessels going out and 
 coming in. The Nancy, 1 Act. 57. In Naylor v. Taylor, Moody & M. 205, the block- 
 ading squadron was a hundred miles distant from the port. It was held that it might 
 lie at any distance convenient for shutting up the port blockaded, provided it thci-eby 
 obstructed no other. When this case came up on appeal, 9 B. & C. 718, the point 
 does not appear to have been noticed. See also, The Arthur, 1 Dods. 423 ; The Stert, 
 4 Bob. Adm. G5 ; The Frau Ilsabe, id. 63 ; The Luna, Edw. Adm. 190 ; The Juffrow 
 Maria Schroeder, 3 Bob. Adm. 147. 
 
 2 Nor has the vessel a right to enter if the blockading squadron is driven off by acci- 
 dent, as by a storm, or a change of wind. The Neptunus, 1 Rob. Adm. 170, 171 ; The 
 Ercderick Molke, id. 86; The Columbia, id. 154, 156 ; The Hoffnung, 6 Rob. Adm. 112, 
 117 ; The JuftVow iLaria Schroeder, 3 Rob. Adm. 147. The blockade is not terminated 
 by the vessels of the squadron being absent while engaged in chasing suspicious vessels. 
 The Eagle, 1 Act. 65. But this chase must not be pursued to such a distance as to 
 interfere with the maintaining of the blockade. La Melanie, 2 Dods. 122, 130. 
 
 3 The Brig Nayade, 1 Newb. Adm. 366. But the excuse of want of water, which 
 was that made in this case, or the want of provisions, will always be received with great 
 suspicion, and it has been held, that the vessel should, in such a case, seek some other 
 than the blockaded port. The Hurtige Hane, 2 Rob. Adm. 124 ; The Fortuna, 5 Rob.
 
 CH. VIII.] DISSOLUTION OF A CHARTER-PARTY. 279 
 
 And it is no breach of law for a vessel to sail for a port which 
 is known to be blockaded, with the hope of finding the blockade 
 terminated, or with the purpose of waiting, at sea or in a neigh- 
 boring port, until the blockade shall terminate.^ A ship, there- 
 
 Adm. 27. But this rule was held not to apply where there were no open ports near 
 that blockaded. The Brig Nayade, supra. 
 
 1 The Shepherdess, 5 Rob. Adm. 262 ; The Betsey, 1 Bob. Adm. 332 ; The Dis- 
 patch, 1 Act. 163 ; The Little William, 1 Act. 141 ; Naylor v. Taylor, 9 B. & C. 718; 
 Medeiros v. Hill, 8 Bing. 231. The vessel must not, however, proceed immediately to 
 the blockaded port, but the proper course is to stop at some port of the blockading 
 power, for information. See cases cited above. In the case of The Betsey, however, 
 as the property was not disputed, and nothing appeared to affect the owners with a 
 fraudulent intention, the vessel was restored, though information was to have been 
 obtained at the blockading port. Where the blockading force had received orders not 
 to capture a vessel, unless previously warned off, it was held that the master might sail 
 direct for the port, and need not make inquiries elsewhere. Maryland Ins. Co. v. 
 Woods, 6 Cranch, 29. See, however. The Columbia, 1 Bob. Adm. 154. The four 
 cases first above cited are those of American ships seeking a blockaded port in Europe, 
 and for tliis reason the established rule, that sailing to a blockaded port constituted a 
 breach of the blockade, was relaxed in their favor. Thus Sir Wil/iain Scott, in the case 
 of The Betsey, said : "I certainly cannot admit that Americans are to be exempted 
 from the common effect of a notification of a blockade existing in Europe. But I 
 think it is not unfair to saj', that lying at such a distance M'here they cannot have con- 
 stant information of the state of the blockade whether it continues or is relaxed, it is 
 not unnatural that they should send their ships conjecturally, upon the expectation of 
 finding the blockade broken up, after it had existed for a considerable time. A very 
 great disadvantage indeed would be imposed upon them if they were bound rigidly by 
 the rule, which justly obtains in Europe, that the blockade must be conceived to exist, 
 till the revocation of it is actually notified. For, if this rule is rigidly applied, the 
 effect of the blockade would last two months longer upon them than on the trading 
 nations of Europe, by whom intelligence is received almost as soon as it is issued." It 
 may, however, be doubted whether, in case of another war, American vessels would be 
 treated with less severity than vessels of other countries, on account of the facilities of 
 communication afforded by steam navigation, which in those days was unknown. And 
 the ocean telegraph, if it coiitiiuies to exist, will entirely do away with the distinction 
 existing between American vessels and those of any other country; except so far as 
 the same is regulated by treaties. 
 
 When a European port is blockaded, European vessels are not allowed to sail to 
 that port with the intention of not entering if it is not blockaded. The Spes, and The 
 Irene, 5 Bob. Adm. 76; The Posten, 1 Rob. Adm. 335, note. By the treaty of 1794, 
 between Great Britain and the United States, provision was made for the incon- 
 veniences resulting from the distance between the two countries. Thus the eighteenth 
 article declares that, " Whereas it fre(iuently happens that vessels sail for a port or 
 place belonging to an enemy, without knowing that the same is either besieged, block- 
 aded, or invested ; it is agreed that every vessel so circumstanced, may be turned away 
 from such port or ])lace, but she shall not be detained, nor her cargo, if not contraband, 
 be confiscated, unless, after notice, she shall again attempt to enter; but she shall be 
 permitted to go to any other port or place she may think proper." See Fitzsimmons 
 V. Newport Ins. Co. 4 Cranch, 185.
 
 280 ON THE LAW OF SHIPPING. [BOOK I. 
 
 fore, may do this. But we should doubt whether a ship would 
 have a right to insist upon carrying a cargo to a blockaded port 
 for such a purpose, or whether a shipper could insist that his 
 cargo should be carried, unless the facts were such as showed 
 clearly that the blockade would continue only for a short tinie, 
 and that the sailing on such a voyage for such a purpose was 
 clearly reasonable and prudent. 
 
 These remarks apply to the case where the blockade becomes 
 known after the contract of affreightment is made. If the par- 
 ties, knowing the blockade, choose to agree that the ship shall 
 go to the port, or near it, and wait for the opportunity of going 
 in, they may hold each other to the contract, for it is not illegal 
 in itself^ And although no ship is bound to enter a port actually 
 blockaded, but is indeed bound not to enter it, yet if war breaks 
 out between other countries, which renders the prosecution of 
 the voyage more or less dangerous, this danger, in general, 
 neither dissolves nor suspends the contract.^ Perhaps it would 
 have that effect if it became imminent and extreme, so as to 
 make the execution of the contract involve the certain, or even 
 the probable, loss of ship and cargo. 
 
 If a ship and cargo be captured, and afterwards restored to 
 the master and owner, such capture merely suspends the con- 
 tract; unless the length of the detention, or other circumstances 
 
 1 Thus Tindal, C. J., in Medciros v. Hill, 8 Bing. 231, said: " The contracting par- 
 ties must be taken to have entered into the charter-party with an equal knowledge of its 
 existence; no difficulty, therefore, attending the performance of the contract can be 
 «et up as an excuse for its non-performance. In that case the rule of law laid down in 
 Paradine v. Jane, Aleyn, 26, applies, namely, ' That when a party by his own con- 
 tract creates a duty or charge upon himself, he is bound to make it good, if he may, 
 notwithstanding any accident by inevitable necessity, because he might have provided 
 against it by his contract.' " See also, Naylor v. Taylor, 9 B. & C. 718. 
 
 3 Avery v. Bowden, 5 Ellis .Sb B. 714, 33 Eng. L. & Eq. 133. In this case a char- 
 ter-party was entered into between two British subjects, by which the ship was to pro- 
 ceed to Constantinople, and thence to Odessa, where she was to take in a cargo at a 
 stipulated rate of freight, and bring the same home. " In case of war having commenced 
 previous to and continuing on the ship's arrival at Constantinople," the charterer was 
 to load the ship at that port at a reduced rate of freight. It Avas held that this clause 
 meant such a war as would render the voyage of an English ship from Constantinople 
 to Odessa unlawful, and which, without the clause, would have dissolved the contract; 
 and that the plaintiff was not entitled therefore to a cargo at Constantinople, though a 
 war between Turkey and Russia had broken out previous to, and continued after the 
 arrival of the vessel at that port. Affirmed, 6 Ellis & B. 953, 38 Eng. L. & Eq. 
 130.
 
 CH. VIII.] DISSOLUTION OF A CHARTER-PARTY. 281 
 
 connected with it, caused the voyage to be broken up with- 
 out the fault of either party ; for this would be considered an 
 actual dissolution of the contract.^ The charter-party gen- 
 erally provides that the owners will not be responsible for a loss 
 arising from the perils of the seas, and it has been held that 
 they would not be liable for such a loss, were the clause omit- 
 ted.2 And the plaintiff is not obliged to negative the exception 
 in his declaration, but the defendant, if he wishes to avail him- 
 self of it, must plead it.-^ It is sometimes provided that the 
 
 1 It seems to have been held by the courts of admiralty in England, that the capture 
 of the vessel and the unlivery of the cargo, terminate the contract of aifreiphtment. 
 The Racehorse, 3 Rob. Adm. 101 ; The Martha, 3 Rob. Adm. 106, note ; The Iloff- 
 nung, 6 Rob. Adm. 231. See also, The Louisa, 1 Dods. 317; The Wilelmina El- 
 eonora, 3 Rob. Adm. 234. See however, the judgment of the court in Beale v. 
 Thompson, 3 B. & P. 405, 428 ; Bergstrom v. Mills, 3 Esp. 36 ; Moorsom i-. Greaves, 
 2 Camp. f>27. In The Nathaniel Hooper, 3 Sumner, 542, 556, Mr. Justice Stoiy made 
 an elaborate review of tlie cases decided in the English admiralty, and held that they 
 could not be considered as authority here. He said : "In the first place it is an inad- 
 missible assumption, that the capture dissolved the contract of affreightment. At most, 
 it only suspended it ; and it reattached upon the recapture. Recapture confers a title to 
 salvage only, and restores, and does not extinguish, the rights of neutrals, and, a for- 
 tiori, not the rights of fellow subjects upon the admitted principles of the British laws." 
 And again, p. 559, " In my humble judgment, it would be a most mischievous doctrine 
 to the great interests of commerce and navigation, that a mere unlivery of cargo by 
 superior force, or by the order of a court of prize, should operate to dissolve a contract 
 made between mere neutrals. How is it ih relation to other cases, arising in the com- 
 mon course of navigation? Suppose a ship meets with a calamity in the course of a 
 voyage, and is compelled to put into a port to repair, and there the cargo is required to 
 be unlivercd, in order to make the repairs, or to insure its safety, or ascertain and re- 
 pair the damage done to it ; would such an unlivery dissolve the contract for the voy- 
 age? Certainly not." See also, Spafford v. Dodge, 14 Mass. 6G. 
 
 2 The Casco, Davcis, 184. In this case, Ware, J., said: "It is usual in charter- 
 parties of affreightment, as well as in bills of lading, to insert a clause specially ex- 
 empting the master and owners from losses occasioned by the dangers of the seas. 
 This instrument contains no such exception, but this as was justly contended in the 
 argument for the respondents, is an exception, which the law itself silently supplies 
 ■without its being formally expressed. It is a general rule of law, founded upon the 
 plainest and most obvious principles of natural justice, tliat no man shall be held 
 responsible for fortuitous events and accidents of major force, such as human sagacity 
 cannot foresee, nor human prudence provide against, unless he expressly agrees to 
 take these risks upon himself." It may, however, be doubted wliethcr the carrier by 
 omitting to insert the exception in his contract, diil not thereby assume a risk similar 
 to that of an insurer. See ante, p. 178, note. But in Ames v. Bcldcn, 17 Barb. 513, 
 the charterer stii)ulated to return the vessel in as good a condition as she was then in, 
 ordinary use aiul tear excepted. It was held that if the vessel was lost by an act of 
 God, or by a peril of the sea, he was not lialile. 
 
 8 Wheeler v. Bavidge, 9 Exch. 068, 25 Eng. L. &, Eq. 541. 
 
 24*
 
 282 ON THE LAW OF SHIPPING. [BOOK I. 
 
 voyage shall terminate on the vessel's entering a certain port, 
 and what constitutes such entry depends in a great measure on 
 the intention of the parties, and is a question for the jury in 
 every case.^ 
 
 Many questions have arisen in respect to stipulations in char- 
 ter-parties concerning the " sailing " of the vessel, or her " depar- 
 ture" from a certain place. We shall treat of the meaning of 
 these phrases in the second volume, as tliey most frequently 
 occur in contracts of insurance. Where a risk is excepted " dur- 
 ing the voyage," it would seem that the exception is effective 
 only while the ship is out of port, and is not in force during 
 the loading.^ If it is stipulated that a vessel shall proceed to a 
 
 ^ In Goddard v. Bulow, 1 Nott & McC. 45, the charter-party stipulated that the cap- 
 tain was to proceed directly on his voyage to the port of Lisbon, but if Lisbon was in 
 possession of the French, then the vessel was to proceed to Fayal and tliere discharge 
 her cargo, and no additional freight was to be paid, but if the freightei"s ordered the 
 vessel to Fayal when she could discharge her cargo at Lisbon, then additional freight 
 was to be paid. At the bottom of the charter-party was tlie following note : " It is 
 clearly understood and agreed to by the parties that if the said ship enters the port of 
 Lisbon, she shall there discharge her cargo and the voyage end and determine." Held 
 that the supercargo was justified in going to Lisbon to obtain tlie information necessary 
 to enable him to exercise his discretion, and that it was a question for the jury whether 
 he entered for the purpose of terminating the voyage or discharging the cargo, or 
 whether it was for the purpose of information. 
 
 * In Crow V. Falk, 8 Q. B. 467, it was agreed by charter-party that a ship then at 
 Liverpool should be got ready, and should receive and load from the charterer's agents 
 a full cargo, and being so loaded should proceed to Stettin, and deliver the same and 
 60 end the voyage, restraints of princes, etc., during the said voyage always mutually 
 excepted. Held, that the exception as to restraints of princes, etc., was applicable 
 only after the ship quitted Liverpool. But in the subsequent case of Bruce v. Nicol- 
 opulo, 11 Exch. 129, 32 Eng. L. & Eq. 609, the charter-party provided that the vessel 
 after discharging her outward cargo for the owner's benefit, was to proceed to Galatz, 
 or Ibraila, as ordered at Constantinople, or Sulina, by the charterer's agents, and there 
 load a cargo of corn, and thei-ewith proceed homewards and discharge at a port in the 
 United Kingdom, and so end the voyage, restraints of princes and rulers, the dangers 
 of tli8 seas, etc., during the said voyage excepted. Held that the voyage commenced 
 from the period of the discharge of the outward cargo, and a plea that the vessel while 
 at Ibraila was prevented from loading by the ruler of the country wherein Ibraila is 
 situated was held good. Pollock, C. B., said; "If the facts in Crow v. Falk be cor- 
 rectly stated in the report, I cannot subscribe to that case." Martin, B., "Assuming 
 the case of Crow v. Falk to be good law, I am of opinion that this case is distinguish- 
 able from it. Here the vessel, after discharging her outward cargo, was to proceed to 
 Galatz or Ibraila, as ordered I)y the charterer's agents, and I am of opinion that the 
 particular voyage commenced at that time, and, consequently, that the exception as to 
 the restraint of princes and rulers existed from the time of the discharge of the out- 
 ward-bound cargo, until the completion of the voyage at a port in the United King- 
 dom." But see Hurst v. Usborne, 18 C B. 144, 36 Eng. L. &. Eq. 299, 303.
 
 CH. VIII.] DISSOLUTION OF A CHARTER-PARTY. 283 
 
 place "with all convenient speed," this means that she shall 
 proceed there in a reasonable time, and evidence that she did not 
 arrive till after the expiration of the season for exporting the 
 articles she was to have carried, is inadmissible to show whether 
 she arrived in a reasonable tirae.^ Where goods were shipped to 
 any port or ports on the continent with permission to take them 
 to England in case all the ports on the continent should be 
 shut, it was held that the word shut meant an occlusion by the 
 municipal authorities of the country, and that the jury could 
 not determine whether or not it was expedient to land the goods 
 on the continent.^ 
 
 If the charter-party contains a clause whereby the goods and 
 vessel are respectively bound in a penal sum, it has been held 
 that such penalty is merely in addition to any other remedy pro- 
 vided for in the covenants, and not a limitation of the liability 
 of the parties.^ 
 
 1 Hurst V. Usborne, 18 0. B. 144, 36 Eng. L. & Eq. 299, 303. 
 
 2 Mactier v. Wirgman, 4 Harris & J. 568. 
 
 8 Knight V. Cargo of Bark Salem, U. S. D. C, Mass., 20 Law Reporter, 669, in 
 accordance with the common law doctrine as hiid down in Harrison v. Wright, 13 
 East, 343. But this point was decided the other way in an early case. Campbell v. 
 Ship Alknomac, Bee, Adm. 124, 127.
 
 284 ON THE LAW OF SniPPING. [bOOK I. 
 
 CHAPTER IX. 
 
 ON GENERAL AVERAGE. 
 
 SECTION I. 
 
 OF THE ORIGIN AND FOUNDATION OF THE LAW OP GENERAL AVERAGE. 
 
 General average, particular average, and partial loss, are all 
 of them phrases in common use, and their meanings should be 
 carefully discriminated. A general average loss is one which is 
 made to fall upon all the interests at risk and saved by being 
 averaged upon all. Partial loss, is a loss of a part which does 
 not give rise to any claim for contribution, but rests where it 
 falls. Particular average is used generally, as synonymous with 
 partial loss, and instead of that phrase. But this, we think, is 
 not quite accurate. First, because a partial loss is precisely a loss 
 which gives rise to no average at all, and the phrase should not 
 be used, because there is no element of an average in a partial 
 loss.^ And secondly, because there may be such a thing as a 
 
 1 Abbott, in his treatise on Shipping, p. 473, speaks of particular average as a very 
 incorrect expression, used to denote every kind of partial loss or damage happening 
 either to the ship or cargo from any cause whatever. This use of the expression is 
 defended in Maude & Pollock on Shipping, p. 189, on the ground that average means 
 merely damage, and therefore particular average means the same as partial damage, or 
 loss. See also, Nimick v. Holmes, 25 Penn. State, 366, per Loiirie, J. We do not 
 propose to go into a discussion of the primitive meaning, or etymology of the word, 
 but merely say that it is impossible to ascertain it with anj^ degree of certainty. See 
 Emerig. on Ins. ch. XII. sect, xxxix. § 4, Meredith's ed. 465. The curious reader 
 will find the question discussed in Pardessus Cours de Droit Com. part. iii. tit. iv. ch. 
 4 ; Ord. de la Mar. 577 ; Pothier on Maritime Contracts, by Gushing, 59 ; Loccenius,
 
 en. IX.] ORIGIN AND FOUNDATION OF GENERAL AVERAGE. 285 
 
 particular average. For this would occur, when there is a peril 
 involving certain interests or property, but not all, and a part of 
 the property is sacrificed to save the rest that is in peril, and 
 all of what is saved of the imperilled part of the property, 
 should contribute by way of average. Such a case as this is 
 certainly not improbable, and although it might be called a case 
 of general average limited to the things in peril, the term partic- 
 ular average might be applied to it far more correctly than to a 
 partial loss.^ 
 
 tie Jure Maritimo, lib. II. ch. viii. § 1 ; Molloy, Book II. ch. vi. § 4 ; Miliar on Ins. 
 334 ; Weskett on Ins. 25 ; 2 Marshall on Ins. 334 ; Stevens & Bcnecke on Average, 
 by Phillips, pp. 56, 96. But, admitting that average means damage, we are unable to 
 Bee why particular average and partial loss should be synonymous terms, any more 
 than general average and total loss. 
 
 1 See Whitteridge v. Norris, 6 Mass. 125. In this case a vessel, while proceeding 
 up the river Hoogly, struck the ground, and being expected to bilge, the boats were 
 hoisted out and some kegs of dollars were put into the long boat, together with some 
 provisions and clothing. The boat being overladen it was necessary to throw six of 
 the kegs overboard, among which was one belonging to the plaintiff. The boat and 
 the rest of the kegs reached the shore in safety. The vessel was also saved with the 
 remaining cargo. The plaintiff sought to charge the ship and cargo generally for a 
 general average contribution, or, i this should not be allowed, then the articles saved 
 in the long boat. The court held that the ship and cargo were not liable, because the 
 goods were not put in the boats with the intention of saving the ship or the remaining 
 cargo. In regard to the other point the court said : " As to the few articles of the 
 cargo which were brought to the shore in the long boat, these were preserved at the 
 expense of the plaintiff in some measure. But it is to be considered, that tlie goods 
 saved in the long boat, and the goods lost in the jettison from it, were thus exposed 
 together, in consequence of a previous peril, and for the purpose of saving what could 
 be saved, without any concert or mutual design of the parties interested. There was 
 no engagement, or common benefit intended, from which the rights and duties of the 
 respective owners can be inferred. The passengers, as the people in the long boat may 
 be called, were justified in lightening the boat, upon which they depended for the safety 
 of their lives. (Mouse's case, 12 Coke, 63.) The goods thrown out, for every pur- 
 pose of this inquiry, and as to the rights and duties of the particular owners or 
 freighters, were in no other situation than that of the goods left in the ship. If the 
 ship had perished, the event had been precisely the same. If the goods lost in the jet- 
 tison from the long boat had been left in the ship, the danger from overloading the 
 boat would not have been incurred ; and the eventful safety of the ship, and the loss of 
 the plaintiffs keg of dollars, in attempting to save them, without any regard to the 
 safety of the ship, or of the other effects taken together into the long boat, afford no 
 case of contribution or average." This reasoning does not seem to us to be altogether 
 satisfactory. If the suggestion, thrown out on the authority of Mouse's case, be fol- 
 lowed, there can be no such thing as general average. In regard to the other branch 
 of the argument that the boat would not have been overloaded if the goods, which 
 were jettisoned, had not been jiut on board, we have only {o say, that it was not sliown 
 which goods were put ia the boat first, and consequently the goods saved might have
 
 286 ON THE LAW OF SHIPPING. [BOOK I. 
 
 The law of general average rests upon reasons which are so 
 obvious, and so certainly just, that it is not surprising to fnid 
 that it is older than any other law or rale now in force. We 
 have already seen that it was found in the code of Rhodes ; and 
 is, indeed, probably, the only part of that code which has been 
 certainly preserved.^ And it owes this distinction to the fact 
 that it was incorporated into the Roman civil law.^ We have 
 seen that by this provision, property jettisoned to save other 
 property, was contributed for by the property saved. This is the 
 foundation of the law of general average ; and all beside this 
 consists only of the rules which have been devised to carry this 
 principle into its proper effect, in the great variety of cases, and 
 through the many consequences, which belong to its applica- 
 tion. 
 
 The justice of the rule is perfectly obvious at first sight. 
 Indeed, any attempt to illustrate the justice of requiring that 
 property which has been saved by the sacrifice of other property 
 for that purpose, should compensate the holder of the property 
 sacrificed, would only obscure what must be perfectly manifest 
 at the first intuition. But all the reasons for the rule are not so 
 obvious. There are many and of much weight, drawn from 
 expediency, in addition to those which may be said to have a 
 moral origin and aspect. 
 
 Let us suppose a ship laboring in a tempest and threatened 
 with wreck. It is necessary to lighten her, and if that be done 
 there is a probability that she will escape with the remainder 
 of her cargo. The question would arise at once, whose property 
 shall be sacrificed ? Most probably, in such an emergency, the 
 
 been the cause of the loss equally with the others, and also that the danger did not 
 occur till the boat was nearing the shore. But for the high autliority of tlie court 
 which decided this case, we should be strongly inclined to say that the goods saved 
 should have contributed for those lost, as the latter were jettisoned for their benefit, 
 and were thereby the means of their being saved. And, had this been the decision, the 
 case would have afforded a good example of the distinction between general and par- 
 ticular average. 
 
 1 See ante, p. 6. 
 
 " Dig. 14, 2. Probably the earliest English case on the subject is Hicks i\ Paling- 
 ton, 32 Eliz.,r. Moore, 297. It must have been introduced into English jurisprudence 
 at a very early date, for in 1285, Edward I. sent to the Cinque Ports letters patent de- 
 claring what goods were liable to contribution. See I Evmer Ecedera, 3d ed. p. 
 240.
 
 en. IX.] ORIGIN AND FOUNDATION OF GENERAL AVERAGE. 2S7 
 
 goods which could be most easily reached, would be thrown over; 
 or those which, having the most weight in the least bulk, would 
 most effectually and speedily relieve the ship. This might 
 always be expected, and might perhaps become the rule. And 
 the inconvenience and embarrassment which would ensue are 
 obvious. At the lading of the ship, the different shippers would 
 be. contending each to place his goods as far as possible from 
 this mischance. And it might be that the master or officers 
 would be paid by one or another to save his property in case of 
 peril ; or the master, whether innocent or not, might often be 
 suspected of unfair selection. To prevent every thing of this 
 kind efl'ectually, the rule of general average contribution is 
 always applied ; and also to equalize the loss and spread it over a 
 wide surface, which is another result that the law-merchant 
 desires. The effect of this rule is, that whatever is sacrificed, 
 becomes by being sacrificed, the property, and the loss, equally, 
 of all who are benefited by it. And in order that this rule 
 should have this effect, it is obvious that it must be so applied, 
 that if A's goods are jettisoned and B's saved, A shall lose as 
 much and save as much, and B shall lose as much and save as 
 much, as if B's goods had been jettisoned and A's saved. 
 
 It follows from this that the owner of the goods sacrificed is 
 not repaid their full value, for then he would be in a better posi- 
 tion than they who pay him. But he must be paid so much 
 only as will leave his proportion of loss the same as theirs.^ 
 Thus if a ship be worth $20,000, the freight, $10,000, the 
 cargo, $70,000, of which A owns $30,000, B $20,000, and C 
 $20,000. There is a jettison of A's goods to the amount 
 of $10,000, which saves all the rest. To ascertain the amount 
 due to him from tiic other parties, first, the whole property at 
 risk and saved by the jettison is added together, and in the 
 above case it amounts to $100,000. The amount lost is ten per 
 cent, of this. Therefore everybody must lose ten per cent. 
 The ship pays A $2,000, the freight pays him $1,000, B pays 
 him $2,000, C pays him $2,000; and these payments amount 
 to $7,000, and he thus remains a loser of $3,0D0, which is ten 
 
 1 Simonds v. "White, 2 B. & C. 805 ; Lee v. Grinncll, 5 Diicr, 400, 431 ; Abbott on 
 Sliiiipiiig, 506; Pothicr on Muritimc Contracts, n. 123, Cushing's cd. p. 70.
 
 288 ON THE LAW OF SHIPPING. [bOOK I. 
 
 per cent, on his property, or the same percentage which the 
 others lose by their contributions to him. A case so simple as 
 this seldom occurs in practice; but dtll cases are settled upon 
 this principle, for the obvious reason that no other would divide 
 the whole loss ratably among all those who should sustain it. 
 
 From what we have already said, it may be seen that there 
 are three essentials, without all of which there can be no claim 
 for general average. First, the sacrifice must be voluntary; 
 second, it must be necessary ; third, it must be successful. Or, 
 as it is sometimes put, there must be a common danger, a volun- 
 tary loss, and a saving of the imperilled property by that loss.^ 
 
 SECTION II. 
 
 THAT THERE MUST BE A VOLUNTAEY SACRIFICE OF PROPERTY FOR 
 THE BENEFIT OF OTHER PROPERTY. 
 
 If the sacrifice or loss be not voluntary, the very foundation 
 of the claim is taken away, as that is the right which he, who 
 inflicts upon himself a loss for the benefit of another, has to com- 
 pensation. It must be necessary, or justified by reasonable 
 cause, for, if it be not, it is only the wanton destruction of prop- 
 erty by those who are in charge of it, and they or their em- 
 ployers must respond to the full value of what is lost. It must 
 be successful, for if it does not save other property or interests, 
 there is, in the first place, no sacrifice, as it may be presumed 
 that the property jettisoned would have been lost with the rest; 
 and, in the next place, if no one is benefited by the sacrifice, no 
 
 1 Barnard v. Adams, 10 Hovr. 270, 303; Nimick v. Holmes, 25 Pcnn. State, 366. 
 In Barnard r. Adams, Mr. Justice Griei- said : " In order to constitute a case for 
 general average, three things must concur: 1st. A common danger; a danger in 
 which ship, cargo, and crew all participate; a danger imminent and apparently 'inevi- 
 table,' except by voluntarily incurring the loss of a portion of the whole to save the 
 remainder. 2d. There must be a voluntary jettison, jacttis, or casting away, of some 
 portion of tlie joint concern for the purpose of avoiding this imminent peril, pericuU 
 immiiiciitis cvitandi causa, or, in other words, a transfer of the peril from the wliole tcT a 
 particular portion of the whole. 3d. This attempt to avoid the imminent common 
 peril must be successful." See also, Sturgess v. Gary, 2 Curtis, C. C 59, 66.
 
 en. IX.] VOLUNTAKY SACRIFICE OF PROPERTY. 289 
 
 one can be called on to contribute a portion of what was saved 
 for him, in order to make the loss equal. These three essentials 
 we shall now consider separately. 
 
 In the first place there must be a voluntary sacrifice. 
 
 The most usual form of this is a jettison of cargo to lighten 
 the ship. There are, however, many others. If the masts are 
 cut away to relieve the ship, and with the sails and rigging are 
 lost, this is a kind of jettison of them.^ So, if a boat is cut 
 away from the davits ; but if it was its position on the stern or 
 side davits which incumbered the ship, and made it necessary to 
 cut it adrift, and it should not have been in this position, this 
 loss gives no claim, for although voluntary in one sense, yet it 
 arose from the fault of the ship-owner or master. This has been 
 a somewhat disputed question ; but a ship must have its boats, 
 and they must be somewhere, and if they are where they ought 
 to be and are then cast off to relieve the ship, the case is pre- 
 cisely the same on principle as if the masts were cut away.^ 
 So, too, the loss of the anchor and cable, or either, by cutting 
 the cable to avoid impending peril, gives a claim for contribu- 
 tion."'^ 
 
 1 "Walker v. United States Ins. Co. 1.1 S. & H. 61 ; Sims v. Gurncy, 4 Binn. 513, 525 ; 
 Potter V. Providence Washington Ins. Co. 4 Mason, 298 ; Greclv v. Trcmont Ins. Co. 
 9 Cush. 415. Sec also, Scuddcr v. Bradford, 14 Pick. 13. If the masts arc ou fire 
 and are cut away to save the ship and cargo, assuming that they are of value at the 
 time they arc cut, and the vessel is thereby saved, is this a case of contribution 1 This 
 question was raised but not decided in the case of Lee v. Grinncll, 5 Duer, 400, 411. 
 The reasons why they should not be contributed for arc thus stated by Mr. Justice 
 Duer : " The cutting away, so far from being a sacrifice of the masts and spars, was a 
 measure for their preservation. So far from destroying any value which they then had, 
 it was tlie only means by which any part of their original value could be restored aud 
 saved." 
 
 '■^ Benecke & Stevens on Av. (l'iiillii)s' cd.), p. G7, 3G9 ; Lenox v. United Ins. Co. 3 
 Johns. Cas. 178; Hall v. Ocean Ins. Co. 21 Pick. 472. 
 
 ^ Walker r. United States Ins. Co. 11 S. & II. Gl. In Birklcy v. Prcsgrave, 1 East, 
 220, tlie vessel, while entering Sunderland liarbor, was struck by a squall, whidi pre- 
 vented her from proceeding furtlier ; and tlie small bower anchor was let go to bring 
 her up. The vessel was tlien allowed to run along-side of a pier, and was fastened to 
 it by the j)ropcr rojies, whicii were usually employed for that service. The master, 
 seeing another ship drifting towards liis own, and being apprehensive, that, if she struck, 
 the ropes already used would not l)e sufficient to Iiold liis vessel, cut the cable from the 
 best bower anchor, and, while fastening iiis vessel to the wharf, with the cable so cut 
 off, tlie other ship struck bis, the ropes I)roke, and if there had been a moment's delay 
 in thus using the cable the ship would liave gone adrift, and probably struck ou a bar, 
 and have foundered. As it was, the cable saved her. It was held, that the damage 
 
 ^VOL. I. 25
 
 290 ON THE LAW OF SHIPPING. [BOOK I. 
 
 If the vessel was obliged to anchor in an unusually dangerous 
 place, to avoid a worse danger, or upon a rocky bottom 
 which threatened to chafe or cut the cable, or catch and 
 break the anchor, and in this way either or both were lost, it 
 might be a difficult question — of fact, however, rather than 
 law — whether this was an average loss. The question would 
 be, was it a voluntary sacrifice, or only an exposure to one 
 of those sea perils which the ship must encounter whenever they 
 occur, and which would bring this loss rather within the descrip- 
 tion of loss by wear and tear, than of voluntary sacrifice. It is 
 obvious that this must depend on the circumstances of the case. 
 "We should say, however, that a loss of this kind should not be 
 considered as voluntary, and, therefore, should not be regarded 
 as an average loss, unless the anchoring in that place or way 
 was unusual and unnecessary, except for the purpose of saving 
 the cargo from some peculiar peril, and, but for this purpose, 
 would not have been done.^ 
 
 So, if the bulwarks or stanchions or bulkheads or decks of 
 the ship are cut away for the purpose of saving the goods, this 
 would be an average loss,^ unless, the ship being ultimately lost, 
 nothing additional was lost by the previous injury, or unless this 
 injury was made necessary by the fault of the ship or of the 
 lading. 
 
 There is one kind of sacrifice, the effect of which has been 
 so much discussed, and it is generally said that the law is un- 
 settled or uncertain in respect to it. We refer to the voluntary 
 
 done to the cable by cutting it and by the wear, shoukl be contributed for in general 
 average, because it was used in an extraordinary manner. See Ord. de la Mar. liv. iii. 
 tit. vii., Des Avaries, art. 6. 
 
 1 A case of this kind is mentioned by Mr. Phillips, in his Treatise on Insurance 
 (vol. 2, § 1285), as having been decided by referees in Boston, he being one of them. 
 " A vessel lying in Funclial Roads was driven in a gale, and dragged her anchor nearly 
 a mile, until she brought up, at a short distance from a rocky shore. After the gale 
 had abated in some degree, but while it still continued with very considerable violence, 
 the sea, at the same time, setting towards the shore, the master attempted to raise the 
 anchor for the purpose of removing to a more safe anchoring ground. It was, how- 
 ever, found to be impracticable to raise it, and to avoid the danger of the situa- 
 tion, — since, in case of the anchor's dragging, or the cable's parting, the vessel would 
 have gone upon the rocks," — he cut his cable. Tlie loss of the cable and anchor was 
 considered to be the subject of contribution, and the whole value allowed, because it 
 was thouglit that in favorable weather, when the vessel could, without any immediate 
 danger, have remained in her situation, the anchor might have been recovered." 
 
 2 Dig. 14, 2, 2, 3; Kelson v. Belmont, 5 Duer, 310.
 
 CH. IX.] VOLUNTARY SACRIFICE OF PROPERTY. 291 
 
 stranding of a ship. But we cannot see why the law on this 
 subject is not entirely plain and certain, although it may be dif- 
 ficult to apply it accurately in many cases. 
 
 We should state the rule of law thus : If a ship must inevi- 
 tably be cast upon a shore, and all that the master does is to 
 select a place, a time, and a mode of stranding, this is not a 
 voluntary sacrifice, and, therefore, not an average loss. But if 
 the master has a substantial and valuable chance of saving his 
 ship, although this chance may not amount to a probability, and 
 voluntarily throws this chance away in order to make sure of 
 saving his cargo, the cargo must contribute to repay the loss. 
 We cannot doubt that this must be the rule, although, as we 
 have said, it may often be difficult to know on which side of the 
 rule a case falls.^ 
 
 1 The two questions, which have given rise to the most discussion, when a claim for 
 average has heen made, for the benefit of a ship, which has been voluntarily stranded, 
 are, 1st. What is to be considered as a voluntary stranding? and, 2d. Do the ship- 
 owners have a claim for average, if, by tlie voluntary stranding, the vessel is totally 
 lost? The earliest case on the first point is Sims v. Gurnej-, 4 Binn. 513.* The vessel 
 would have gone ashore at any rate, and jirobably on a certain part of the coast. The 
 master directed her course to anotlier place, which was in no degree better calculated 
 either for the safety of the ship, or of the cargo. Yet this was held to be a case for a 
 general average contribution. The correctness of the doctrine laid down in this case 
 we feel compelled to d^fct. We are unable to see, if no advantage is to be derived 
 from an act, how it can be said to be done for the benefit of any of the parties interested. 
 It is true, that Mr. Justice Gricr, in Barnard v. Adams, 10 How. 270, 302, speaks of 
 this case, among others, as having received the " uncjualified assent," and the " unani- 
 mous approval," of the Supreme Court of the United States, yet it is evident that it is 
 to be considered as confirmed only so far as the facts of the case in the Supreme Court 
 rendered it an authority. And we shall see that it goes far beyond even Barnard v. 
 Adams. In Col. Ins. Co. v. Ashby, 13 Pet. 331, the jury found that the stranding 
 was voluntary, and tlie point in question was not discussed by the court. Yet this 
 case is often cited as one in wliich the court held, on the facts, that there was a volun- 
 tary stranding. In Meech v. Ilobinson, 4 Whart. 360, the vessel must have gone 
 ashore at any rate, and would inevitably have been lost, together with the crew and 
 cargo. She was run ashore in a less dangerous place, and was totally lost, but the 
 lives of the crew, together with a jjortion of tlie cargo, were saved. It was held, that 
 this was not a case for a general average contribution. Walker v. United States Ins. 
 Co. 11 S. & K. Gl, has been supposed to confirm tliis case, but the distinction between 
 them is very obvious. In tiiis latter case the court held, as a matter of fact, that when 
 the captain slipped his cables, it did not appear that it was his intention to run liis 
 vessel ashore, but rather to get her out to sea, and, failing in this, he was driven on 
 shore against his will. Jleech v. Robinson has, however, been overruled liy Barnard 
 I'. Adams. In this case the vessel was drifting, in a gale, towards a rocky and danger- 
 ous part of the coast, on which, if she had struck, she must inevitably have perished.
 
 292 ON THE LAW OF SEIPPING. [UOOK I. 
 
 If the stranding be accidental, it may be followed by expensive 
 and successful endeavors for saving the property or some part of 
 
 together ^Tith the crew and cargo. To avoid this peril, she was steered along the coast 
 arid finally run on a beach, and all the cargo saved. This was held to he a case of 
 general average contribution. The vessel was not destroyed, but she was so high on 
 the beach that it would have cost more to have got her off than she would have been 
 worth when off. A somewhat similar case came before the Circuit Court for the First 
 Circuit in 1854. Sturgess v. Cary, 2 Curtis, C. C. 59. The vessel was at anchor, but 
 in imminent danger of going to pieces by being driven on a rocky shore, by the vio- 
 lence of the wind and sea. To save tlie cargo and the lives of the crew, she was run 
 on a beach. Contrary to expectation the vessel was not lost, but was subsequently got 
 off and repaired. For the expenses thereby incurred, the owners of the cargo were 
 held liable to contribute. Sec also, Reynolds v. Ocean Ins. Co. 22 Pick. 191, 197. Let 
 us now pass to the consideration of the second question, whether there is to be contribu- 
 tion if the vessel is, by the stranding, totally lost. On this point there is a slight con- 
 flict of authorities, but the law may now be considered as well settled. Emerigon, ch. 
 xii. § xli. (Meredith's ed. 475),lfe.tes the law as follows: "Damages occasioned bj- 
 stranding arc particular averages for account of the owners. But it would be general 
 average if the stranding had been voluntarily effected for the common safety, as we 
 have seen above, provided always, thOit the vessel has been set afloat again ; for if the 
 stranding isfolloived htj a shipivreck it is saiive qui pent." The question first arose in this 
 country in an early Virginia case, Eppcs i\ Tucker, 4 Call, 346, decided in 1790, in 
 which it was held, that if the ship was lost by the stranding, there could be no con- 
 tribution. And in the case of Bradhurst v. Col. Ins. Co. 9 Johns. 9, it was held, 
 under similar circumstances, that no contribution was due. A contrary decision 
 was given by Mr. Justice Washington, in Caze v. Reilly, 3 Wash. C. C. 298. 
 In this case a vessel was voluntarily run ashore to escape capture from a British frigate. 
 It was held, that the goods saved should contribute. In OdI. Ins. Co. v. Ashby, 13 
 Pet. 331, the whole subject was elaborately investigated by Mr. Justice Story, and the 
 authorities critically reviewed. He held, in accordance with what may now be con- 
 sidered as the settled doctrine, that the ultimate loss of the ship made no difference in 
 regard to the liability of the owners of the cargo to contribute. See also. Gray v. 
 Wain, 2 S. & R. 229 ; Mut. Safety Ins. Co. v. Cargo of the Brig George, Olcott, 
 Adm. 89 ; Barnard v. Adams, 10 How. 270. Bradhurst v. Col. Ins. Co. supra, is, 
 however, supported to some extent by a recent case in New York. Marshall v. 
 Garner, 6 Barb. 394. The case of Cutler v. Rac, Ms., which was an action for contri- 
 bution bi-ougbt by the owners of the vessel against the owners of the cargo, was 
 decided in favor of the libellant in the District and Circuit Courts for the District of 
 Massachusetts. The case was then taken on appeal to the Supreme Court of the 
 United States, and dismissed for want of jurisdiction. 7 How. 729. A suit was then 
 commenced in the Supreme Court of Massachusetts, which was decided in favor of the 
 defendants. No opinion was given in court, and the case is not yet reported, but we 
 understand that it was decided on the ground that the stranding was not voluntary. 
 The facts of the case were substantially as follows : The barque Zamora was at anchor 
 in Massachusetts bay near Plymouth, in a violent gale of wind, with a high rocky 
 coast under her lee. The 'anchors would not hold, and the vessel was being forced, 
 stern foremost, towards a projecting rocky point, where the vessel and all on board 
 must have perished. The captain made sail, slipped the cables, and endeavored to run 
 alono- shore till he could find a safe place on which he might beach the vessel. While
 
 CH. IX.] VOLUXTARY SACRIFICE OF PROPERTY. 293 
 
 it. And these constitute a claim for general average, which 
 rests upon one interest or another according to the principles we 
 shall state when speaking of the contributory interests. 
 
 In general, it has been found very difficult to determine when 
 and to what extent mere expenses constitute an average loss. 
 Thus, a ship by sea peril is compelled to go into a port which is 
 out of her way, and there be repaired. On whom does the cost 
 of this repair fall? It might not be easy to answer this ques- 
 tion with certainty on the authorities, but on principle, we should 
 say with little hesitation, that they fall wholly on the ship, unless 
 in one of the following exceptional cases. 
 
 The first, is where the repairs are made necessary by an injury 
 voluntarily inflicted or undergone to save the property.^ The 
 second, where they are temporary repairs, necessary only to en- 
 able the ship to save the cargo and transport it to the destined 
 port, and there cease to be of any value to the ship, either be- 
 cause a permanent repair requires their removal, or for any other 
 cause. The third, when there is an excess of expense, caused 
 by the ship's being repaired at that time and place for the sake 
 of the cargo, when otherwise the repairs would have been delayed 
 and have been made in a cheaper place, or otherwise at less 
 cost ; then this excess of cost becomes an average loss, for which 
 every thing benefited by it must contribute.^ 
 
 on the way the vessel struck on a sunken rock, passed over it, and went ashore among 
 other rocks. The lives of the crew were saved, and also the cargo, tliough in part 
 damaged. Tlie vessel was totally lost. 
 
 1 See Reynolds v. Ocean Ins. Co. 22 Pick. 191 ; Bradhurst v. Col. Ins. Co. 9 Johns. 
 9 ; Sturgess v. Cary, 2 Curtis, C. C. 59. And where damage was done to tlic vessel 
 by the swelling of the cargo caused by pouring water down to extinguish a fire, it was 
 held to be a subject of general average. Nelson r. Belmont, 5 Ducr, 310, 322 ; Lee v. 
 GrinncU, 5 Duer, 400. 
 
 - It was held, in Padelford r. Boardman, 4 Mass. 548, that repairs generally do not 
 go to tlie account of general average. Sec also, Ross v. Siiip Active, 2 Wasii. C. C. 
 226; Jackson v. Charnock, 8 T. R. 509 ; Emcrigon, ch. xii., s. xli. (Meredith's ed. p. 
 481). In Brooks i'. Oriental Ins. Co. 7 Pick. 259, the vessel, having received damage 
 in a storm, was partially repaired at the Balize. Tliesc repairs were considered, by the 
 court, to be strictly necessary, and to bQ of no value to the vessel after her return 
 home. Speaking of the general (juestion, the court said : " As to the third question, 
 it is contended for the defendants, that the temporary repairs should be charged to 
 general average ; and we arc referred to Plummer r. Wildman, 3 M. &. S. 482, which, 
 in several particulars, resembled the case at bar. The shipTiad been run foul of, and 
 so much damaged as to make it necessary to return to her port to repair, to enable her 
 
 25*
 
 294 ON THE LAW OF SHIPPING. [BOOK I. 
 
 But beside the direct expense of repairs, there is the expense of 
 paying and maintaining the crew while they are being made, and 
 while the ship is seeking the port where they may be made. In 
 France the authorities are conflicting,^ and there is some differ- 
 ence between the law of England and of this country, upon 
 this subject. In England, the tendency of authority would 
 seem to be against bringing the wages and provisions into gen- 
 eral average, unless the repairs were made necessary by a loss 
 which was itself an average loss. Thus, if a mast were cut 
 away to save ship and cargo, and the ship thereupon changed 
 her course and sought a port of repair, the' w^ages and provisions 
 from the time she changed her course, would be considered as a 
 part of the sacrifice made by cutting the mast away. But if 
 the same mast were blown away, and under the same necessity, 
 and for the same purpose, the ship sought the same port for 
 repair, the wages and provisions during the voyage to the port, 
 and while the repair was going on, would be classed with the 
 loss of the mast, and the whole of it be considered as falling on 
 the ship alone.2 g^^ jf \\^q crew are discharged, and are then 
 
 to perform the voyage, and she was afterwards completely repaired at the end of the 
 voyage. The expenses of repairs which were made abroad, which were strictly neces- 
 sary to enable the ship to perform her voyage, were placed to the account of general 
 average. Bayley, J., doubted whether the repair of any particular damage could be 
 placed to the account of general average, inasmuch as it is a benefit done to the ship. 
 The court considered those repairs only under the account of general average, which 
 were absolutely necessary for the enabling of the ship to pursiae her voyage ; and all 
 beyond were to be set down to the account of the ship. Therefore, deducting the 
 benefit, if there be any, which still results to the ship from the repair, the rest may be 
 placed to the account of general average." In Hassam v. St. Louis Perpet. Ins. Co. 
 7 La. Ann. 11, the vessel was injured by a storm, and put into a port for repairs. It 
 was agreed that the voyage could not have been completed without the repairs, that 
 the cargo could only have been sold at a great sacrifice, and that no means of trans- 
 shipping and sending it on presented themselves, yet the court held that tlic expenses 
 thus necessarily incurred were not the subject of general average. See also. Sparks v. 
 Kittrcdge, U. S. D. C, Mass., 9 Law Reporter, 318, and post, § 5. 
 
 1 Emcrigon, c. xii., s. xli. § 5, Meredith's ed. 4S0, and Pardessus, art. 741, vol. 3, 
 p. 228, contend that expenses attending the delay, such as wages and provisions, are 
 subjects of general average contribution. On the other hand, Lcmonnier, who has 
 critically examined the subject, is of the opinion that these expenses are not to be con- 
 tributed for. Lcmonnier, Ass. Maritime, vol. 2, p. 107, 113, Paris, 1843. In this he. 
 is supported by Boulay Paty. These authorities, however, admit that if the going 
 into port was caused by a general average loss, the expenses there incurred are to be 
 contributed for. 
 
 2 The two leading cases on this subject in England arc Plummet r. Wildman, 3 M.
 
 en. IX.] VOLUNTARY SACRIFICE OF PROPERTY. 295 
 
 hired as common laborers, their wages are the subject of a gen- 
 eral average contribution.^ 
 
 In this country, however, it seems to be settled that whether 
 the loss itself which makes the repair necessary, be an average 
 loss or a partial loss, that is, in the case just supposed, whether 
 the mast were cut away or blown away, it is equally for the 
 benefit of all the interests, that is, of the ship, the cargo, and the 
 
 & S. 482, and Power v. Whitmore, 4 M. &, S. 141. In the first case, the ship while on 
 a voyage was run into by a brig, which was unavoidably driven against her by the vio- 
 lence of the wind and weather. By the collision her false stem and knees were bro- 
 ken, and the master was obliged to cut away part of the rigging of the bowsprit, and 
 to return to port for repairs. A claim for contribution in general average was made 
 and allowed for the expenses incurred for pilotage into port ; for surveying and ascer- 
 taining the damage, and repairing the same ; for the materials used ; for the smith's 
 and carpenter's work ; for wharfage and cooperage, on landing and stowing the goods 
 during the repairs, and for reloading them, but a claim for the master's expenses dur- 
 ing the time of the repairs, and for crimpage to replace desertci-s during the same time, 
 was not allowed. The question in regard to the wages of the crew was not raised. 
 In Power v. Whitmore, 4 M. & S. 141, the court held that where a ship sustained 
 damage in a tempest, and put into a port to repair, neither the expense of the repairs, 
 nor the w-ages and provisions of the crew, during the delay consequent thereon, were 
 a subject for general average. These two cases appear to be diametrically opposed to 
 each other. The language of Lord Elknhoroufjh in the first case is as follows : " If 
 the return to port was necessary for the general safety of the whole concern, it seems 
 that the expenses unavoidably incurred by such necessity, may be considered as the 
 subject of general average. It is not so much a question whether the first cause of the 
 damage was owing to this or that accident, to the violence of the elements, or tlie col- 
 lision of another ship, as whether the eff'cct produced was such as to incapacitate the 
 ship without endangering the whole concern, from further prosecuting her voyage, 
 unless she returned to jjort and removed the impediment." In Power v. Whitmore, 
 Lord Ellenhorowjh distinguished the two cases, on the ground that in the former the 
 master was comiiellcd to cut away the rigging in order to ]iroserve tlie shij), and after- 
 wards put into j)ort to repair that whicli lie sacrificed. And in a recent case in Eng- 
 land, Hallctt r. AVigram, 9 C. B. .580, there is a dictum to the eft'cct that if the injury 
 which led the vessel to seek a port of refuge was itself a sulyect for general average, 
 tlien, the wages and provisions of tlie crew, and other expenses during the detention, 
 are to be contril)utcd for in general average, but otherwise, not. It is however ques- 
 tionable whctlier this distinction really exists between the two cases, notwithstanding 
 the language of Lord Ellenhorough as reported in Power v. Whitmore. In the first 
 place, though the master cut away the rigging, it docs not ajipear that he did it for 
 the safety of the ship. It was not made a charge upon the cargo, and llolroyd, 
 arguendo, expressly says that there was no proof that the cutting away of the rigging 
 was necessary for the preservation of the ship. And, in the second ])lacc, admitting 
 that it was necessary, still the other damage was caused by the collision, and tlic 
 repairs, made necessary by this ])eri!, should not, if the distinction be correct, have 
 been contributed for. See also De Vaux i*. Salvador, 4 A. & E. 420. 
 1 Da Costa v. Ncwnham, 2 T. R. 407.
 
 296 ON THE LAW OF SHIPPING. [eOOK I. 
 
 freight, that the ship should go where she can be repaired and 
 enabled to prosecute her voyage. And therefore the wages and 
 provisions are regarded as an average loss, from the time the ship 
 leaves her proper course, until the repairs are made, and she is 
 again pursuing that course ; although the direct cost of the re- 
 paks themselves may rest on the ship alone as a partial loss.^ 
 
 iWalden v. Le Roy, 2 Caines, 263; Thornton v. U. S. Ins. Co. 3 Fairf. 150; 
 Henshaw v. Mar. Ins. Co. 2 Caines, 274 ; Padelford v. Boardraan, 4 Mass. 548 ; Bar- 
 ker V. Phoenix Ins. Co. 8 Johns. 30", 318; Potter v. Ocean Ins. Co. 3 Sumner, 27; 
 Shelton v. Brig Mary, U. S. D. C, Mass., 5 Law Reporter, 75 ; Hanso v. N. 0. Mar. 
 & P. Ins. Co. 10 La. 1. See also, Ross v. The Ship Active, 2 Wash. C. C. 226; 
 Bixby V. Franklin Ins. Co. 8 Pick. 86, more fully reported, 3 Sumner, 46, note. la 
 Giles V. Eagle Ins. Co. 2 Met. 140, it was held that if a ship went ashore in a storm, 
 and was got off and repaired, the wages and provisions of the crew during the 
 time of the repairs were not a subject of general average contribution. The case was 
 decided on the authority of the English decisions, and Mr. Phillips says it seems to be 
 in direct conflict with our settled doctrine and practice. 2 Phil. Ins. § 1329. We 
 think, however, that the decision is correct, though it docs not seem to proceed on 
 what may be called the American doctrine. It is to be observed that the repairs were 
 furnished at the port where the disaster happened. There was therefore no deliberate 
 and voluntary resort to the port for the purpose of refitting, and the case therefore 
 comes within the exception pointed out by Mr. Justice Sewall in Padelford v. Board- 
 man, 4 Mass. 548, 552. See also, Spafford v. Dodge, 14 Mass. 66, 74. The answer to 
 this will probably be that since the court allowed the wages of the other persons hired 
 to get the vessel off, this showed that the expense was considered as a general average 
 one. This is owing to a confusion of the phrase "general average." Such an expense 
 was not strictly speaking a general average expense, there being no voluntary sacri- 
 fice, but the expense having been incurred in consequence of a direct peril of the sea, 
 a liability was thereby imposed upon the interests benefited, somewhat similar in its 
 nature to a general average. Although this distinction may appear somewhat hyper- 
 critical, yet it seems to us to be the only one by which the authorities can be recon- 
 ciled, and, moreover, it is fully justified by the language of the court in Greely v. Tre- 
 mont Ins. Co. 9 Cush. 415, 421. In Gazzam v. Cinn. Ins. Co. 6 Ohio, 71, it was held 
 that where a vessel, insured on a time policy, was stranded on a rock, the wages 
 of the crew during the detention were not the subject of a general average con- 
 tribution, the crew being retained under their original agreement. But where a vessel 
 was purposely run ashore, in order to save the cargo, it was held that the wages of the 
 crew while employed in laboring for the joint benefit of the adventure, were a proper 
 charge in general average. Barnard v. Adams, 10 How. 270. 
 
 In South Carolina the English rule is adopted. Union Bank of South Carolina v. 
 Union Ins. Co. Dudley, S. C. 171. It is true that the policy referred to the usages of 
 London as the standard by which the liabilities of the company were to be ascertained; 
 but it was "stated that the custom as to wages was the same in the city of Charleston. 
 In AVightman v. Macadam, 2 Brev. 230, the vessel, while on a voyage from Havana to 
 Charleston, put into Savannah. The goods were delivered to the owner on payment of 
 jno rata freight. Held that he was not ol)liged to pay for the wages and provisions 
 while there, but only for attendance on the vessel while coming into port, for pilotage,
 
 CH. IX.] VOLUNTARY SACRIFICE OF PrSpERTT. 297 
 
 And the other expenses of getting a ship into port after meeting 
 with a peril, are to be contributed for in general average.^ 
 
 So, if it be necessary to take out the goods in lighters, to 
 relieve the ship, and save ship and cargo from peril, this expense 
 must be averaged.^ In one case, where a ship was stranded 
 near her port of delivery, and lighters were sent which took out 
 her cargo and carried it into port, the vessel never being got off, 
 it was held that the expense of lighterage was an average loss, 
 to which the cargo should contribute.^ "We can understand this 
 case, however, only on the supposition (which a part of the 
 statement indicates) that the lighters were considered as sent by 
 all the parties, by agreement, for the common benefit, and there- 
 fore that the expense was incurred by all. On general grounds, 
 we should have said that the ship had earned her whole freight 
 by conveying the cargo to its destination, and must herself pay, 
 or deduct from the freight the expense of the lighters in which 
 it was earned.'* 
 
 If the goods, which are taken out into lighters for the com- 
 mon benefit, are thereby, or while in the lighters, lost or injured, 
 this generally constitutes an average loss ; ^ but if, after the 
 cargo is partly taken out, the ship and the cargo in her are lost, 
 and the goods in the lighters saved, they do not contribute for 
 
 harbor master's and health officer's charges, wharfage, expense of unloading, and per- 
 haps for the protest. The wages and expenses of the crew daring rcjiairs made at the 
 port of delivery are not to be contributed for. Dunham v. Com. Ins. Co. 11 Johns. 
 315 ; even if the insurance be on time. Perry i\ Ohio Ins. Co. 5 Ohio, 305. Nor are 
 they in any case wlien the voyage has been abandoned from necessity, and the vessel 
 obliged to return home. See post, § 5. 
 
 1 Lyon V. Alvord, 18 Conn. 66. In this case, the expense of towing a vessel which 
 had struck on a rock, into port, was allowed in general average. And in Nelson r. 
 Belmont, 5 Ducr, 310, whei-e a vessel accompanied anotiier wliich had met with an 
 accident, into port, the expense was allowed in general average. Sec also cases in note 
 supra. 
 
 '^2 Phillips on Ins. § 128S; Beneckc & Stevens on Average (Phillips' ed.), 133; 
 Marshall on Ins. 538. 
 
 8 Ileyliger v. N. Y. Firemen Ins. Co. 11 Johns. 85. 
 
 * In Lewis v. Williams, 1 Hall, 430, 444, the court said that this was strictly a case 
 of salvage, and not eo nomine an average less. 
 
 6 Lewis V. Williams, 1 Ilall, 430. Sec also, 1 Mag. 100, Case ix. Goods were 
 taken out of a vessel which had sprung a leak at sea, and put on board otiier vessels 
 that the leak might be discovered, and stopped. In consequence of this she was ena- 
 bled to prosecute and complete her voyage. The goods taken out were captured ; and 
 were contributed for in general average.
 
 298 ON*THE LAW OF SHIPPING. [bOOK I. 
 
 the property lost, for it was not lost for their benefit, nor as a 
 consequence of any measures taken for their advantage.^ 
 
 So, if it be necessary for the general benefit to take out and 
 store the cargo until the ship is repaired, and then return it, the 
 whole expense of this is to be averaged,^ and if the goods are 
 damaged in consequence of such removal, they are to be con- 
 tributed for.^ So, too, the expenses of pumping out a ship for 
 the common good, or, indeed, any similar expense,* as scuttling, 
 is a general average expense.^ 
 
 We have no doubt that a ransom paid in good faith, to any 
 captor, whether piratical or belligerent, would be regarded in this 
 country as an average loss.^ And in England it would seem to 
 
 1 Benecke & Stevens on Average, Phillips' ed. p. 65 ; Molloy, Book 2, c. vi. s. xii. 
 
 2 Barker v. Phoenix lus. Co. 8 Johns. 307, 318. And the law is the same in Eng- 
 land, although the repairs were rendered necessary by a peril of the sea. The Copen- 
 hagen, 1 Rob. Adra. 289, 294 ; Plummer v. Wildman, 3 M. & S. 482 ; Hall v. Janson, 
 4Ellis & B. 500, 29 Eng. L. &Eq. 111. See post, § 5. 
 
 3 Hcnnen v. Monro, 16 INIart. La. 449. In Shelton v. Brig Mary, U. S. D. C, Mass., 
 5 Law Reporter, 75, it was necessary to remove the cargo in order to repair the vessel, 
 but the cargo was so much damaged that it was also necessary to unload it for its own 
 preservation. While on shore, part was destroyed by fire. Held, under these circum- 
 stances, that no contribution was due, as the owner could not be considered as having 
 made a voluntary sacrifice, for the purpose of prosecuting the voyage. And in Bond 
 V. The Superb, 1 Wallace, Jr., 355, it was held that the removal of part of a cargo of 
 perishable fruit in a port of necessity, for the purpose of repairs, which increased an 
 incipient decay, and hastened a partial destruction of the fruit, did not give the owner 
 of the cargo a claim for general average. In 2 Wharton's Dig. 48, tit. Ins. 142, it is 
 said that such a loss is no answer in whole or in part to a claim on the part of the 
 owner of the vessel for contribution from the cargo, citing Berg v. Bond, Adm. E. D. 
 Pa., affirmed 1 Wallace, Jr., 356. We have, however, been unable to find any report 
 of the case in 1 Wallace, Jr. 
 
 * Orrok v. Commonwealth Ins. Co. 21 Pick. 456, 469. See also. Nelson v. Belmont, 
 5 Duer, 310, 325. So, in Giles v. Eagle Ins. Co. 2 Met. 140, it was held, that expenses 
 incurred in hiring men to assist the crew in getting off a vessel, which had gone ashore 
 in a storm, should be contributed for, though the expenses of the crew should not be. 
 
 s Nelson v. Belmont, 5 Duer, 310. See also, Lee v. Grinnell, 5 Duer, 400. 
 
 6 If a portion of the cargo be delivered up to a pirate by way of composition, the 
 remaining part must contril)ute. See cases cited post, p. 299, note 4. And Mr. Phillips, 
 in his Tre-itise on Insurance, vol. 2, ^ 1336, says : "It was formerly the pi'actice to 
 ransom vessels captured by the pubhc enemy, and to give hostages as security for the 
 payment of the ransom, in which case the amount of the ransom, as well as the ex- 
 penses of the hostage during his detention, were settled by general contribution. 
 (Emer. tome 1, p. 474, 629, 630; Lopes i'. Winter, Postlethw. Diet. tit. Average.) 
 But more recently, lairs have been enacted prohibiting compositions with a public enemy (22 
 Geo. III. c. 35 ; 35 Geo. III. c. 66, s. 37-39), and such compositions have been considered 
 illegal, thoufjh not prohibited bij specific Jaws." For this last proposition no authority is
 
 en. IX.] yOLUNTARY SACRIFICE OF PROPERTY. 299 
 
 be so if the capture be piratical. But an English statute pro- 
 hibits ransom to an enemy ; ^ and under this statute it has been 
 held, that if a master ransoms his ship and brings her home, the 
 owner may take her from him without repaying what he ex- 
 pended, nor would the owner be obliged to repay money which 
 was borrowed for this purpose.^ And the master would not be 
 liable for the debt to the lender.^ 
 
 If a pirate, or captor, select what he chooses from the cargo 
 or furniture of the ship and take it away, leaving the rest, what 
 is left shall not contribute towards what was taken, because it 
 was not saved by the taking.* 
 
 cited liy the learned author, and wc arc inclined to doubt whether it be correct on prin- 
 ciple or on authority. Every writer on international law speaks of ransom between 
 belligerents as undoubtedly lawful, except when it is jirohibited by statute. Mr. Justice 
 Stonj, in Maisonnaire v. Keating, 2 Gallis. 325, 338, said : " The very law of war pro- 
 hibits all commercial intercourse, and suspends all existing contracts between enemies ; 
 and the case of ransoms is almost the only exception, ivhich has been admitted, from the general 
 rule." See also, Chitty's Law of Nations, 90 ; 2 Azuni's Maritime Law of Europe, 
 313 ; 2 MoUoy, c. vi. s. xiii. ; Poison and Home, Law of Nations, 40 ; Wheaton's 
 Elements of Inter. Law, 478 ; The Hoop, 1 Rob. Adm. 196, 201 ; Ricord v. Bettenham, 
 3 Burr. 1734. In this last case an action was sustained in England on a ransom bill 
 given by the captain of an English vessel which had been captured by a French priva- 
 teer. See also, Girard v. Ware, Pet. C. C. 142. This was a suit brought i^ the 
 respondents, the libellants in the court below, for wages. The ship of the appelmnt, to 
 which they belonged, was captured by the British within the capes of Delaware. She 
 was afterwards ransomed by the owner and brought to Piiiladclphia. Held, that the 
 appellees were entitled to full wages, subject to a contribution on account of the ran- 
 som. In Maisonnaire v. Keating, 2 Gallis. 325, it was argued that a contract for a 
 ransom made between a belligerent and a neutral, immediately after capture, was ille- 
 gal, because every ransom supposed a vested right in the captors, and that this did not 
 exist in respect to neutrals, on the ground tliat the captors had only a right to bring in 
 for adjudication, and that neutral property was only liable to condemnation in case of 
 delinquency, but it was held, by Mr. Justice Story, that the right to take a ransom was 
 not founded in a vested title, nor was it, strictly speaking, a repurchase of the captured 
 property, but a relinquishment of all the interest and benefit, which the captors might 
 acquire or consummate in the property by the regular adjudications of a prize tril)unal, 
 and that, therefore, the right- to take a ransom existed from tlit moment of capture. 
 See also, Welles v. Gray, 10 Mass. 42; Clarkson v. Phoenix Ins. Co. 9 Johns. 1. If, 
 therefore, a ransom is made for the benefit of all concerned, it is clearly a case of gen- 
 eral average. Douglas v. Moody, 9 Miiss. 548 ; Sansom v. Ball, 4 Dall. 459. 
 
 1 45 Geo. III. c. 72, s. 16. See also, 2 Azuni on Maritime Law, Part II. ch. iv. art. 
 vi. § 12. 
 
 - Parsons v. Scott, 2 Taunt. 303. 
 
 3 Webb V. Brooke, 3 Taunt. C. 
 
 * Dig. 14, 2, 2, 3; Hicks v. Palington, F. Moore, 297 ; 1 Mag. 04; Beawcs, Lex 
 Mercatoria, p. 149, tit. Gen. Average; Nesbitt v. Lushington, 4 T. R. 783.
 
 300 ON THE LAW OF SHIPPING. [BOOK I. 
 
 Besides the delay or detention of a ship for the purpose of re- 
 pair, there are other causes which detain a ship on her voyage ; 
 and sometimes for a long time. These may give rise to difficult 
 questions. It is a general rule, that no expenses of delay or de- 
 tention are averaged, unless the voyage had been begun pre- 
 vious to the detention, and was suspended by it. For otherwise 
 it would be only a hinderance or prevention of the voyage, and 
 this cannot be a ground for contribution. 
 
 If a ship be detained, on her voyage, by an embargo, it may 
 be regarded, as a general rule, that the wages and provisions of 
 the crew are not an average expense ; for this is no voluntary 
 sacrifice.! So, too, with delay by quarantine;- or while wait- 
 
 1 In Da Costa v. Ncwnham, 2 T. R. 407, which was a case of a ship going into port 
 for repairs, and the question being raised whether the wages and provisions of the crew 
 should be compensated for in general average, Mr. Justice /Ju/Zer said: "As to the 
 wages and provisions, this is not like the case where a ship is detained by an embargo, 
 where the court have said that the expense shall fall on the owner only, and the freight 
 must bear it." In this country the cuiTent of decisions is in favor of the proposition 
 that wages and provisions, during a detention by an embargo, are not a subject of gen- 
 eral average. M'Bride v. Mar. Ins. Co. 7 Johns. 431 ; Harrod v. Lewis, 3 Mart. La. 
 311 ; Penny v. N. Y. Ins. Co. 3 Caincs, 155. But a contrary decision has been given 
 in Pennsylvania, Ins. Co. of N. A. v. Jones, 2 Binn. 547, overruling the same case 
 in th^upreme Court, 4 Dall. 246. Sec also, Kingston v. Girard, 4 Dall. 274. The 
 authomies are much more conflicting on the point whether expenses incurred during a 
 detention by capture arc the subject of general average contribution. In Spaiford v. 
 Dodge, 14 Mass. 66, 74, Mr. J u.st\QQ Jackson states the law as follows: "As to the 
 wages and provisions of the crew during the detention, we are unable, notwithstanding 
 the very respectable authorities cited in support of this claim, to see any ground on 
 which we can allow it, consistently with the established principles on this subject, and 
 the course of decisions in this State. The only case, in which this charge has been 
 allowed in an account of a general average in our courts, was where it was necessary 
 to go into port, to repair damages sustained during the voyage from the perils of the 
 sea ; and the master, for that reason, voluntarily sought a port to refit. Here it is to 
 be observed, the delay was voluntarily incurred by the master; the mind and agency of 
 vian icere employed in producing it ; and this circumstance is deemed essential in every 
 case of general average, in contradistinction to such unavoidable detentions and losses, 
 as arise from accident bej-ond the control of the master. We see no ground of distinc- 
 tion in this respect, between a temporary detention, occasioned by a hostile seizure and 
 one which is occasioned by an embargo, or by a tempest, or other common peril of the sea. 
 .... The ship-owner might as well claim a contribution for the wear and tear of his 
 ship during the detention, or the owner of the cargo for the interest of his money, for 
 the deterioration of his merchandise, or for the loss of a market by the delay, as the owner 
 of the freight for the cxtraoi'dinary w^ages and provisions expended on such an occa- 
 sion." The point has, however, been generally decided otherwise. Leavenworth v. 
 
 2 Stevens & Benecke, by Phillips, 165.
 
 en. IX.] VOLUNTARY SACRIFICE OF PROPERTY. 301 
 
 ing for convoy;^ or by being frozen np while pursuing the 
 voyage.2 
 
 In all these, or any cases of delay or detention, even before 
 the voyage begins, it is always possible that there may be a 
 necessity of expending money for the common benefit. And 
 such expenditure, especially if it be required by some extra- 
 ordinary emergency, and is incurred so strictly for the com- 
 mon good that no necessity or advantage which belongs to any 
 one interest alone would have caused it, becomes an average 
 loss, to which all the interests benefited, and only those, must 
 contribute. On this ground it is quite clear that expenses incur- 
 
 Delafield, 1 Caines, 573 ; Huitin v. Phcenix Ins. Co. 1 Wash. C. C. 400. A distinc- 
 tion is made in the last cited cases between an embargo and a capture. It is said that 
 a capture dissolves the contract, wliile an embargo does not, and that, therefore, in the 
 latter case the seamen are under obligations to remain by the vessel, while in the former 
 they are at liberty to depart, and if they remain, this is a voluntary act on their part, 
 and their wages and provisions, tlierefore, are a subject of general average contribu- 
 tion. And on this ground alone the court distinguish the case of Penny v. N. Y. Ins. 
 Co. from that of Leavenworth v. Delafield. This distinction is shown to be incorrect 
 in Spafford ?;. Dodge, and it is there held, that the contract is no more dissolved in the 
 one case than in the other, and tliis proposition is sustained by high authority. The 
 Natlianiel Hooper, 3 Sumner, 5-42, 557. The law laid down in jMassachusetts seems, 
 therefore, to be more consistent and better founded on principle than the New York 
 doctrine. It has, however, been suggested, by an eminent writer on this subject (see 
 Walden v. Le Roy, 2 Am. Leading Cases, 1st ed., 404, 424, where the question is fully 
 and learnedly discussed), that the inquiry is not whether a cajiture, under ordinary cir- 
 cumstances, terminates a contract of aftVeightment, but it is said, that " general average 
 has its origin in the intervention of a vis major, introducing a new set of relations into 
 the contract for the time being, apart from the effect, which it may have in abrogating 
 it altogether; and that whenever this is the case, a sacrifice, voluntarily made, for the 
 benefit of all, will render all liable for contribution, whether the party making it were 
 or were not bound to pursue that course, in pursuance of the general duties of his posi- 
 tion, or under the express or implied provisions of any previous contract." In support 
 of this view the illustration is given of a master being bound to cut away the masts, or 
 slip tiie cables of his vessel, if such a course were necessary to prevent the ship and 
 cargo from being stranded or otherwise injured by any great disaster, " and yet," it is 
 said, that " it has never been supposed that because his action, in this respect, was done 
 in discharge of the obligation im])osed by his position, the owners of the cargo were enti- 
 tled to deny the character of general average to the loss thus occasioned, or to say, that 
 if what had been done were necessary for the safety of the cargo, it was done in pureu- 
 ance of the prior obligations of the master and owner; and, if it were not that no con- 
 tribution could be claimed for a sacrifice which had not been beneficial." 
 
 1 Stevens & Benccke on Average, by Phillii)S, p. 149 ; Bynkershock, Qucstiones Juris 
 Prirati, lib. 4, c. 25. It is obvious that all these cases depend, for their solution, upon 
 the construction to be given to the contract, as set forth in the preceding note. 
 
 2 1 Mag. 67. 
 
 VOL. I. 26
 
 302 ON THE LAAV OF SHIPPING. [bOOK I. 
 
 red after a capture, in defending tiie property, preventing con- 
 demnation, or obtaining a release, or escaping, are average ex- 
 penses.^ So, too, if a crew are voluntarily detained because 
 there is a rational possibility of release, and they will then be 
 wanted to navigate the ship, the wages and provisions should 
 be a general charge in the nature of general average, even if 
 there be no release. 
 
 Where funds are raised for the common benefit, all the inter- 
 ests assisted must repay them ; and also, all losses incurred 
 necessarily in raising the funds, as damages, premiums, extra 
 interest, brokerage, and the like.- 
 
 If goods are sold for such a purpose, there seems to be no rea- 
 son why they should not be put on the footing of goods jetti- 
 soned.^ If they are hypothecated by respondentia, and are lost, 
 
 1 " The necessarj' costs and charges, incuiTed and paid by the defendants in reclaim- 
 ing: and procuring the restoration of the ship and cargo, are undoubtedly to be allowed 
 as a general average." Per Jackso)}, J., in the case of Spafford v. Dodge, 14 Mass. 66, 
 74. See also, Douglas v. Moody, 9 Mass. 548. But if the expenses incurred are only 
 for the benefit of the cargo alone, or of the ship, only the thing benefited is to con- 
 tribute. Peters v. Warren Ins. Co. 1 Story, 463, 469; Vandenheuvel v. United Ins. 
 Co. 1 Johns. 406 ; Jumel v. Marine Ins. Co. 7 Johns. 412. 
 
 - Benecke & Stevens on Average, Phil. ed. 172. 
 
 3 In The Gratitudine, 3 Eob. Adm. 240, 263 (which was a case of a master hypothe- 
 cating his cargo to pay for necessary repairs), Lord Stoivell said the books overflowed 
 with authorities that the master might sell part of his cargo, and that a sale of part 
 was equivalent to the hypothecation of the whole, and was a fit subject for general 
 average. And Lord Ellenborougk, in Dobson v. Wilson, 3 Camp. 480, 487, expressed 
 his opinion that if a ship should be seized for the non-payment of the Sound dues, and 
 it became necessary to sell a part of the cargo, in order to obtain her release, this might 
 be the foundation of a claim for general average. See also, Eichardson v. Isourse, 3 
 B. & Aid. 237 ; The Constancia, 4 Notes of Cases, 677. iMr. Justice Story, in the case 
 of The Ship Packet, 3 Mason, 255, 260, said : " In the case of a sale of part of the 
 cargo by the master for the necessities of the ship, the sale is in the nature of a com- 
 pulsive loan for the benefit of all concerned, and to enable the ship to prosecute her 
 voyage. It bears a considerable resemblance to the case of a jettison, for the owner is 
 deprived of his property for the common good, and to him it must be immaterial 
 whether the loss be by a sacrifice at sea, or on shore." See also, Giles v. Eagle Ins. 
 Co. 2 Met. 140, 144, where the loss in the sale of a quantity of salt, which had been 
 sold to pay the expenses iucurred in getting off and repairing a vessel, which had been 
 driven on shore in a gale, was compensated for in general average. But see post, tit. 
 Bottomry, ch. 11, near the end of the chapter. In The Schooner Leonidas, Olcott, 
 Adm. 12, 15, there is a dictum that where the master sells part of the cargo to supply the 
 necessities of the ship, the owners would probably be entitled, in case the ship or 
 owners could not satisfy their demand, to compel the other o^miers of the cargo to con- 
 txibute according to theii- respective interests. In Shclton v. Brig Mary, 6 Law Ke-
 
 en. IX.] VOLUNTARY SACRIFICE OF PROPERTY. 303 
 
 this discharges the bond, and the shipper loses nothing by it; if 
 they arc saved and applied to the payment of the bond, this 
 gives the shipper a claim for contribution.^ 
 
 If a ship be wrecked and the master forward the goods, the 
 extra expense of doing so is charged either to the ship or to the 
 goods forwarded, and does not come into general average.^ 
 
 A claim analogous to that for contribution might arise by the 
 sacrifice of property which was not at risk, nor even owned by any 
 of the parties who had an interest in ship, cargo, or freight. If, 
 for example, it should be necessary, for the purpose of saving from 
 fire a ship with her cargo, which lies immovable at a wharf, to 
 destroy property, whether another ship or a building or any thing 
 else, and this is done by any one of the owners of the endan- 
 gered ship or cargo, or by any person for him, it must be paid 
 
 porter, 75, specie was shipped from Boston to Porto Cabello to purchase a return 
 cargo. The vessel was obliged to put into Antigua, and while there the niastei-, being 
 destitute of funds, sold part of the specie for the purpose of making repairs, and the 
 vessel proceeded to her port of destination, and thence to Boston. It was admitted 
 that the specie should be paid for in general average, and it was held, that the owners 
 were entitled to interest on the same from the time when they would have had the 
 benefit of it at Porto Cabello, if it had been carried forward. 
 
 1 We have seen, ante, p. 159, n. 2, that if a master of a vessel is obliged to put 
 into a port of distress, ho may either send on the cargo in another ship, or retain it 
 and repair his own. If he has no money to pay for the repairs, and can raise none 
 on the personal credit of the owner of the vessel, he may hypothecate the ship and 
 cargo for that purpose. The question then arises in what case can the owner of the 
 goods hypothecated call on the other shippers for a general average contribution. If 
 another ship can be found to take the goods on, although the master has the right to 
 detain them till his own ship is repaired, still, in such a case, the detention would 
 clearly not be for the benefit of the goods, and it would seem that the other shippers 
 should not contribute; but when no other vessel can be obtained, and the ship cannot 
 proceed and complete the voyage without repairs, and there are no means of making 
 them except by a hypothecation of the cargo, and this is done, we .are strongly inclined 
 to the opinion that the expense which is thus incurred should lie made good by a gen- 
 eral average contrilmtion. This is clearly the opinion of Lord Stoiccll, in the celebrated 
 case of The Gratitudine, 3 Rob. Adm. 240, 264, in which, after stating that all must 
 finally contribute in the case of an actual sale of a part of a cargo, he adverts to the 
 case of a hypothecation of the whole, which he considers equivalent to the sale of a 
 part, and says : " All contribute in this, as a portion of the whole value of the cargo is 
 abraded, for the general benefit, probably witii less inconvenience to the parties, than if 
 any one person's whole adventure of goods had been sacrificed by a disadvant.ngeous 
 sale in the first instance." Sec also, The Constancia, 4 Notes of Cases, 677 ; The Ship 
 Packet, 3-Mason, 255. But see post, tit. Bottomry, ch. 11, near the end of the chap- 
 ter. 
 
 2 Phil. Ins. § 1341.
 
 804 ox THE LAW OF SUIPPIXG. [bOOK I. 
 
 for by the party who does it; and then this payment might give 
 rise to a claim for compensation in some form, against all the 
 interests saved by it.^ We may reverse the case, and suppose 
 an injury inflicted upon the common property by one, either in 
 wrong or for good reason, but such as gives to all who suffer a 
 claim for indemnity. If this claim be enforced, the expense of 
 doing so would be so far like that of general average, that none 
 should be entitled to Iheir share of the benefit, who did not 
 advance or repay their share of the cost. But it has been held 
 that the right to contribution, strictly so called, does not extend 
 beyond those who voluntarily embark in a common adventure; 
 and that if A's vessel is about to come into collision with B's, 
 which is at anchor, and B cuts his cable and thus avoids it, he 
 has no claim for contribution against A for the loss of the cable 
 and anchor.^ 
 
 All the immediate and direct consequences of a sacrifice, 
 although these consequences were neither intended, nor benefi- 
 cial, are to be taken as entering into and forming a part of the 
 sacrifice ; and the amount or value of them is to be added to the 
 amount or value of the original and intended sacrifice, to ascer- 
 tain the whole sum which is to be averaged as a loss for the 
 common benefit.^ - 
 
 1 The twenty-first article of the twentieth chapter of tlie Ordenanzas de Bilbao pro- 
 vides, that when a vessel catches fire in a river or harbor, and an adjoining vessel is 
 sunk in order to save the others, the damage must be made good by a contribution from 
 all the other ships and cargoes. See also, Casaregis, Disc. 46, n. 45, 63. 
 
 2 Tlie John Perkins, U. S. C. C, Mass., 1857, 21 Law Reporter, 87, 97. 
 
 2 In Maggrath v. Church, 1 Caines, 196, the vessel, loaded with corn, encountered 
 severe weather, and a mast was cut away for the general preservation. In cutting it 
 away, it was splintered, and in consequence thereof water entered the hold and dam- 
 aged the corn. Kent, J., said : " The corn being damaged by the cutting away of the 
 mast, is to be considered, equally with the mast, a sacrifice for the common benefit — 
 a price of safety to the rest ; and it is founded on the clearest equity, that all the 
 property and interest saved ought to contribute their dne proportion to this sacrifice." 
 See also, Saltus v. Ocean Ins. Co. 14 Johns. 138. In Lee v. Grinnell, 5 Duer, 400, 
 423, Hoffman, J., said : " The essential constituents of a case of contribution are, that 
 the intelligence, the will, and the act of man have intended and produced the sacrifice 
 of the tiling for which compensation is sought, and have worked in whole or in part, 
 the preservation of the property from which it is claimed. The subjects destroyed 
 must have been, in the contemplation of the party, as things to be destro3-ed. This 
 rule admits, indeed, of a few guarded exceptions, but none which may not be consid- 
 ered in the ordinary course of events, as comprehended within the intention. The cut- 
 ting away of masts is probably as often accompanied with damage to boats and rail-
 
 CH. IX.] YOLUXTARY SACRIFICE OF PROPERTY. 305 
 
 Let US now consider the cases which illustrate the require- 
 ment that the loss should be voluntary and intended,^ and also 
 for the benefit of other property. Thus, where dollars were 
 thrown over to prevent their falling into the hands of an enemy, 
 this was a voluntary and intended loss, but was not sustained 
 for the benefit of other property, and therefore was not even pre- 
 sented to the court as an average claim.^ So if sails are blown 
 away, or masts, or rigging, or cables lost by the violence of the 
 wind or sea, here is no average loss, because no voluntary loss.^ 
 And even if the sails or spars are lost by an extraordinary expo- 
 sure in an emergency, as by an extreme press of sail to escape 
 capture,* or wreck,^ this would come near to an average loss; but 
 the better opinion is, that it should rather be considered only as 
 a loss by a sea peril. It would be very difficult to discriminate 
 
 ings as otherwise, and this may well be assumed to have been an expected consequence. 
 The leak, as in the case of Maggrath v. Cliurch, may reasonably be anticipated as a 
 probable result of the splintering of masts when cut away." The burden is on the 
 owner of the cargo in such a case to show that the damage wtxs thus occasioned. 
 Sheltou V. Brig Mary, U. S. D. C, Mass., 5 Law Reporter, 75. In Nimick v. Holmes, 
 25 Penn. State, 3G6, it was held th.at where a vessel or its cargo takes fire without the 
 fault of the crew, the damage done by the application of water or steam for the pur- 
 pose of extinguishing the flames, and by tearing up part of the deck of the vessel 
 should be contributed for in general average. But this would seem more properly to 
 be a case of partial loss for which the insurers against fire would be liable. 
 
 1 In Sansom v. Ball, 4 Dall. 459, the ship was captured, and afterwards recaptured. 
 The amount of salvage due the recaptors was settled by a compromise, and for the 
 amount so paid, an action was brought against the parties benefited for a general aver- 
 age contribution. The cjucstion was raised whether the payment to the recaptors was 
 a voluntary act. The court said : " General average always arises from actions 
 produced by necessity. In the case before us, there was a capture, recapture, and 
 decree of salvage. The master and supercargo consented under these circumstances to 
 a measure, which produced a general benefit. They surely e.\ercised as much volition, 
 as if they had thrown half her cargo overboard in a storm." In what cases a strand- 
 ing will be considered as voluntary, see ante, p. 291, n. 1. 
 
 2 Butler ('. Wildman, 3 B. & Aid. 398. 
 8 Digest, 14, 2, 2. 
 
 * Covington v. Roberts, 5 B. & P. 378. In this case a vessel was captured by a 
 French privateer, but, on account of a heavy gale, the privateer could not take posses- 
 sion of her. To effect her escape, she carried an unusual press of sail, in consequence 
 of which she was much strained, opened most of her seams, and carried away the 
 head of her mainmast, but finally succeeded in getting away. Held that the damage 
 to the vessel was not a subject for general average. Sir Jame.'i Mansfield, C. J., said : 
 " This is only a common sea risk. If the weather had been rather better, or the ship 
 stronger, nothing might have happened." 
 
 5 Power V. Whitmore, 4 M. & S. 141. 
 
 26*
 
 306 ox THE LAW OF SHIPPING. [bOOK I. 
 
 between such a case as this, and any earnest endeavor to escape 
 from imminent danger. If, however, a cable be cut, and an anchor 
 lost, or goods jettisoned to escape from an enemy, this is as cer- 
 tainly an average loss, as if done to escape wreck.^ And the ex- 
 pense of hiring convoy, or other protection, for the common benefit, 
 would certainly, if the necessity arose from some unexpected and 
 extraordinary peril, be considered as general average, although 
 the expenses of convoy, in the common way, are not.^ So, if an 
 armed ship gives battle to a pursuing enemy, and beats her off, 
 the loss sustained in the battle, whatever it be, constitutes no 
 average claim, because it is but a consequence of a discharge of 
 the obligation of the ship to carry on the goods if possible ; 
 and the loss must rest where it is cast " by the fortune of 
 war." 3 
 
 If masts are overboard, and, hanging by the ship, embarrass 
 or endanger her, and are cut away, this might be a general aver- 
 age loss, but only for the value of the masts and rigging as 
 
 ^ Benecke «Sb Stevens on Average, Phillips' ed. 154. Emerigon, in his treatise on 
 Insurance, ch. xii. s. xli. § 5, Meredith's ed. 480, gives a very good illustration of this. 
 The master of a French vessel, having been pursued by two frigates, and his flight 
 being intercepted by two others ahead, as soon as it became dark, lowered his boat into 
 the sea, with a mast and sail, and a lantern at the masthead, and then changed his 
 course, and sailed all night without a light, and in this way escaped. The value of 
 the boat was made good by a general average contribution. See also, Price v. Noble, 
 4 Taunt. 123. 
 
 2 Benecke & Stevens on Av., Phillips' ed. 149, 151. And it has been held that 
 •where a vessel meets with an accident at sea, and is obliged to go into port and another 
 vessel accompanies her for the common good, it is a general average expense. Nelson 
 V. Belmont, 5 Duer, 310. It is stated b}^ Mr. Stevens in his valuable essay on Gen- 
 eral Average, p. 16 (Benecke & Stevens on Av., Phillips' ed. p. 67), that "some of 
 the foreign ordinances say, that if a cable be cut or slipt to sail with convoy, the value 
 shall be brought into a general contribution ; but this is not the practice with us." 
 
 3 Taylor v. Curtis, 6 Taunt. 608. In this case a vessel was attacked by a privateer, 
 but the latter was finally beaten off. The loss suffered was claimed as general average, 
 but the claim was not allowed. Gibbs, C. J., in delivering the opinion of the court, 
 said : " The losses, for which the plaintiffs seek to recover this contribution, are of 
 three descriptions : first, the damage sustained by the hull and rigging of the vessel, 
 and the cost of her repairs ; secondly, the expense of the cure of the wounds received 
 by the crew in defending the vessel ; thirdly, the expenditure of powder and shot in 
 
 the engagement The measure of resisting the privateer was for the general benefit, 
 
 but it was a part of the adventure. No particular part of the property was voluntarily 
 sacrificed for the protection of the rest. The losses fell where the fortune of war cast 
 them, and there it seems to me they ought to rest. It therefore follows that these losses 
 were not of the nature of general average, and that the plaiutifts cannot recover."
 
 en. IX.] VOLUNTARY SACRIFICE OF PROPERTY. 307 
 
 they then were, for only that is voluntarily sacrificed ; and this 
 value would generally be nothing. ^ 
 
 Gratuities to sailors, paid or promised, to increase their exer- 
 tions during peril, have been held not to constitute an average 
 loss, but to be a part of the expense of the ship. And if in a 
 port of repair, or elsewhere, where wages and provisions consti- 
 tute an average expense, extra wages to which the sailors are 
 not entitled, are paid to them by mistake of law, these are not 
 to be contributed for.^ 
 
 "VVe have already said, that if goods are carried on deck, the 
 jettison of them gives no claim for contribution. We return to 
 the subject to state more emphatically the reason of this rule. 
 It is, that the law-merchant strongly discourages the carrying 
 of goods on deck, not only because of the greater danger to 
 them, but still more, perhaps, from the increase of peril caused 
 by it to the ship and cargo, by its embarrassing the navigation of 
 the vessel, and rendering her top-heavy.^ For these reasons, if a 
 
 1 Nickerson v. Tyson, 8 Mass. 467 ; 1 Magens, 181 ; Emerig. c. 12, sect. 41, § 5 ; 
 Ord. Copenhag. a. 1, ^ 10. In Benecke & Stevens on Average, Phil: cd. p. Ill, it is 
 said, that tliough it is the practice in most countries to allow for the rigging so cut, in 
 general average, at the value which it may be supposed to have had under those cir- 
 cumstances, yet in England no sucli allowance is made. For this two reasons are 
 given. First, because, it is said, the rigging was then of no value at all. This reason 
 is not adopted by Mr. Benecke, because he says it cannot be denied to be still of some 
 value. He then goes on to say : " The true cause, as it appears to me, is, tliat under 
 such circumstances, generally speaking, it would be imposslUe to work the vessel with- 
 out cutting away the broken mast, and the rigging in which it is entangled, so that this 
 act was not optional, but dictated by necessity, and consequently there was no sacrifice. 
 But if such a circumstance occurred in sight of a port, which the vessel might reach 
 without the rigging being cut, and this measure be resorted to merely to facilitate the 
 mana'uvring of the vessel, and to give her and the cargo a. better chance of escaping 
 the danger ; in that case it would indeed be a sacrifice, and the rigging, so cut away, 
 ought to be allowed for, at the value which it would have had if not cut away." 
 
 2 See post, ch. 12, § 2. 
 
 ^ Ord. de la Marine, liv. 3, tit. 8, art. 1.3 ; Consolato del JIarc, par Pardessus, c. 1S6 ; 
 Malynes, Lex Mercatoria, c. 26. The foreign ordinances generally are to the same 
 effect. See those of Genoa, Antwerp, Lubeck, France, liotterdam, Konigsberg, 
 Hamburg, Bill)oa, Copenhagen, Stockholm. See also, Myer v. Vander Dcyl, before 
 Lord Ellenhorowjh, Dec. 1803, Abbott on Ship. 481 ; Johnston v. Crane, 1 Kerr, New 
 Brunsw. Hep. 3.')6 ; Smith v. Wright, 1 Caines, 43 ; Lenox v. United Ins. Co. 3 
 Johns. Cas. 178 ; Dodge r. Bartol, 5 Greenl. 286 ; Cram r. Aiken, 13 Maine, 229; 
 Sproat i;. Donnell, 26 Maine, 185; Hampton v. Brig Thaddeus, 4 Mart. La. 582; 
 Doane v. Keating, 12 Leigh, 391 ; Barber i-. Brace, 3 Conn. 9. In Gillett v. Ellis, 1 1 
 HI. 579, it was held that goods on the deck of a propeller did not come within tliis rule. 
 The court said, speaking of i)ropellers : " They are double deckers with two holds. 
 By the general custom prevailing in reference to them, goods stowed on the main deck,
 
 308 ON THE LAW OF SIIIPPIXG. [BOOK I. 
 
 master places the goods on deck without the knowledge and 
 consent of their owner, and then throws them over to escape 
 from peril, the shipper has no claim for contribution, but may 
 claim the whole loss from the ship, as resulting from the wrong 
 doing of»the master.^ If the goods are so placed with the con- 
 sent of the shipper, this gives him no claim for contribution on 
 the rest of the cargo, because it was an injury or increase of 
 peril to that, which the shippers of that part cannot be presumed 
 to have agreed to,^ and it would seem that it does not give 
 him a claim for contribution, on the ship.^ If the goods are 
 carried on deck in conformity with an established and known 
 usage, or if the shipper pays full freight for them, the question 
 
 or uppei- hold, are regarded as under hatches, and as safe as those stowed in the lower 
 hold, or where the cargo in ordinary vessels is only considered as under cover. The 
 master is allowed by this general custom to stow the cargo either in the hold, or on the 
 main deck, at his convenience. No distinction is made in the price of transportation 
 by the carrier, or in the rates of insurance by the underwriter. The cargo below and 
 between decks is put on the same footing. This universal usage resulting from the 
 character of the vessel must govern the rights and liabilities of the owners of the ves- 
 sel and cargo. The owner of goods, which are stowed on the main deck of a pro- 
 peller and necessarily cast overboard by the direction of the master, to preserve the 
 vessel and crew, is therefore entitled to the benefit of a general average, as much as the 
 owner of goods, that are stowed in the hold, would be under like cu'cumstances." 
 
 1 See ante, p. 18fi, n. 1. 
 
 2 See ante, p. 185, n. 5. 
 
 8 In Gould V. Oliver, 4 Bing. N. C. 134, Tindal, C. J., said: "Now, where the 
 loading on deck has taken place with the consent of the merchant, it is obvious that 
 no remedy against the ship-owner or master for a wrongful loading of the goods on 
 
 deck can exist Unless, therefore, the owner of the timber in this case, has a claim 
 
 for contribution against the owner of the ship, he is without any remedy whatever 
 against any one, but must himself bear the whole of the loss in consequence of his 
 timber having been thrown overboard for the benefit of all ; an inference directly at 
 variance with the general rule above laid down, and, indted, contrary to the authority 
 of the foreign writers." This language is susceptible of two meanings ; either, that 
 the owner of goods shipped on deck with his consent, and jettisoned, has a claim for 
 an average contribution against the owner of the ship, though not against the other 
 shippers ; or the words, " in this case," may refer to the case before the court, in 
 which the only question involved was, whether the shipper could claim contribution in 
 case the ship-owner loaded the goods on deck under a privilege reserved to him by the 
 general usage and practice of the voyage. This latter view is favored by the fact, that 
 immediately after stating that the inference, that the owner of the goods was v,'ithout a 
 remedy, was contrary to the authority of the foreign writers, he cites Valin to the 
 effect that the general rule relating to goods on deck does not apply to boats and other 
 small vessels going from port to port, " where the usage is to load merchandise on the 
 deck." If, however, the first construction be correct, it is not supported bj- any case 
 in England, and is certainly opposed to numerous decisions in this country. Sec Law- 
 rence V. Minturn, 17 How. 100, and other cases cited, p. 185, n. 5.
 
 en. IX.] VOLUNTARY SACRIFICE OF PROPERTY. 309 
 
 may be more difficult, and is not, perhaps, positively settled by 
 authority. We should say, however, even then, that a jettison 
 gave no claim on the cargo below deck, on the ground that the 
 law-merchant would not give this sanction to a procedure which 
 k deems very dangerous and objectionable. But the usage 
 would probably have the effect of giving him a claim upon the 
 ship.^ 
 
 1 It was held in an early case in this country, Brown v. Comwell, 1 Root, GO, de- 
 cided in 1773, that where horses shipped on decli were thrown overboard for tlie safety 
 of the ship and cargo, the owner of the horses was entitled to a general average con- 
 tribution, it being the universal custom to ship horses in that wa}-. This case has not 
 been followed by any subsequent authority in this country. Dodge v. Bartol, 5 Grcenl. 
 286; Cram v. Aiken, 13 Maine, 229; Sproat v. Donnell, 26 Maine, 185; Barber v. 
 Brace, 3 Conn. 9 ; Hampton i\ Brig Tliaddeus, 4 Mart. La. 582. In the case of the 
 Taunton Copper Co. v. Merchants Ins. Co. 22 Pick. 108, the question arose whether 
 underwriters were liable for copper stowed on deck in conformity M-ith a usage, the 
 policy being "on property (copper or zinc) on board any vessel or vessels," between 
 given dates. It was proved that a usage h.id existed for forty years to carry goods 
 on deck which were not liable to be injured by dampness, and that copper and zinc 
 were of this class. Mr. Justice Putnam, in delivering the opinion of the court, said : 
 " Tlie general rule seems to be well established. The plaintiff must show that his case 
 comes within the exception, or, in other words, that the defendants have assumed the 
 risk of the goods on deck. They prove that it is usual to carry goods on deck, but 
 fail to prove that underuTiters have ever paid for them, unless there was an express 
 undertaking, or one by necessary implication. The former is not suggested, and it 
 seems clear, that no inference could have been drawn from the nature of the goods 
 which were named to subject the defendants, by implication, to any other risk than is 
 assumed upon property generally, or ordinary goods." Mr. Phillips, in his valuable 
 work on Insurance, vol. 1, § 460, remarks that the decision that a usage to pay for the 
 goods when carried, as well as a usage to carry them, must be proved, " is quite a 
 questionable form of presenting the rule." In Da Costa r. Edmunds, 4 Camp. 142, 
 insurance was effected " on forty carboys of vitriol." Tiiej' were shipped on deck, 
 and during the voyage were thrown overboard for the safety of the ship. It was 
 proved that tliey were frequently carried on deck, but that it was also usual to stow 
 them below. It was contended for the underwriters that they were not liable because 
 no notice had been given them of tlie manner in which the carboys were to be carried, 
 but Lord Ellenhoroiyli held that if there was a usage to cany vitriol on deck, the un- 
 derwriters were bound to take notice of it, witliout anj' communication. The jury 
 found for the plaintiff. See also the same case in Banc. 2 Chitt. 227. The point 
 next arose in England in a case between a shipper and ship-owner. Gould v. Oliver, 
 4 Bing. N. C. 134. The action was against the ship-owner to recover damages for a 
 loss arising from improper stowage, and also a general average loss for goods belong- 
 ing to the plaintiff which had been shipped on deck on a voyage from Quebec to 
 London. The second count set forth a custom that the owners of sliips trading 
 between Quebec and London, had a right of loading on the decks of their vessel a 
 portion of the timber which they were employed to carry. The plea admitted the 
 usage to carry timber in the manner mentioned, but denied that any custom existed to
 
 oJO ON THE LAW OF SIIirPIXG. [BOOK I. 
 
 The owners of a vessel who collect the contributory shares 
 are entitled to a commission of two and one half per cent.^ 
 
 SECTION III. 
 
 OF SOME EXPENSES OR CHARGES TSUALLY SETTLED AS GENERAL 
 
 AVERAGE. 
 
 • 
 
 There are some losses or expenses which are always settled in 
 the same way as a general average loss, and are usually called 
 by that name for convenience, although they do not fall precisely 
 within any definition of it. Salvage is the principal one of 
 these. We shall see that this word has two meanings. It is 
 
 pay a general average contribution upon timber so laden and jettisoned. To this plea 
 the plaintiff demurred and issue was joined on the demurrer. The court held that the 
 plaintiff was entitled to recover. This case was supposed by the court in Taunton 
 Copper Co. v. Merch. Ins. Co., iit supra, to go only to the extent of holding that the 
 owner of the ship was liable, in such a case, to contribute, and not the owners of the 
 cargo ; but it appears from a report of the same case at a further stage of proceedings, 
 that all the cargo was owned by the plaintiffs, and the question therefore did not arise. 
 Gould r. Oliver, 2 Man. & G. 208, 2 Scott, N. R. 241. In Hurley v. MilwarJ, 1 
 Jones & Carey, Irish Exch. 224, an action was brought against the owners of a vessel 
 for a general average contribution for the loss of certain pigs, which were shipped on 
 deck, on a voyage from Waterford to London, and were jettisoned for the safety of the 
 vessel. Judgment being given for tlic plaintiff, the ship-owners sued their underwriters 
 for the amount thus paid by them, and, after an elaborate argument before the court of 
 Queen's Bench, it was held that as the carrying of the pigs on deck was justified by the 
 usage of the trade, the underwriters were responsible. Milward r. Hibbert, 3 Q. B. 
 120. Valin, also, in his commentary on the Ordinance of Louis XIV. liv. 3, tit. 8, 
 art. 13, remarks, upon the rule there laid down, that "this disposition does not apply 
 to small vessels going from port to port, where a usage exists of stowing their lading 
 as well above as under deck." See also the learned note of Sergeant Shee, upon this 
 subject, Abbott on Shipping, p. 481 . 
 
 1 Barnard i'. Adams, 10 How. 270, 308 ; Sturgis v. Gary, 2 Curtis, C. C. 382. The 
 language of the court, in Barnard v. Adams, would imply that the right to charge this 
 commission rested on the custom of average brokers ; but in Sturgis v. Gary, Mr. Jus- 
 tice Curtis stated that he had obtained a copy of the record in that case and found that 
 no evidence of any usage was offered, and that the presiding judge instructed the jury, 
 as matter of law, that the charge was correct, wliicli ruling, being excepted to, was 
 sustained by the Supreme Court. He accordingly held, that a usage in the city of 
 Boston not to allow such charge, was not admissible to contravene the general rale of 
 the law-merchant.
 
 en. IX.] EXPENSES USUALLY SETTLED AS GENERAL AVERAGE. 311 
 
 sometimes used to indicate what is saved from a wreck ; but in 
 this sense we do not refer to it now. The word more frequently 
 means the amount that is paid to those who save maritime prop- 
 erty which is endangered or abandoned; and such persons are 
 called, in maritime law, salvors. This amount is usually decreed 
 in admiralty in the form of a percentage on all the property 
 saved. Sometimes, however, it is a gross sum given to the 
 salvors. In either case it is settled in the same manner as a 
 general average claim, and usually under that name.^ Where- 
 ever any expenses or advances are to be contributed for, we sup- 
 pose that the common rules of law in regard to interest would 
 determine whether it should be charged.^ 
 
 On the other hand, damage by collision, which is a frequent 
 sea peril, is not settled as an average loss,^ but according to 
 principles stated elsewhere.'* It should, however, be said, that 
 a collision may give rise to expenses for the common bene- 
 fit, in the delay or deviation necessary for repair, or other- 
 wise, and, in this country at least, such expenses would be 
 averaged.^ 
 
 Bills of lading often contain a clause requiring payment, in 
 addition to freight, of " primage and average accustomed." 
 This means a kind of composition established by usage for 
 
 1 Heyligcr v. N. Y. Firemen Ins. Co. 1 1 Johns. 85 ; Stevens & Benccke on Av. (PhiL 
 ed.), 141, note. In Peters v. Warren Ins. Co. 1 Story, 4G3, 468, Mr. Justice Stoiy 
 stated the law as follows : " General average is commonly understood to arise from 
 some voluntary act done, or sacrifice, or expense incurred, for the benefit of all con- 
 cerned in tiie voyage or adventure ; and then it is apportioned upon all tlie interests 
 which partake of the benefit. B?it the mere fiict, that an apportionment is made of a 
 loss between the different parties in interest, if the loss itself does not arise from some 
 act done, or sacrifice, or expense voluntarily incurred, for the common benefit, does 
 not make it necessarily a case of general average by our law. Salvage is properly a 
 charge, apportionable upon all tiie interests and property at risk in tlie voyage, which 
 derive any benefit therefrom. But, althougli it is often in tlic nature of a general 
 average, it is far from being universally true, that, in the sense of our law, all salvage 
 charges arc to be deemed a general average. On tlic contrary, these charges arc some- 
 times a simi)le average, or partial loss. Wo must, therefore, look to the particular cir- 
 cumstances of the case to ascertain, whether it be the one or the other." 
 
 2 See Sliolton v. Brig Mary, 6 Law Reporter, 75, and the remarks of Mr. Justice 
 Story in Peters v. Warren Ins. Co. 1 Story, 46.3, 468. 
 
 8 Peters v. Wairen Ins. Co. 3 Sumner, 389; Emcrigon, ch. 12, s. 14, note 1 (Mere- 
 dith's ed.), p. 328. 
 * See ante, ch. 7, § 6, on Collision, p. 187-211. 
 6 Peters v. Warren Ins. Co. 3 Sumner, 389, 392.
 
 312 ON THE LAW OF SHIPPING. [bOOK I. 
 
 sundry small charges, which were formerly assessed by way of 
 average ; such as port charges, pilotage, and the like.^ And 
 there are still sundry small charges usually or frequently assessed 
 as average, and of course paid for by contribution ; but in regard 
 to many of them there is probably no established usage or rule 
 of law. The principal of these are towage,^ light money, dock- 
 age, and wharfage,^ hire of anchors, cables, or boats for tem- 
 porary purposes, or of persons to guard the ship, quarantine ex- 
 penses, cutting a way through ice, and similar charges. 
 
 SECTION IV. 
 
 THAT TUE SACRIFICE MUST BE JUSTIFIED BY A NECESSITY. 
 
 We will now consider the second essential of general average ; 
 which is, that the logs or sacrifice must be necessary, or justified 
 by a reasonable probability of its necessity and utility. Cases 
 involving this question are very rare, but the reason of the rule 
 is perfectly obvious ; for such a sacrifice without a necessity, real 
 or apparent, is simply a foolish or wicked destruction of property, 
 which he who causes it must respond for, and which cannot give 
 the suffering party any claim upon any other party, whom it 
 neither benefited nor was likely to benefit.^ 
 
 1 See post, ch. 11, § 1. 
 
 2 Lyon V. Alvord, 18 Conn. 66. 
 
 2 See Wightman v. Macadam, 2 Brev. 230. 
 
 * The Gratitiulinc, 3 Rob. Adm. 240, 258. Mr. Justice Curtis, in Lawrence v. Minturn, 
 17 How. 100, 110, speaking of the necessity which would authorize the master to make a 
 jettison, said: "If he was a competent master; if an emergency actually existed call- 
 ing 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, be- 
 cause the person, to wliom the law has intrusted authority to decide upon and make it, 
 has duly exercised that authority." On the other hand, there is a dictum by Coulter, J., 
 in Myers v. Baymorc, 10 Barr, 114, 118, to the effect that if the goods are thrown over- 
 board unnecessarily by the master, although he acts with the most honest intention to 
 save the vessel, there is no claim for general average. Although this is the law relative 
 to the power of the master to sell the vessel, we should doubt its applicability to the
 
 en. IX.] SACRIFICE MUST BE JUSTIFIED BY A NECESSITY. 313 
 
 In former times the law-merchant guarded with much care 
 against wanton or unnecessary loss of this kind; particularly 
 by requiring that the master should formally consult his officers 
 and crew and obtain their consent before making a jettison of 
 the cargo.i But the rule has passed away, and the practice is 
 almost unknown.^ An inquiry into this change, so far as it is 
 grounded upon a change in the character of sailors, or in the 
 view which the law-merchant takes of them, might not be with- 
 out its interest; but this is not the place for it. It is now uni- 
 versally conceded that the interests of commerce require a plen 
 ary authority on the part of the master, who would seldom 
 think of consulting his crew in any emergency, and is not 
 required by law to do it. Our statutes speak in some cases, as 
 will be seen in a later chapter,-^ of a joint action of the crew 
 and the officers of a ship, but even this seldom occurs in fact. 
 
 case of a jettison. In Lawrence v. Minturn, supra, the vessel had met with a gale and 
 was severely strained by the weight of tlie deck load. After the gale abated, and when 
 the sea was calm and the vessel in no immediate danger, the master, officers, and crew 
 made a protest, setting forth the above facts and asserting that the deck load was un- 
 safe, and that it should be thrown over as soon as possible. This was accordingly done. 
 It appeared that the goods were of such a nature tliat they could not be thrown over- 
 board, without the greatest risk, when there was any consideral)le sea. It was lield, that 
 the jettison was justifiable. The court said : "Precaution against dangers, which are 
 certain to occur, is surely proper. That they must experience gales and heavy seas at 
 that season, in that voyage, was so nearly certain, that it was not unreasonable to act 
 on the assumption that tliey would occur, and prepare the ship to encounter them while 
 in a smooth sea, when alone they could do so." In Bcntley v. Bustard, IG B. Mon. 
 643, it was held, that if a boat runs on a known obstruction, or upon the shore, with- 
 out being driven on by the violence of the wind or tlie force of the current, and the 
 running on could have been prevented by proper care and skill, a jettison will not be 
 justified, although, the boat being on, it is tlie only way of getting her off, but the 
 owners of the boat are liable for the value of the goods thus thrown overboard. So if 
 the unseaworthiness of the vessel at the time of sailing on the voyage caused, or con- 
 tributed to produce, the necessity for the jettison, the loss is not within the exception of 
 the perils of the seas, and the vessel is liable for the whole value of the goods tlu'own 
 overboard. Dupont de Nemours ;•. Vance, 19 How. 162, 1G6. See also, Lawrence r. 
 Minturn, 17 How. 100, 110; Chamberlain v. Kecd, 13 Maine, 357. 
 
 1 See authorities cited in Emerigon, ch. xii. sect. xl. (Meredith's ed.), p. 409, 470; 
 and in The Nimrod, Ware, 9. 
 
 - Birkley v. Presgrave, 1 East, 220, 228 ; Sims v. Gurney, 4 Binn. 513 ; Col. Ins. Co. i-. 
 Ashby, 13 Pet. 331, 343 ; Nimick v. Holmes, 25 Penn. State, 366, 372. It is the duty 
 of the master to determine when it is necessary to sacrifice a portion of the cargo for 
 the safety of the rest, and, as a general principle, the crew have no authority to make a 
 jettison, without his orders. The Nimrod, Ware, 9, 15. 
 
 ' See post, ch. 12, § 4. 
 VOL. I. 27
 
 314 ON THE LAW OF SHIPriNG. ' [BOOK I. 
 
 Indeed, a consultation with the crew is now so wholly nnnsual, 
 that if it took place it might be regarded as one of those circum- 
 stances of extra precaution, which suggest the probability of 
 fraud.^ 
 
 SECTION V. 
 
 THAT THE SACRIFICE MUST BE SUCCESSFUL. 
 
 The third essential is, that the sacrifice must be successful. 
 The reason of" this, also, is perfectly obvious. That which is 
 not saved, is in no way benefited by the sacrifice, and, therefore, 
 in no way under the implied obligation of compensating for it. 
 The cases which raise this question are not numerous.^ It is 
 said, however, as a consequence of this rule, that where there is 
 delay or deviation for repair, and the wages and provisions ex- 
 pended,^ or the necessary expenses there incurred,'* or the repairs,^ 
 would constitute a general average loss, they cannot have this 
 
 1 Emerigon (ch. xii. sect, xl., Meredith's ed., p. 469), cites a remark of Targa, to 
 the effect tliat during the sixty years that he had been judge of the Cousulat de la Mer, 
 at Genoa, he had met with only four or five instances of regular jettison ; and these 
 were suspected of fraud, for the single reason that formalities had been too much 
 attended to. "When a consultation is had, it is merely evidence that the jettison was 
 deliberately made, but it does not prove the necessity of it. Bentley ik Bustard, 16 B. 
 Mon. 643, 695. 
 
 - Scudder v. Bradford, 14 Pick. 13 ; Bradhurst v. Col. Ins. Co., 9 Johns. 9 ; Gray v. 
 "Wain, 2 S. & R. 229, 255 ; Sims v. Gurney, 4 Binn. 513, 524. If the vessel is temporarily 
 saved by the sacrifice it would seem that contribution is due, although the vessel is 
 aften\'ards lost, but if the peril which rendered the sacrifice useless was the same peril 
 which was the occasion of the sacrifice, the loss must rest where it falls, as where the 
 masts, which were on fire at the time, were cut away with the expectation that they 
 would fall overboard and tlius save the ship and cargo, and a spar fell through the deck 
 and set fire to the cargo, wLereby both it and the ship were partially consumed. Lee 
 V. Grinnell, 5 Duer, 400, 422. 
 
 3 Williams v. Sufiblk Ins. Co., 3 Sumner, 510, 513, 514. • 
 
 * Nelson v. Belmont, 5 Duer, 310, 325. It was said, in this case, that where the ex- 
 penses were incurred with a ■view to decide in regard to the resumption of the voyage, 
 they might perhaps be a subject of contribution, and so, where the vessel had been 
 scuttled to save the cargo fi-om destruction by fire, if the cargo had been afterwards 
 taken out in order that the water might be pumped out. 
 
 5 Myers v. The Harriet, U. S. D. C, East. Dist. Peun., 2 Wharton's Dig. p. 48, tit. 
 Ins. 140.
 
 en. IX.] SACRIFICE MUST BE SUCCESSFUL. 315 
 
 effect unless by means of the repair the ship is enabled to re- 
 sume her voyage. For the whole ground on which contribution 
 can be claimed for such expenses, is, that they were needed and 
 effectual for enabling the ship to go herself and carry the cargo 
 to the original destination ; for on no other ground can it be 
 said, that these expenses were intended for the common good, or 
 resulted in the common benefit. 
 
 If, therefore, we suppose a case of capture^ wrongful or other- 
 wise, and the crew, or a part, rescue and bring off the ship, one 
 of two results will follow. Either the voyage will be resumed 
 at once, or after repair and refitting, and, perhaps, after a return 
 home, and then the expense of all this may be averaged. Or 
 else the voyage will be broken up and abandoned, and the ship, 
 though she returns home, is under no favorable circumstances 
 for resuming her voyage, and perhaps no possibility of doing so; 
 and in this case no expenditure, occurring after the capture, can 
 be averaged, for none of it wa& successful. ^ 
 
 If any portion of the cargo is rescued with the ship, and brought 
 home to its owners, so far as this is concerned the rescue may 
 be successful, and the cargo saved would be bound to contribute 
 towards that part of the expense which was incurred for its 
 benefit in common with that of the ship and freight. In refer- 
 ence to what constitutes a breaking up of the voyage, rendering 
 its resumption impossible, and thus extinguishing all claim for 
 general contribution, it has been held, that a sale of the ship by 
 decree of court for salvage, is such breaking up of the voyage, 
 rendering an abandonment of the same inevitable.^ Sometimes, 
 h'owever, expenses are settled upon the princijjles of general 
 average which more properly, perhaps, should be determined by 
 the question of agency. In such a case contribution is made, 
 though the voyage be afterwards broken up.^ 
 
 1 Williams v. SufTolk Ins. Co., 3 Sumner, 510, 513,514. 
 
 - Williams v. SulFolk Ins. Co. supra. 
 
 ^ Tims Mr. Stevens, in his woik on General Average (Pliillips' ed.), p. 74, savs : "It 
 will occur to every one in the habit of considering questions of this nature, that there 
 is an essential diftcrenec between a claim for Justittiiion and one for liicoiiipense. In 
 the former fase, e. g. in that of jettison, if at any subsequent period of the voyage the 
 remainder of the cargo be lost, there is no claim to replace that ])art which was jetti- 
 soned, — and the same if the shiji be lost before the articles sacrificed were replaced. 
 But in the case of expenses incurred with a view towards the general benetit, it is clear
 
 316 ON THE LAW OF SHIPPING. [bOOK I. 
 
 SECTION VI. 
 
 WHEN THE THING SACRIFICED COULD NOT HAVE BEEN SAVED. 
 
 There is another class of cases which should be noticed ; that 
 where the very thing which is purposely destroyed in order to save 
 other things, could not in any way be saved, but must have 
 perished at all events. Here there is no claim for contribution ; 
 because, properly speaking,- the thing was not destroyed, but 
 only its destruction somewhat hastened. This principle is the 
 same with that already stated as governing in the case of a vol- 
 untary stranding ; which gives a claim only when there was a 
 substantial chance of saving the ship. A good illustration of 
 the rule is found in the case where a vessel, laden with lime, 
 was hauled out into the stream and there scuttled because the 
 lime was on fire. Here the lime was destroyed at once ; but it 
 must have perished, although much more slowly, if the ship had 
 not been saved ; and, therefore, the ship did not contribute 
 towards the loss.^ But generally where a cargo is on fire from 
 
 that they ought to be made good to the party, whether he be an agent employed by the 
 master in a foreign port, or the ship-owner himself. The former is a case lying strictly 
 within the adventure ; for if a part be sacrificed, and the remainder be lost, the whole 
 is lost. But in the latter case, the expenses are extraneous, and were incurred under an 
 implied obligation of indemnity on all the parties, — which is one of the duties each of 
 the parties who are joined in a sea adventure takes upon himself." See also, 2 Phillips 
 on Ins. § 1319; Spaflford v. Dodge, 14 Mass. 66, 77. 
 
 1 Crockett v. Dodge, 3 Fairf. 190. This case proceeds entirely on the ground that 
 the lime, at the time the vessel was scuttled, was worthless, and, therefore, does not 
 differ from the principle, before laid down, that goods are to be contributed for only at 
 the value they had at the time of the sacrifice. Nickerson v. Tyson, 8 Mass. 467. 
 See, however, the remarks of Mr. Justice Story, in Col. Ins. Co. v. Ashby, 13 Pet. 
 331, 340. In Marshall v. Garner, 6 Barb. 394, a claim was made for contribution for 
 masts, which had been cut away. At the time they were sacrificed, the ship was on a 
 beach in four feet of water, while she drew fifteen. She was on her broadside, where 
 she lay on her bilge. If the masts had not been cut away, the ship and cargo would 
 have been lost, and all on board would have perished. As soon as the masts were cut 
 away the vessel righted, and the cargo was saved. It was held, that there could be no 
 contribution, because, at the time the masts were cut, their destruction, from already 
 existing causes, was only anticipated, and that nothing, therefore, was sacrificed. This 
 question was discussed at great length in the recent case of Lee v. Grinnell, 5 Duer, 400.
 
 CH. IX.] THIXG SACRIFICED COULD NOT HAVE BEEN SAVED. 317 
 
 an accidental cause, and the vessel is scuttled, or water is poured 
 down to extinguish the fire, and goods are thereby injured which 
 thefire had not reached, they are to be contributed for.^ 
 
 A somewhat similar question has arisen, when not that pre- 
 cise thing, but that or some other must be lost, which has been 
 supposed to present some difficulty, but which, as it seems to us, 
 is open to a direct and certain answer. Benecke, a high au- 
 thority for the most part, says : " If the master's situation were 
 such, that but for a voluntary destruction of a part of the vessel, 
 or her furniture, the whole would certainly and unavoidably 
 have been lost, he could not claim a restitution, because a thing 
 cannot be said to have been sacrificed, which had already ceased 
 to be of any value." ^ A rule like this, would exclude from aver- 
 age precisely those cases to which it is most frequently applied, 
 and concerning which no doubt 4ias ever arisen. 
 
 Suppose a ship is on a reef; if not lightened, her destruction 
 and that of the cargo, are perfectly inevitable ; but if lightened 
 she may be got off"; some of her cargo is thrown over, and she 
 is got oif, and the ship and the rest of the cargo saved. We know 
 that the law-merchant has given contribution here for some 
 three thousand years. Or, suppose a ship anchored in a tempest 
 off a lee shore ; she drags her anchors, and must inevitably be 
 wrecked and lost with her cargo unless the force of the wind 
 upon her is lessened ; accordingly her masts are cut away, and 
 they with all her top-hamper are cast overboard and lost ; and 
 then she is able to ride out the gale in safety. Could any one 
 doubt that this would be an average loss ? This theory or prin- 
 ciple of Benecke's rests upon a mere mistake or misstatement. 
 It is true and generally admitted, that if a thing is destroyed for 
 
 The rigging and upper spars of the vessel, which was lying at a wharf, were on fire. 
 The firemen refused to work on hoard or near the sliip for fear of the blocks, and other 
 articles, which were on fire aloft, fiiUing on thcni. For tlie purpose of saving tlie ship 
 and cargo the masts were cut away. Assuming that the purpose was acconijilishcd, 
 the court were divided on the question whether tlie masts were to be contributed for, 
 Mr. Justice Diier holding, tiiat they were not, Mr. Justice Hoifman being of a contrary 
 opinion, and jMr. Justice Cdinjilull declining to express his views upon the subject. 
 
 1 Nelson v. Belmont, 5 Duer, 310, 32.3 ; Lee v. GrinncU, 5 Duer, 400. In Nimick r. 
 Ilolmcs, 25 Penn. State, 3G6, tlic distinction between the goods already on fire and the 
 rest of the cargo was not noticed, and it was held that all which were damaged by water 
 were to be contributed for. 
 
 2 Stevens & Benecke on Average, Phil. ed. 110. 
 
 27*
 
 318 ON THE LAW OF SHIPPING. [BOOK I. 
 
 the benefit of others, which thing could not possibly have been 
 saved, it is no sacrifice, and not an average loss. But it is also 
 true, that if there be a number of things together, all of which 
 must perish unless some one of them is voluntarily destroyed, 
 none of them are exposed to inevitable destruction. Each has 
 the chance or certainty of escape if it can prevail on another to 
 perish ; and this is precisely the ground of general average. It 
 is as if all must be lost, — say by capture, — unless a certain 
 sum be paid. 
 
 It would be absurd to say all must be lost, and therefore if the 
 sum be paid they shall not repay it ; because all need not be 
 lost provided that sum be paid. If instead of paying a sum of 
 money, the voluntary surrender of a part of the property would 
 have the same effect, this would, on the one hand, be the same 
 thing in principle as the redemption by payment of money; and 
 on the other, it would be, in principle, the very case which 
 Benecke's rule would exclude from average. It is true that in 
 words he confines his rule to the ship and her appurtenances, but 
 if it rests on any principle whatever, that must apply equally to 
 all property saved from a common risk by a sacrifice of part. 
 
 SECTION VII. 
 
 WHETHER THE PROPERTY IN PERIL AND RESCUED MUST BE SAVED 
 BY THE SACRIFICE. 
 
 Still another question has arisen which should be considered 
 under this head, of the necessity that the sacrifice should be 
 effectual, in order to become an average loss. This question is, 
 if there be a sacrifice for other property, and that other property 
 is saved, must it also appear that it was saved by the sacrifice^ 
 or, in other words, would have been lost without it, in order to 
 entitle the owner of the property sacrificed to contribution. For 
 example, we will suppose a vessel anchored as before, and drag- 
 ging her anchors, and the masts are cut away, and then a sud- 
 den change of wind occurs and it blows off shore instead of on, 
 so that the hull and cargo are safe. Shall the cargo now con-
 
 en. IX.] PROPERTY PERILLED SAVED BY THE SACRIFICE. 319 
 
 tribute for the loss ? This question is more difficult than that we 
 have just considered, and the authorities in relation to it are not 
 quite uniform. 
 
 Upon the whole we think, however, that the weight of reason 
 agrees with what seems to us the weight of authority, that if 
 there be a voluntary sacrifice, made for good cause, and with a 
 reasonable prospect of saving thereby other property which 
 would otherwise be lost, and this other property is saved in fact, 
 it must contribute to the loss, whether it was saved by that or 
 by other means. One reason for this is, that the law-merchant 
 avoids intricate questions if it can, and prefers to settle them 
 by a general rule, which shall on the whole work justice ; and it 
 must be difficult, if not impossible, in most of these cases, to draw 
 the line, and say that up to this point the agencyand utility of 
 the sacrifice continued, and here other causes of safety began to 
 operate; or to decide that measures rationally and honestly re- 
 sorted to for the purpose of safety, and followed by it, had no 
 agency whatever in causing that safety. 
 
 Another reason is, that if a voluntary sacrifice of some prop- 
 erty for other property is made in good faith and for good reason, 
 an important part of the moral foundation for the claim for con- 
 tribution exists, although the other part, that the property was 
 in fact saved by that sacrifice, may not exist.^ 
 
 1 In Scuclder v. Bradford, 14 Pick. 13, a vessel was dragging her anchors, and drift- 
 ing towards shore. Her masts were cut away, and she was thereby brouglit up. An 
 hour afterwards she went on shore. It was held that tlie masts were not to be con- 
 tributed for because the property was not rescued from tlic peril by their destruction. 
 This is in accordance with the 9th article of the 22d Tit. of the Hamburgh Insurance 
 Law. See also, Ord. de la Mar. tit. du jet. art. 15; Code de Commerce, art. 423. In 
 Bencckc & Stevens on Average, by Phillips, pp. 100, 105-107, it is strongly contended 
 that this rule is contrary to the i)rinciples and policy of general average, on the ground 
 that no one has the right to attempt the preservation of tlie whole at tlie risk of an 
 individual. Mr. Phillips, in a note on page 107, says: "The doctrine of the American 
 cases agrees with tliat laid down in England, namely, that to entitle the parts to con- 
 tribution for a sacriticc by jettison, the impending peril must be avoided. But the 
 reasons given by Mr. Bcnecke in.opposition to this doctrine, are certainly very forcible, 
 and to my mind conclusive."
 
 320 ON THE LAW OF SDIPPING. [BOOK I. 
 
 SECTION VIII. 
 
 OF CONTRIBUTION FOR A GENERAL AVERAGE LOSS. 
 
 We proceed now to consider the question, what property con- 
 tributes, and on what principle contribution is made, in a case 
 of an ascertained general average loss. 
 
 The rule, in the first place, is, that all the interests for which 
 the sacrifice is made, and which are actually saved, contribute, 
 and none other. If property be saved for a time, by a sacrifice, 
 jettison for example, which lightens a stranded ship so that she 
 gets off and pursues her voyage, and afterwards, before reaching 
 her port, another disaster destroys one half of the goods saved 
 from the former peril, it is this half only which is finally saved 
 that contributes.! 
 
 Maritime interests may all be ranged under one or other of 
 these divisions, the ship, the cargo, and the freight. 
 
 In regard to the contributory value of the ship there has been 
 much difficulty, and there is not now any uniformity of prac- 
 tice. The ancient codes prescribed certain rules which have 
 long since fallen into disuse.^ The principle which may now be 
 considered as universally adopted, is this; the ship shall con- 
 tribute for the whole of the value which it had at the time to 
 which the apportionment refers.^ For some purposes this is held 
 to mean the time of the loss;* but, as a general rule, we think 
 not only that the contributory interests are those which are saved, 
 but that the contributory value must be their value when saved, 
 and this must be their value when they arrive safely in port.^ 
 
 1 Gray v. Wnln, 2 S. & R. 229, 255, per TiJghnan, C. J. ; Dig. 14, 2, 4, 1 ; Boulay Taty 
 tome iv. p. 443. 
 
 '■2 These are collected by Mr. Stevens ia his valuable essay on General Average. See 
 Stevens & Benecke on Av., Phil. ed. p. 211. 
 
 3 Clark V. United F. & Mar. Ins. Co. 7 Mass. 365 ; Simonds v. White, 2 B. & C. 
 805. 
 
 * Douglas V. Moody, 9 Mass. 54S ; JIutual Safety Ins. Co. r. Cargo of the Ship 
 George, Olcott, Adm. 157. 
 
 6 In Simonds v. White, 2 B. & C. S05, Ahhott, C. J., said : "But in one point all" 
 (nations) "agree; namely, the place at which the average shall be adjusted, which is
 
 CH. IX.] CONTRIBUTION FOR A GENERAL AVERAGE LOSS. 321 
 
 But there is much difficulty in applying this principle. Even if 
 the value of the ship when she sailed can be ascertained, this is 
 seldom the very same, and may be widely difTcrcnt from, her 
 value at the time of the loss. There has been already some dis- 
 position in some of our states to adopt one of those rules, of 
 which the law-merchant has many, which seem to be arbitrary, but 
 which are in fact founded upon the average of cases, and work 
 well on the whole, although specially adapted to none ; and by 
 this rule one fifth of her value when she sailed is deducted.^ 
 It would seem, however, that even in these states, this rule is 
 not applied when the value can be ascertained more exactly. 
 So, too, where there is an actual sale of the shij), this has been 
 taken as fixing her contributory value.^ In most cases it would 
 do so with sufficient accuracy; but it is obvious that the price 
 might be affected, in either way, by extraneous circumstances, so 
 as not to be an adequate measure of her value. On the whole, 
 in the present state of the law, we cannot perhaps say more, 
 than that the principle above stated should be applied by ascer- 
 taining the value of the ship at that time, by the best evidence 
 obtainable.^ The value, as given in a policy of insurance on 
 the ship, is not to be taken if that value is incorrect.^ 
 
 One remark may be made as to all contributory values. It is, 
 that the amount to be paid on account of any interest, by way 
 of contribution for any subsequent averages, or for any expenses 
 
 the place of the ship's destination, or delivery of her cargo." Sec also, Gillett v. Ellis, 
 11 111. 579. 
 
 1 Leavenworth v. Delafield, 1 Caines, 573 ; Gray v. "Wain, 2 S. & R. 229. This 
 rule has not heen adopted in Massachusetts. Spatford v. Dodge, 14 Mass. 60 ; Doug- 
 las V. Moody, 9 Mass. 548. 
 
 2 Bell V. Smith, 2 Johns. 98; Lcc v. Grinnell, 5 Duer, 400, 429. But see Mutual 
 Safety Ins. Co. v. Cargo of the Ship George, infra. 
 
 ^ In Mutual Safety Ins. Co. v. Cargo of the Ship George, Olcott, Adm. 157, 
 where this whole subject was considered at great length, the court held tliat the value 
 of the ship at the port of departure was to be taken, making a reasonal)lc allowance 
 for wear and tear, and that tliis deteriorated value inust be proved by evidence. Bttts, 
 J., said : " Tiicre would manifestly be great conveniency in possessing a criterion 
 which should infallibly fix that amount ; but without the support oC notorious usage 
 and custom to an uniform scale of depreciation of a vessel by jicrforming the whole or 
 any portion of her voyage, it must be sheer conjecture with the court to pronounce 
 that the abatement of one fifth, or one half, or any other aliquot of the value of the 
 ship when sound, a reasonable measure of its worth at the time of loss." 
 
 * Meeker v. Kleram, 11 La. Ann. 104. See Slutual Safety Ins. Co. r. Cargo of Ship 
 George, supra.
 
 322 ON THE LAW OF SHIPPING. [bOOK I. 
 
 which are necessary for the ultimate safety of the property, must 
 first be deducted, because just so much has not been finally 
 saved, and may be considered as lost by the loss for which con- 
 tribution is made.i 
 
 Then, as to the contributory value of the cargo. If the goods 
 lost were such, that if not sacrificed, they would certainly have 
 arrived in a damaged state and with diminished value; this 
 diminished value shall be taken as that for which contribution 
 is made. But this is true only where such diminution in value 
 is certain ; where there is only a possibility, or a mere probability 
 of it, the value at the time of the loss is to be taken.^ 
 
 Goods on deck, although not to be contributed for, must them- 
 selves contribute, if saved by an average loss.-^ 
 
 If goods are jettisoned, and afterwards recovered, not their 
 whole value, but only so much thereof as is lost by the jettison 
 and damage thence arising, added to the expense of recovering 
 them, is to be contributed for."^ It may be added, that goods 
 jettisoned still belong to the owner, and a finder of them acquires 
 no title, except a lien on them for the salvage which may be 
 decreed in admiralty .^ 
 
 It was held by Magens,^ on what authority we know not, but 
 probably on the practice of his day, that goods which pay no 
 freight, should not pay average. But these things are perfectly 
 distinct, and it is generally said now that there is no such rule, 
 nor any reason for it. It is probable, however, that it means no 
 more than that the clothes, ornaments, and travelling baggage 
 of passengers should not be required to contribute ; nor are they 
 in practice at this day.' But there seems to be no good reason, 
 
 1 See ante, p. 320, note 1. 
 
 2 See Rogers v. Meclianics Ins. Co., 1 Story, G03, 609 ; Stevens &, Benecke on Av. 
 (Phil, ed.), 235, note (a). 
 
 3 Stevens & Benecke on Av. (Phil, ed.), 210, 248. 
 
 * The Ordinance, art. 22, tit. Du jet., says : " If the effects jettisofied are recovered 
 by the owners after contribution, they shall be bound to return to the master and those 
 interested, what they have received in the contribution, less the damage still remaining 
 to them from tl;e jettison and the expenses of the recovery." See also, Pothier on 
 Maritime Contracts, n. 136, Cushing's cd. 78 ; Molloy, book ii. ch. vi. § xvi. 
 
 5 Dig. 14, 2, 2, 8, and 14, 2, 8; Emerig. ch. xii. § xl. ; Molloy, book ii. ch. vi. 
 § xvi. In Tucker v. Cappes, 2 Rolle, 497, 498, Mr. Justice Dodrkhje said that the 
 owner of the goods might bring trover against the finder of them. 
 
 6 Vol. I. p. 62, s. 56. 
 
 ■^ 1 Magens, p. 62, 63. By the Roman law all the goods on board, including the
 
 CH. IX.] CONTRIBUTION FOR A GENERAL AVERAGE LOSS. 323 
 
 founded on principle, for excusing them. And Emerigon, who 
 thinks they should not be excused, gives for his opinion the 
 strong reason, that if travellers' trunks, containing just these 
 things, are jettisoned for the common safety, they are always 
 contributed for.^ 
 
 The books raise a question which has not occurred in practice, 
 whether goods of great value, as jewels, for example, are to be 
 contributed for at their full value, if jettisoned in ignorance of 
 their value. We should say that merely this ignorance can 
 make no difference ; but if they were cast over because of this 
 ignorance, and could have been, and would have been saved had 
 their value been known, and there was any thing in the usage of 
 merchants, or in the nature of the goods, which made it a duty 
 on the part of the shipper to declare what they were, and espec- 
 ially if the concealment were in any way fraudulent on his part, 
 their full value should not be contributed for. In such case, that 
 \vhich seems to have been the ancient rule might be api)lied ; 
 which was, only the value which the master might well suppose 
 the goods to have, should be contributed for.^ 
 
 Jewels and bullion always contribute if saved, however small 
 their bulk, in proportion to their value.^ So we think should 
 bank-notes ; unless it were plain that they could not have been 
 lost in fact, because sufficient precaution had been taken to 
 identify them, so as to recover their value if lost by wreck.^ 
 
 baggage, wearing apparel, rings, etc., were made liable to contribute. Dig. 14, 2, 2, 2. 
 See also, 2 Molloy, ch. vi. § 14. Both in England and this country the practice is as 
 stated in the text. See Abbott on Shii)ping, 503 ; Stevens & Benecke on Av. (Phil, 
 ed.), p. 206, 251 ; 2 Phil, on Ins. § 1394. 
 
 1 Ch. xii. sect. xlii. (Meredith's ed.), p. 495. 
 
 - See 2 Molloy, ch. vi. ^ l&; Park on Ins. ch. vii. p. 176 ; Ordonnancc de Wisbuy, 
 art. 41, 43; Cleu-ac, p. 44; Emerigon, ch. xii. § xlii. (Meredith's ed.), p. 497; I 
 Magens, 63. 
 
 3 Bevan v. Bank of the United States, 4 "Wliart. 301 ; Nelson r. Belmont, 5 Ducr, 
 310 ; Dig. 14, 2, 2, 2 ; 1 Magens, p. 62 ; Park on Ins. p. 175 ; Peters v. Milligan, before 
 Mr. Justice Buller, id. 178 ; Millar on Ins. 344, 345. Lord Karnes, in his work on the 
 "Principles of Equity," p. 116, admits this to be the rule, but contravcrts its propriety. 
 See also, Weskett on Ins. p. 130, 131. 
 
 * Weskett, tit. Contribution, n. 15, citing 2 Valin's Com. 200, classes bills with 
 money, jewels, etc., as articles that ought to contribute, but Mr. Phillips very justly re- 
 marks, that "these are not so properly actual property, to the amount promised to be 
 paid, as the evidence of demands, wliich evidence may be supplied by other, in case of 
 their being lost, if sufficient precautions are taken by the holder to prove wliat particu- 
 lar notes they were, this circumstance sufficiently distinguishes them from specie or
 
 324 ON THE LAW OF SUIPPING. ("BOOK I. 
 
 But we doubt whether the mere fact that a holder might take 
 such precautions, should, of itself, exempt them from contribu- 
 tion. Government property was once considered as exempt 
 from contribution,! but never, we think, in England, and cer- 
 tainly not now, either there or here.^ It would seem that pro- 
 visions, unless they form a part of the cargo, are put on board 
 for consumption, and are exempt from contribution.^ 
 
 Formerly, slaves were contributed for according to their 
 value ; * but it is believed that no court would now sanction 
 the jettison of them as merchandise.^ At the same time, if 
 saved as property, there might be reasons for requiring them to 
 contribute ; and this has been so held.^ Neither passengers nor 
 crew are called on to contribute for their personal safety." Nor 
 
 other property, which is usually made to contribute." 2 Phil, on Ins. § 1397. It was 
 held, in the case of The Emblem, Daveis, 61, that bills of exchange, saved from a 
 wreck were not liable for salvage. And it would, therefore, follow that they would 
 not be bound to contribute in general average. 
 
 1 1 Magens, 172; Us et Coustumes de la Mer, 20 ; Jug. d'Oleron, c. 8, n. 8; Valin, 
 torn. II. p. 184, tit. Des Av. a. 11, n., thinks there is no reason for this exception. 
 
 2 Sec Brown i'. Stapyleton, 4 Bing. 119; United States v. Wilder, 3 Sumner, 308. 
 
 3 Emerigon, ch. xii. s. xlii. Meredith's ed. p. 493 ; Molloy, book 2, ch. vi. § xir. 
 In Brown v. Stapyleton, 4 Bing. 119, a claim was made by the owner of a merchant 
 ship for contribution by provisions, which were shipped by the English government for 
 the support of convicts, who were being transported. It was held that the claim could 
 not be maintained, on the ground that provisions for the crew and passengers were not 
 liable to contribute in any case. Mr. Phillips, in his Treatise on Insurance, vol. 2, § 
 1399, doubts the correctness of this decision. He says there is a plain distinction be- 
 tween a case where provisions are supplied by the ship-owner for the crew or for the 
 passengers, and one where they are furnished by a shipper, to be consumed by passen- 
 gers or animals transported for him. Because, in the former case the value of the pro- 
 visions reappears in the freight, and by this, contribution is made. 
 
 * Dig. 14, 2, 2, 2. Emerigon, ch. xii. sect. xlii. § 9, Meredith's ed. p. 497, says : 
 " Slaves being considered as chattels, it follows that the value of negroes on board a 
 trading vessel is subject to contribution : Res contrihutionem debent, in quibiis et servi ser- 
 vaii numemntur. But I do not think there would be a title to demand contribution for 
 a negro accompanying his master in the capacity of domestic servant. Such a one is 
 the faithful friend and companion of his owner." 
 
 s Mr. Gushing, in his valuable note to Pothier on Maritime Contracts, p. 14 7, says: 
 "It was formerly a question whether negro slaves might be thrown overboard to 
 lighten the ship ; but there is no doubt that such an act would now be considered homi- 
 cide. The civil law accounted slaves things ; but it never went so far as to comprehend 
 them under the general term merchandise." See also, Emerigon, ch. xii. sect. xl. § 5, 
 Meredith's ed. p. 472. 
 
 6 Barelli r. Hagan, 13 La. 580 ; Hunter v. Gen. Mut. Ins. Co. of N. Y., 11 La. Ann. 
 139. 
 
 '> Dig. 14, 2, 2, 2; Guidon, ch. v. art. 26; Cleirac, p. 45; Emerigon, ch. xii. sect.
 
 en. IX.] CONTRIBUTION FOR A GENERAL AVERAGE 'LOSS. 325 
 
 do the wages of mariners contribute;* an exception in the 
 books, of the case of the ransom from a pirate,^ has no founda- 
 tion in practice, and as little, we think, in reason. 
 
 As only the property endangered can be said to be saved by 
 the sacrifice, only that is called on to contribute. And if the 
 average loss is only an expense incurred, so much of this ex- 
 pense as was incurred for an especial object or interest, without 
 benefiting the rest, is to be borne by or charged to that interest 
 alone.'^ 
 
 The reason for these rules would extend to the case of goods 
 which had been involved in a common peril, but had been sepa- 
 rated and placed in safety, and afterwards a sacrifice made or 
 expenses incurred for the safety of what was left behind. We 
 must here, however, distinguish between cases which might 
 easily be confounded. No one would say, that if a cargo 
 were gradually saved, parcel by parcel, by continuous efforts, 
 causing a continuous expense, that each parcel should be marked, 
 and required to contribute only for the expense incurred about it, 
 or before its separation. And, although there might be some 
 considerable lapse of time between the delivery and safety of 
 different parts of the cargo, if it could fairly, or even by a liberal 
 construction, be considered that all were involved in a common 
 peril, and all were saved at different times and in different ways, 
 by efforts or expenses which consisted indeed of separable parts, 
 but of which the parts were so connected as to form a whole, in 
 that case they should all contribute.'* 
 
 • 
 xlii. § 8, Meredith's ed. 495; Brown v. Stapjleton, 4 Bing. 119 ; "Weston v. Train, 2 
 Curtis, C. C. 49, 59. 
 
 1 Potliicr on Maritime Contracts, Cusliing's ed., p. 72, n. 126; Emcrigon, ch. xii. 
 sect. xlii. § 7, Meredith's cd. 494 ; Consolato del Mare, e. 281, 293. 
 
 - Sec Pothicr and Emcrigon, as cited above. 
 
 3 In Peters v. Warren Ins. Co., 1 Story, 464, 469, Jlr. Justice Stonj said : "If the 
 expenses are incurred for tlie benefit of all concerned, tliey are a general average. But 
 if there should be a capture of a neutral shii), solely on account of the cargo, which is 
 owned by different persons, who are sliippers, if no proceedings are had against the 
 ship, but are against the cargo only, the expenses occasioned thereliy will be appor- 
 tioned upon the ownei-s of the cargo, and are but a partial loss thereof, and not a gen- 
 eral average ; for such expenses are not for the benefit of the ship or freight, which, 
 therefore, do not contribute thereto." 
 
 * Bevan v. The Bank of the United States, 4 TVhart. 301. In this case a quantity 
 of specie, the property of the defemlants, was shipped, together with other goods, on a 
 VOL. I. 28
 
 326 ox THE LAW OF SUIPPIXG. [bOOK I. 
 
 Some questions have been raised as to the manner in which 
 the contributory value of the goods sold, should be estimated. 
 There is not, perhaps, a uniformity of practice on this point. 
 We should say, however, that a convenient and reasonable rule, 
 which has much practice to recommend it, is, to take the net 
 proceeds of the goods at the place of adjustment if actually sold 
 
 voT.igc from New Orleans to Philadelphia. The vessel became ice-bound in Delaware 
 bay, and was in imminent danger of being wrecked. The specie was taken out and 
 conveyed by land to Philadelphia, where it was delivered to the defendants on payment 
 of freight. Eight weeks afterwards the vessel arrived in safety with the remainder of 
 her cargo, which had been in whole or in part discharged into lighters, and afterwards 
 reshipped. A number of additional charges had also been incurred in the mean time 
 for the safety of the ship and cargo. It was held, that the defendants were bound to 
 pay their proportion of these expenses. 'In Bedford Com. Ins. Co. r. Parker, 2 Pick. 
 1, the ship M'as stranded a few miles from her port of destination. The owner of the 
 cargo saved part of it at his own expense. Subsequently the insurers on the ship 
 entered into a contract with a certain party to pay him $2,600 if he would get the ship 
 off. The ship was saved and brought to the wharf, with part of the iron on board. It 
 was held, that only this part was liable to contribute in general average for the expense 
 thus caused. Similar decisions in relation to stranded ships were given in Sparks r. 
 Kittredge, U. S. D. C, Mass., 9 Law Reporter, 318; Job v. Langton, 6 Ellis & B. 
 779, 37 Eng. L. & Eq. 178. It is difficult to reconcile these cases. The facts in 
 each ai-e not materially different. Mr. Phillips (vol. 2, ^ 1407) doubts the correctness 
 of the decision first mentioned, and in this conflict of authorities, it is impossible to 
 determine with accuracy what the law is. The question has also arisen in a recent case 
 in New York, Nelson v. Belmont, 5 Duer, 310. A ship, loaded with cotton, was struck 
 by lightning, and set on fire. The passengers and eight kegs of specie were transfeiTcd 
 to a brig which was passing. The fire was confined to the hold, and was got under 
 sufficiently to enable the ship to sail for an intermediate port, whither she was accom- 
 panied by the brig. While in the harbor, and before reaching the wharf, the captain of 
 the ship took the specie, and a^erwards deposited it in a bank. It was held, that the 
 specie was liable to contribute for all general average expenses incurred subsequent to 
 the removal of %ie specie, as well as for those prior. The question, perhaps, is to be 
 determined by the fact whether the voyage was broken up to such a degree that the 
 owner of the cargo had a right to take the goods on. For it has been held that if while 
 a vessel is being repaired at an intermediate port, the owner takes the cargo, he is 
 liable for subsequent average expenses. Sherwood v. Ruggles, 2 Sandf. 35. But this 
 distinction is not noticed in the cases above cited. In The Ann D. Richardson, Abbott, 
 Adm. 499, it was held, that the cargo was not to be charged with any expenses incur- 
 red in respect to it after the voyage was broken np and abandoned. Mr. Justice Beits 
 said : " The charges for reparations made to the vessel subsequently, may properly be 
 referred to as a means of measuring the actual value of her injuries sustained for the 
 common benefit. That allowance has no ajiplication to claims for the care and man- 
 agement of the cargo after it ceased to be connected with the vessel for the purposes of 
 the voyage. Services or expenditures of that character have no connection with the 
 ship or the injuries she incurred for the common advantage, and cannot, therefore, be 
 subjects of general average." "
 
 CII. IX.] CONTRTBUTIOX FOR A GENERAL AVERAGE LOSS, 327 
 
 there (or if sold before, their actual proceeds), or their net value 
 for sale as estimated. ^ It has happened that the goods so sold 
 brought much more than the price they would have brought at 
 the place of destination. If this is now taken as the value of 
 the goods lost, the shipper makes a profit; if as the contributory 
 value of the goods which pay, he loses; but in our judgment 
 these consequences may be set oft' against each other, and the 
 general rule should still be that an actual sale at the port of ad- 
 justment determines the value of the goods.^ 
 
 We think, also, that from the value of the goods should be 
 deducted the freight paid or payable on them. The owner pays, 
 or loses the freight, because the goods are brought in safely. He 
 would have saved the freight had they been lost; and he has saved 
 the goods less the freight by their being brought into port; and 
 it is only the saved property, or the saved value, which contrib- 
 utes. If the vessel arrives at the home port, or if it is wrecked 
 and the goods are sent on, the general rule is that they shall 
 contribute according to their value there.^ In New York, their 
 value is taken to be the first cost at the port of departure and 
 charges.* In Massachusetts, the value at the time and place of 
 the occurrence of the average expense is taken.^ 
 
 1 See Stevens & Bencckc on Av., riiillips' cd. pp. 68-74, 193, 19t ; 2 I'liillips on 
 Ins. § 1401. In Lee r. Giiiiiiell, 5 Duer, 400, 430, where tlie carfro was damaged wliilc 
 in port and sold, it was held that the amount it brought at the sale was to be taken as 
 the fair value. 
 
 2 Ivichardson r. Nourse, 3 B. &. Aid. 237. In this case poods were sold at an inter- 
 mediate port, in order to pay for necessary repairs, at a i)rice higher than the\' would 
 have brought at the port of destination. A reference being had to settle the loss, the 
 arbitrators allowed for the actual value of the goods when sold, and not for their value 
 at. the port of destination. Tiie case came before the court on a motion to set aside 
 the award. It was held that as it did not clearly appear that the award was contrary 
 to any well-established princii)lc of law, it must stand. Mr. Piiillips says : "There is 
 a diversity of opinion on this question among practical underwriters in the United 
 States." Stevens & Benecke on A v., Phillips' ed. 194. 
 
 " Barnard r. Adams, 10 How. 270, 307. In this case the court said : " The place 
 where average shall be stated is always dependent more or less on accidental cir- 
 cumstances, affecting not the technical termination of the voyage, but the actual and 
 practical closing of the adventure. We see nothing in the circumstances to take this 
 case out of the general rule that contribution should I)c assessed on the value at the 
 home port." Sec also, Gillett v. Ellis, 11 111. 579 ; Gray c. Wain, 2 S. &. R. 229. 
 
 * Leavenworth v. Delaticld, 1 Caincs, 573. See also, Mutual Safety Ins. Co. r. 
 Cargo of Ship George, Olcott, Adm. 157, 166. 
 
 5 Douglas V. Moody, 9 Muss. 548. In Spafford v. Dodge, 14 Mass. 66, it was held
 
 32S ON THE LAW OF SniPPING. [BOOK I. 
 
 . If the ship returns to her port of departure, and the adjust- 
 ment of average is made there, it seems to be the practice to 
 take the invoice cost of the goods as their contributory value.^ 
 The old rule to ascertain the value of the goods to be contribu- 
 ted for, was, if half the voyage had been performed, to take the 
 price at the port of discharge, if not, at the price they cost; but 
 this rule was long since done away with.^ If the goods are 
 insured, their valuation in the policy would generally be conclu- 
 sive, if made without fraud, in case of an adjustment at the 
 home port.3 
 
 Profits do not contribute under that name. It is obvious, 
 however, that when the contributory value of the goods, is their 
 value at the port of destination, it is their value as enhanced by 
 the transportation, and therefore the profits are included in fact.'' 
 
 So, too, as to the valuation of the freight, there are some 
 points not positively settled by law or by practice. Only the 
 freight earned, pays ; ^ and if that be only a jiro rata freight, that 
 only contributes,^ and from the freight all expenses necessary for 
 earning it, should first be deducted." 
 
 that to ascertain this value, the vahic of the goods at the port of lading was to be 
 taken, unless it should appeal* that the value was increased by being carried to the 
 port where the average expense became necessary. 
 
 1 Tudor V. Macomber, 14 Pick. 34. See the case at length in the next note. 
 
 2 This is said to be the rule in 2 Molloy, ch. v. ^ iv. ; Beawes, Lex Mercatoria, 148 ; 
 Consolato del Mare, ch. 95; Emerigon, ch. xii. sect, xliii. § 5, Meredith's ed. p. 505. 
 The whole subject was elaborately discussed in Tudor v. Macomber, 14 Pick. 34. In 
 this case a vessel with a cargo of ice, on a voyage from Boston to Charleston, S. C, 
 was driven on shore at Chatham. The ice was thrown overboard for the preservation 
 of the ship. The court, speaking of the old rule, said : "It has been exploded. It is 
 
 of very difficult and uncertain application We think that if the vessel arrives at 
 
 the port of destination, the value should be the net price for which tlie cargo might 
 have been sold there. That is undoubtedly the rule in Great Britain, France, Spain, 
 and Prussia. Benecke, 288. 'But,' says the same author, 'should a jettison take 
 place so near the port of departure that the vessel returns to the same, or to a neigh- 
 boring port, the actual price of replacing the goods thrown overboard should be 
 allowed ; or if that could not be done, the cost price, including sliipping cliarges and 
 premiums of insurance, should be the rule by which the value of the goods jettisoned 
 should be ascertained.' We think this is the sound rule in such a case." 
 
 3 Tudor V. Macomber, 14 Pick. 34, 39. 
 
 * The Nathaniel Hooper, 3 Sumner, 542 ; 2 Phillips on Ins. § 1294. 
 6 Lee V. Grinnell, 5 Uuer, 400, 431. 
 
 6 The Nathaniel Hooper, 3 Sumner, 542 ; Maggrath v. Church, 1 Caines, 196 ; Gray 
 V. Wciln, 2 S. & R. 229. 
 
 T Williams r. London Ass. Co., 1 M. & S. 318.
 
 CH. IX.] COXTRIBUTIOX FOR A GENERAL AVERAGE LOSS. 329 
 
 Whatever freight the ship loses by jettison of the goods, or by 
 any sacrifice, is, of course, to be contributed for.^ So if she be 
 voluntarily stranded to save the cargo, and being lost cannot 
 carry it on and earn her freight, this is a part of the sacrifice.^ 
 But if the voyage is broken up in any other way, and not in 
 consequence of a voluntary sacrifice, the freight lost is not to be 
 contributed for.^ When freight is entitled to contribution, the 
 value is the gross freight lost by the sacrifice.* Nor is it 
 more doubtful, perhaps, that the net freight only on the 
 goods saved and carried, is called upon to contribute. But 
 the difficulty comes when wc have to determine what is 
 this net freight. It is usually reached by deducting a certain 
 proportion from the gross freight; as one fourth, or one third, 
 or one half ; most frequently, one third.^ Practically, the ques- 
 tion seldom causes any embarrassment; because in most com- 
 mercial ports some rule prevails, which is sanctioned by general 
 usage there ; and, as we shall presently see, an adjustment made 
 at a proper place, according to the law of that place, is binding 
 upon all parties and interests.^ 
 
 If freight were paid in advance, and was not to be repaid in 
 
 ^ Tlie Nathaniel Iloopor, 3 Sumner, 542 ; The Ann D. KicharJson, Abhott, Adm. 
 499 ; Nelson v. Belmont, 5 Duer, 310, 322. 
 
 ■'' In Col. Ins. Co. v. Ashby, 13 Pet. 331, 344, Mr. Justice Story said, upon this point : 
 "It seems to us, that, as by the loss of the ship, the freij^ht was totally lost for the 
 voyage, it was properly included in the loss, and as a sacrifice by the ship-owner for 
 the common benefit." See also. Gray v. Wain, 2 S. & R. 229. 
 
 3 Lee V. Grinnell, 5 Duer, 400, 431 ; Nelson v. Belmont, 5 Duer, 310, 323 ; Tudor c. 
 Macomber, 14 Pick. 34. 
 
 * 2 Phillips on Ins. ^ 1368; Mutual Safety Ins. Co. v. Cargo of the Ship George, 
 Oleott, Adm. 157. 
 
 ^ Frcijiht shall contribute at one half of the gross sum agreed to be paid. Leaven- 
 worth ('. Delafield, 1 Caines, 573 ; Ileyligcr v. N. Y. Firem. Ins. Co., 11 Joluis. 85. In 
 Humphreys v. Union Ins. Co., 3 Mason, 429, 439, Mr. Justice Stori/ states that the prac- 
 tice in Massachusetts has been to ascertain the contributory value of freight by deduct- 
 ing one third of the gross amount. The foreign laws on this subject arc very diverse. 
 See Stevens & Bcncckc on Av., Phil, ed., 215, 255. In Mutual Safety Ins. Co. v. Cargo 
 of the Ship George, Oleott, Adm. 157, it was held, that the freight should contribute 
 at its gross value, deducting therefrom all necessary expenses incurred, if any, subse- 
 quent to the wreck. If there is a charter-party, and freight is to be paid for the round 
 voyage out and home, and the principal object of the voyage is to obtain a return cargo, 
 if a loss occurs on the outward voyage, the freight for the round voyage contributes. 
 Shelton V. Brig Mary, T^. S. D. C, Mass., 5 Law Reporter, 75. 
 
 *> Sec post, p. 332, u. 1. 
 
 28*
 
 330 ON THE LAW OF sniPPiNG. [book I. 
 
 any event, this was not at risk, and should not therefore be re- 
 quired to contribute.! By the civil law, the master of the ship 
 was required to have the contributions settled, that is, to collect 
 from all the paying parties their contributions, and pay them to, 
 or hold them for, the losing parties.^ The ordonnance of Louis 
 XIV. contains the same provision;^ but Valin, in his commen- 
 tary,* denies that it is so done in practice, and his authority can 
 hardly be doubted. And Abbott, though not saying so directly, 
 implies that it is not the law or usage in England.^ We have 
 always supposed, however, the uniform American practice to be 
 in conformity with the provisions of the civil law. That is, the 
 master is agent of all concerned in this matter, and he has a 
 lien upon all the contributory goods for their contributions, and 
 may refuse, and it is his duty to refuse to deliver these goods to 
 their consignees, unless these contributory shares are paid for or 
 secured by bond or otherwise.^ 
 
 Several American cases assume this to be the practice, and 
 speak of it as law. In a recent case, a shipper entitled to con- 
 tribution, and losing it by neglect of the master in this respect, 
 held the owners responsible.'' And we should say that this case 
 is in conformity with the uniform practice in this respect. It 
 has been decided, and is undoubtedly the law, that if a master 
 parts with the goods without such contributory payment, and 
 afterwards pays over to the losing party the contribution to 
 
 1 Stevens & Benecke on Av., Phil. ed. 210, 257 ; 2 Phillips on Ins. § 1404. 
 
 2 Dig. 14, 2, 2. See also, Wellwood, tit. 21. 
 8 Liv. 3, tit. 8, Du Jet., art. 21. 
 
 * Tom. 2, p. 211. See also, Pothier on Maritime Contracts, Cushing's ed., p. 76, 
 n. 134. 
 
 ^ See Abbott on Shipping, 507. In the year 1811 a motion was made by the owner 
 of goods, which had been jettisoned for the safety of the vessel and cargo, for an 
 injunction to prevent the master from delivering over the rest of the cargo to the other 
 shippers. The motion was refused by Lord Chancellor Eldon, on the ground that 
 though the master was not bound to part with any of the cargo, until security should 
 be given by each shipper for his proportion of the loss, yet that every owner of a part 
 of a cargo could not compel him to do so. Hallett v. Bousfield, 18 Ves. 187. It is 
 also incidentally remarked in two subsequent cases that the master has a lien, but the 
 nature or extent thereof is not pointed out. Simonds v. White, 2 B. & C. 805 ; Scaife 
 V. TebiiL, 3 B. & Ad. 523. 
 
 6 Cole V. Bartlett, 4 La. 130. 
 
 ■? GiUett V. Ellis, 11 111. 579. See also Dupont de Nemours v. Vance, 19 How. 
 162.
 
 en. IX.] ADJUSTMENT OF GENERAL LOSS AND CONTRIBUTION. 331 
 
 which he was entitled, he has an implied assumpsit against the 
 person to whom he delivered the goods bound to the contribu- 
 tion. And the owner of the goods is also liable, although the 
 consignee signed a general average bond.^ And if one shipper 
 pays all the general average expenses incurred by reason of a 
 peril, as capture for instance, he has a right of action against a 
 joint shipper for his proportion.^ 
 
 The English East India Company, when they charter a ship, 
 stipulate that there shall be no claim for contribution for general 
 average.3 We have ne.ver known an instance of such a pro- 
 vision entering into an American contract. 
 
 SECTION IX. 
 
 OF THE ADJUSTMENT OF A GENERAL AVERAGE LOSS AND 
 CONTRIBUTION. 
 
 It is commonly said that the proper place of an adjustment is 
 the port of final destination.'^ This is undoubtedly correct as a 
 general rule. But we have seen that the master has the power, 
 and indeed it is hia duty not to deliver any contrilfutory goods to 
 their owners until their share of contribution is paid or secured to 
 him for the benefit of the party to whom it belongs. But tiiis im- 
 plies and requires a previous adjustment; and there can hardly 
 be an adjustment in part of any thing of which all the elements 
 are so closely connected and interdependent. It follows, there- 
 fore, we think, that the rule should rather be as stated by Phil- 
 lips, in his valuable work on insurance : " Where different par- 
 ties are concerned in a general average, the jurisdiction of the 
 
 1 Eckford i-. Wood, 5 Ala. 13G. The court, in tliis case, also said, that if a party, 
 who is bound to contribute, pays his proportion of the contribution to the master, this 
 payment discharfrcs him from all liability to the party entitled to contribution, though 
 the captain should keep the money for his own use. 
 
 2 Kern v. Groning, 1 Brev. 506. 
 
 8 HnghcR on Ins. 296 ; Stevens & Beneckc on Av., Phil. cd. 252 ; Jackson v. Char- 
 nock, 8 T. R. 50'J. 
 
 * Stevens & Beneckc on Av., Thil. cd. 268.
 
 332 ON THE LAW OF SHIPPING. [BOOK I. 
 
 adjustment is at that port of delivery, at which their interests are 
 to be separated." 1 This, indeed, is the port of destination for 
 those goods which are to be delivered there. And the rule 
 would be the same in substance, if it were that the adjustment 
 should be made at the first port of delivery of any of the inter- 
 ests concerned. 
 
 Adjustments are usually made by persons who make this their 
 especial business. They are called, on the continent of Eu- 
 rope, despacheurs ; and this word not unfrequently occurs in 
 English and American books; but we have seldom heard it used 
 orally. With us, averages are usually adjusted by insurance 
 brokers. 
 
 It is an ancient and universal rule, founded upon obvious rea- 
 sons, and indeed an obvious necessity, that an adjustment made 
 at the place at which it should be made, and according to the 
 law of that place, is binding upon all the interests embraced in 
 it.2 So far as regards the original owners, there is scarcely any 
 exception or qualification to this rule.'^ Some questions have 
 arisen where these owners are represented by insurers, which 
 will be considered when we treat of Insurance in a subsequent 
 volume. In our note we cite, for the convenience of the reader, 
 the cases in which this question has been decided in either 
 way.* , 
 
 1 2 Phillips on Ins. § 1413. 
 
 2 In delivering the opinion in Simonds v. White, 2 B. & C. 805, Abbott, C. J., said : 
 " The shipper of goods, tacitly, if not expressly, assents to general average, as a known 
 maritime usage, which may, according to the events of the voyage, be either beneficial 
 or disadvantageous to him. And by assenting to general average, lie must be under- 
 stood also to assent to its adjustment, and to its adjustment at the usual and proper 
 place ; and to all this it seems to us to be only an obvious consequence to add, that he 
 must be understood to consent also to its adjustment according to the usage and law of 
 the place at which the adjustment is to be made." See also, Daglish v. Davidson, 5 
 Dowl. & Ry. 6 ; Lewis v. Williams, 1 Hall, 430 ; and cases below, note 3. 
 
 '^ In Chamberlain v. Reed, 13 Maine, 357, it was held, that an adjustment made on the 
 protest and representations of the master, would not preclude the owner of goods ship- 
 ped on board from showing that the loss was occasioned through the culpable negli- 
 gence, or want of skill of the master, and was not, therefore, a case for a general 
 average contribution. 
 
 * In the following cases it has been decided that an adjustment made at a foreign 
 port is not binding on an insurer. Power v. Whitmorc, 4 jNI. & S. 141 ; Thornton v. 
 U. S. Ins. Co., 3 Fairf. 150; Lenox v. United Ins. Co., 3 Johns. Cas. 178; ShifT r. La. 
 State Ins. Co., 18 Mart. La. 629. And it has been held that it was so binding, in New- 
 man V. Cazalet, Park, Ins. 566, n. ; Walpolc v. Ewer, Park on Ins. 565 ; Strong v. N.
 
 CH. IX.] ADJUSTMENT OF GENERAL LOSS AND COXTRIEL'TIOX. S33 
 
 "We would add the general remark, that while the law of 
 general average is the same whether the property lost or con- 
 tributory is insured or not, much the greater number of cases in 
 which this law has come into question are insurance cases ; and 
 we shall be obliged to consider hereafter some, at least, of the 
 principles above stated, as they present themselves under the 
 law of insurance. We shall here state very briefly the remedies 
 which a party entitled to contribution has against the subjects 
 liable to contribute. First, as to the rights of the owner of the 
 ship. Having possession of the goods, the master has a lien by 
 the common law, and may retain them till an adjustment is 
 made and settled, or till the consignees sign a general average 
 bond.i And there is no exception to this rule in favor of the 
 United States.^ 
 
 The practice formerly prevailed to a considerable extent for 
 the owner of the ship to bring a suit in rem against the goods 
 bound to contribute where they had been delivered up by the 
 master.-'^ But it was held, by the Supreme Court of the United 
 States, that the lien of the master or owners, being but a com- 
 mon law lien, could not be enforced in admiralty."^ We think, 
 however, this case was wrongly decided, for there seems to be 
 no subject over which the admiralty should more properly take 
 jurisdiction, than general average. The reasons on which the 
 decision of Cutler v. Rae rests, have been much shaken by 
 recent decisions,'' and further adjudication is necessary to settle 
 
 y. Fircm. Ins. Co., 11 Johns. 323 ; Dcpau v. Ocean Ins. Co., 5 Cow. G3 ; Loring v. 
 Neptune Ins. Co., 20 Pick. 411. Tlie question was discussed by Mr. Justice Story, with 
 his usual learning and ability, in the case of Peters i\ Warren Ins. Co., 1 Story, 463, 
 and a strong opinion expressed in favor of the latter view of the case, though he ex- 
 pressly stated that he did not wish to be understood as deciding the point. 
 
 1 Strong i\ N. Y. Firem. Ins. Co., 1 1 Jolins. 32.'? ; Slicrwood v. Iluggles, 2 Sandf. 
 55; Thornton v. U. S. Ins. Co., 3 Fairf. 150; Chanilierlain v. Eced, 13 Maine, 357. 
 
 2 United States v. Wilder, 3 Sumner, 308. 
 
 2 Mutual Safety Ins. Co. v. Cargo of the Brig George, Olcott, Adm. 89. 
 
 * Cutler V. Ilac, 7 How. 729. 
 
 6 In Dike V. Propeller St. Joseph, 6 McLean, C. C. 573, the court said : " The 
 decision, however, in the case of Cutler v. Rae, was by a divided court, and it has not 
 , been satisfactoi-y to the profession, nor was it a decision in accordance with the prior 
 decisions of the Supreme Court. I should conform to it in a case that could not bo 
 distinguished from its principles." And in Dupont de Nemours v. Vance, 19 How. 
 162, Mr. Justice Curtis, speaking of Cutler v. Rae, said: "The court decided, that, 
 though the master, as the agent of the owner of the vessel in that case, had, by the
 
 334 ON THE LAW OF SHIPPING. [bOOK I. 
 
 the question. It has been held, that a libel in rem is maintain- 
 able against the vessel in admiralty, by a shipper entitled to 
 contribution.^ 
 
 The right of the master to maintain assumpsit against each 
 shipper for the amount severally due, which is given by the 
 common law,^ is inconvenient and expensive where there are 
 many shippers, and the usual and most effectual way of obtain- 
 ing relief, at the present day, is by a bill in equity.^ 
 
 maritime law, a lien upon the goods, as security for the payment of their just contribu- 
 tion, this lien was lost by their voluntary delivery to the consignee; and that the im- 
 plied promise to contribute could not be enforced by an action in personam against the 
 consignee, in the admiralty. Tliis admits the existence of a lien, arising out of the 
 admiralty law, but puts it on the same footing as a maritime lien on cargo for the price 
 of its transportation ; which, as is well known, is waived by an authorized delivery 
 without insisting on payment." If this be the reason for the distinction, it follows that 
 no action will lie in personam for freight, where the goods have been delivei-ed up. 
 
 1 Dike V. Propeller St. Joseph, 6 McLean, C. C. 573 ; Dnpont de Nemours v. Vance, 
 19 How. 162. In a case prior to this latter decision, Mr. Justice Curtis held, on the 
 authority of Cutler v. Rae, that there was no lien in rein against the vessel in such a 
 case. Beane r. The Mayurka, 2 Curtis, C. C. 72. But the decision in Dupont de 
 Nemours r. Vance, to the contrary effect, was given by the same learned judge, and in 
 a still more recent case the correct rule that a lien exists has been laid down. The 
 John Perkins, U. S. C, C, Mass., 1857, 21 Law Reporter, 87, 96. 
 
 - Sherwood v. Buggies, 2 Sandf. 55; Marsham v. Dutrey, Select Cases of Evid. 58; 
 Birkley v. Prcsgrave, 1 East, 220 ; Dobson v. Wilson, 3 Camp. 480. 
 
 3 Sturgess v. Caiy, 2 Curtis, C. C. 59. See also, Sheppard v. Wright, Show. P. C. 
 IS; Doane i', Keating, 12 Leigh, 391,
 
 CH. X.] OKIGIN AND HISTORY OF STOPPAGE IN TRANSITU. 335 
 
 CHAPTER X. 
 
 OF STOPPAGE IN TRANSITU. 
 
 SECTION I. 
 
 OP THE ORIGIN AND HISTORY OF THE RIGHT OF STOPPAGE IN 
 
 TRANSITU. 
 
 The right of stoppage in transitu may be defined as the right 
 by which the seller of goods to a distant purchaser, who be- 
 comes insolvent, stops them, if he can do so, before they come 
 into the possession of the purchaser. 
 
 It is now quite settled that this right belongs to the seller who 
 sends his goods by land, as well as to him who sends them by 
 sea. And the consideration of it might seem to belong, in some 
 respects at least, to an investigation of the law of purchase and 
 sale. But it originated with waterborne goods, and is still exer- 
 cised far more frequently in those cases than in land carriage. 
 And it therefore may properly — as it is usually — be regarded 
 as a part of the law of shipping. 
 
 When, and how this law of stoppage in transitu became a 
 part of the law of England, is not quite certain. Its introduc- 
 tion is comparatively recent ; and it is very important to ascer- 
 tain, if we can do so, the foundation, and determining princi- 
 ples of this now well-established rule of law; and some inqui- 
 ries into its origin and history will hclj) us to do this. 
 
 There are in fact three ways, in cither of which it might be sup- 
 posed that the law of stoppage in transitu entered into the law 
 of England. One by adoption from the continental law, which 
 is based upon the civil law. This law, in the case of a sale,
 
 336 ON THE LAW OF SHIPPING. [book I. 
 
 docs not consider the right of property as passing to the buyer, 
 until he has possession of the goods.^ It distinguishes carefully, 
 and we think wisely, between the jus ad rem, which such a 
 buyer gets by the sale to him, and the jus in re, into which the 
 jus ad rem ripens as soon as the buyer takes possession. It follows, 
 therefore, that the seller continues to own the goods until they 
 reach the buyer. He need not stop them, nor do any thing else 
 to revest any title in himself. If they are not in the possession 
 of the buyer when the buyer becomes insolvent, they do not 
 pass into his general assets, leaving the seller to take his divi- 
 dend ; but the insolvency leaves the goods the property of the 
 seller. This we understand to have been the principle of the 
 rule in Scotland, and in most other countries in which the civil 
 law prevails. But in Scotland it seems to be otherwise now.^ 
 In France also, the rule has been made more like our own ; that 
 is, some act equivalent to stoppage is required to give to the 
 seller full security in the goods.^ But it is plain that this rule 
 of the civil law could not be adopted in England, where the 
 precisely opposite rule prevails, namely, that a sale does of itself 
 pass the property to the buyer without delivery. By the civil 
 law, the seller was indeed permitted to reclaim the property from 
 the possession of the buyer, within a short period, on the ground 
 that the speedy insolvency implied fraud, if the very goods 
 had not been sold by the buyer, and could be distinctly sepa- 
 rated and identified. 
 
 Another way is, by supposing that the seller had, until the 
 goods reached the buyer, a right to rescind the sale for non-pay- 
 ment, provided the buyer became insolvent ; and that the act of 
 stoppage in transitu was an exercise of this right. This was at 
 one time rather a favorite view ; and in some cases the courts 
 seem to have endeavored to establish this as the true theory of 
 
 1 Dig. 18, 1, 19. See also, id. 19, 1, 13, 8; and 14, 4, 5, 18. 
 
 2 Formerly in Scotland the doctrine of restitution, grounded on presumptive fraud 
 intra tridnum of the bankruptcy of the buyer, prevailed. The last case, in which this 
 doctrine was held, was decided in 1789, but on appeal to the House of Lords, the doc- 
 trine was reprobated and has since been abandoned, and the law of England on the 
 subject is now in force. Bell's Comm., Book ii. cli. vi. § 1. 
 
 3 Code de Commerce, liv. iii. tit. iii. art. 576, et seq. ; Rodman's Translation, p. 
 301. See also, Bell's Comm. Book ii. ch. vi. § 1.
 
 en. X.] ORIGIN AND HISTORY OF STOPPAGE IN TRANSITU. 337 
 
 stoppage in transitu. But they failed, as we think, entirely. We 
 should say that in England the course of adjudication was 
 against this doctrine, and in this country, it is so, very certainly.^ 
 
 The third way is, by supposing that the common law doctrine, 
 of the seller's lien on the goods sold for his price as long as he 
 has them in his possession, continues in force after they have 
 left his possession, and until they have reached the possession of 
 the buyer; or in other words, that the goods are considered as 
 constructively in the possession of the seller until the buyer has 
 actual possession. 
 
 In our own view, we must combine the first and the third of 
 these three ways, in order to account for the law of stoppage in 
 transitu, as a part of the English law and of our own. 
 
 We mean, that this law, in part as a direct consequence of 
 the rules of the civil law, then even more than now, widely pre- 
 vailing; and in part from its obvious reason and justice, became 
 a part of the law-merchant as established by general usage and 
 custom. That when it came first before the observation of the 
 courts, they found it thus established, and saw it to be reasona- 
 ble and just, and looked about to find in the English law some 
 principle by means of which it could be received. And they 
 found this in the law of lien, and in the continued constructive 
 possession of the seller ; and thus founded the law of stoppage 
 i)i transitu upon this lien, making the act of stoppage only an 
 exercise of this lien ; and therefore regulating the law of stop- 
 page by the general principles which belong to the law of lien. 
 
 We may remark in passing, that this is by no means the only 
 instance in which the English law of lien in the seller is used to 
 neutralize the ill effect of the rule, that the sale without delivery 
 passes the property to the buyer. Indeed, this rule of lien seems 
 to have been devised to supply the want of the civil law distinc- 
 tion between the jus ad rem and the jus in re ; and if permitted 
 to have this effect, it will aid in the solution of some of the 
 vexed ciuestions of the law of sales. 
 
 To return to the origin and foundation of the law of stoppage 
 in transitu, we shall find that the cases sustain the views above 
 expressed. The earlier ones certainly do ; and if later aulhori- 
 
 1 See post, p. 340, n. 2. 
 
 VOL. I. 29
 
 338 ON THE LAW OF SHIPPING. [bOOK I. 
 
 ties have sought, as we have intimated, to change the ground * 
 from that of lien to that of rescission, the latest return, as we 
 think, to the original doctrine.^ 
 
 1 The first notice we have of, this rule in the books, is in the case of Wiseman v. 
 Vandcputt, 2 Vern. 203, in 1690. It was clearly a case of stoppage m transitit ; and 
 the right of the seller was sustained by the court, then consisting of lords commission- 
 ers, in a very brief opinion, without giving much reason, or referring to much author- 
 ity or usage. Then came Snee v. Baxter, 1 Atk. 245, in whichthe right is very posi- 
 tively asserted by Lord Hardwicke. This case is said by BuUer, J., in Lickbarrow v. 
 Mason, as cited in the note to Newsom v. Thornton, 6 East, 20, 28, to be " miserably 
 reported." It is not easy to get at the exact force or application of all that Lord Chan- 
 cellor Hardwicke says. It seems, however, to be certain that he puts the case on 
 equitable, rather than on legal principles. He says : " He who would have equity, must 
 do equity," and afterwards says : " Though goods are even delivered to the principal, I 
 could never see any substantial reason why the original proprietor, who never received a 
 farthing, should be obliged to quit all claim to them, and come in as a creditor only for 
 a shilling perhaps in the pound, unless the law goes upon the general credit the bank- 
 rupt has gained by having them in his custod}-." This would seem to be an implied 
 approval of the rule of the civil law, and a declaration that the common laAV is other- 
 wise. His lordship immediately adds : " But while goods remain in the hands of the 
 original proprietor, I see no reason why he should not be said to have a lien upon 
 them till he is paid, and reimbursed what he so advanced ; and therefore I am of opin- 
 ion the defendant had a right to retain them." This is, in the first place, an assertion 
 of common law rule of lien in the case of sale, as well established then as it is now ; 
 and in the next place, by making this rule the ground of supporting a stoppage in 
 transitu (which last two words are used in the decision), it is certain that the Chancellor 
 considered the goods as in the "possession of the seller, until they reached the buyer; 
 and that the stoppage in transitu was only an exercise of the lien of the seller. 
 
 The case would be more valuable in this respect, did it not turn very much on the 
 effect of an assignment by the bankrupt of the bills of lading for the goods. In one 
 paragraph the Chancellor says : " This must depend upon the custom of merchants, and 
 here indeed there is a contrariety of evidence." But from what follows, we apprehend 
 that this diversity related not to the right of stoppage in transitu, but to the general 
 usage in reference to the indorsement of bills of lading. 
 
 The next case is also in equity. It is that of D'Aquila v. Lambert, Amb. 399, 2 
 Eden, 75, in 1761. The original seller, who had demanded the goods of the ship- 
 master, filed a bill to obtain them. The language of the Lord Chancellor, in decreeing 
 for the plaintiff", is quite remarkable. " This is a question of extent and consequence 
 in trade. If it had been res Integra, I should have required a more extensive argu- 
 ment, and taken time to consider; but it is not a case of difficulty. Has been settled 
 by several determinations, which have been universally approved of by merchants." 
 
 It is to be noticed that Buller, J., in his opinion in Lickbarrow v. Mason, quoted in 
 a note to Newsom v. Thornton, 6 East, 25, considers precisely the question we have 
 above presented, and his words are very emphatic. He says : " I will beg leave to 
 make a few observations on the right of stopping goods in transitu, and on the nature 
 and principles of liens. ... It is a contradiction in terms to say, that a man has a lien 
 on his own goods, or a right to stop his own goods in transitu." He goes on to illus- 
 trate his position at much length ; asserting that, until 1690, " this right, or privilege, or
 
 en. X.] THIS RIGHT IS BUT AN EXTENSION OF THE LIEN. J339 
 
 We deem this question, of the origin of the law of stoppage 
 in transitu, as one which should be clearly determined, for 
 whether it is a lien, or a right of rescission, is not merely a 
 technical question, but it involves consequences of the utmost 
 importance. 
 
 SECTION 11. 
 
 THAT THIS RIGHT IS BUT AN EXTENSION OF THE LIEN OF THE 
 
 SELLER. 
 
 If a seller, who stops the goods which he has sold, in their 
 transit to the buyer, thereby rescinds the sale, or annuls it, 
 the goods, which, by the sale, became the property of the buyer, 
 by this annulling of the sale, cease to be his property and 
 become again the property of the seller. In other words, the 
 rights and obligations of the parties are the same as if there had ' 
 never been any sale. Of course the buyer cannot tender the 
 price and take the goods unless the seller chooses to resell them 
 to him. And the seller has his goods but no further claim 
 against the buyer for any deficit in the price. Nor need the 
 seller wait any time, or give any notice, or do any act to com- 
 plete his title ; but may sell the goods at once, to whom he will, 
 as freely as if they had never been sold by him. And if they 
 sell for more than their price, the profit remains with the seller, 
 who sells them as his own. 
 
 A totally different state of things is produced by a stoppage 
 in transitu., if that stoppage be only the exercise of a lien by the 
 
 whatever it may be called, was unknown to tlic law," and declares that it is founded 
 wholly on equitable principles. Although this right thus appears to have ori<rinated ia 
 equity, it is now said that equity will not enforce it. See Goodhart v. Lowe, 2 Jacob & 
 W. 349. It was held in this case that the court would not prevent by injunction the 
 sailing of a ship which had the consignor's goods on board, to enable him to resume 
 possession of them, but would leave him to his remedy at law. And in Melctoinilo i\ 
 Ranking, 6 Jar. 1095, 1 N. Y. Legal Observer, 299, Lord Chancellor Lyndhurst inti- 
 mated that a trial by jury was the proper remedy. In this country, in some of the 
 states, the courts of chancery exercise jurisdiction over stoppage in trnnsiln. Ford v. 
 Sproulc, 2 A. K. Marsh. ."iiS ; llause v. Judson, 4 Dana, 7 ; Secomb v. Nutt, 14 B. 
 Mon. 324 ; Parker v. M'lvcr, 1 Dcs. 274. Sec also, Conyers v. Ennis, 2 Mason, 236.
 
 340 ON THE LAW OF SniPPINO. [BOOK I. 
 
 seller, upon the goods of the buyer, for the price of the goods. 
 Then the goods are in the hands of the seller as a security for a 
 debt due to him from the buyer who owns the goods. It will 
 follow, first, that the buyer or his assigns, by paying whatever is- 
 due upon the goods, discharges the lien and destroys the seller's 
 right of possession. Next, that the seller can treat the goods 
 only as if they were pledged to him for the debt ; that is to say, 
 he must give notice to the buyer that he intends to sell them for 
 his debt, or get a decree in equity for the sale, and give the 
 buyer, who owns them, a reasonable opportunity of redeeming 
 them, and then he may sell them, but still as the buyer's prop- 
 erty ; and finally, if the proceeds are more than sufficient to pay 
 the debt and charges, the balance must be returned to the buyer; 
 and if they are not sufficient to pay the debt, the buyer still 
 ■owes for the balance, and if he has gone into bankruptcy, the 
 :seller may come in for a dividend on his balance. 
 
 These differences are admitted ; and our notes will show, con- 
 iclusively we think, that the latter supposition, or that of a lien 
 by the seller on the goods of the buyer for their price, is the 
 American theory of stoppage in transitu. And there are cases 
 in England, which not only assert this in the broadest terms,i 
 but others in which principles drawn from this theory are ap- 
 plied.2 Thus a mere surety for the price cannot stop the goods,^ 
 
 1 As Buller, J., in Lickbarrow v. Mason, cited in the previous note. 
 
 2 Tiiis question was discussed in Clay v. Harrison, 10 B. & C. 99, but was not 
 decided. See Stephens v. Wilkinson, 2 B. «& Ad. 320. The authorities are strongly in 
 favor of holding the right of the vendor to stop the goods as an extension of the common 
 law lien for the price, or, as Lord Kent/on observed, in Hodgson v. Loy, 7 T. R. 445, as 
 " a kind of equitable lien adopted by the law, for the purposes of substantial justice." 
 The history and character of this right were much discussed in Lord Abinger's opinion 
 in Gibson v. Can-uthcrs, 8 M. & W. 321. See also, Wentworth v. Outhwaite, 10 M. 
 
 6 W. 436. In the following cases in England this right has been considered as an 
 equitable lien, and not a rescission of the contract. Gwynne, Ex parte, 12 Ves. 379 ; 
 Martindale v. Smith, 1 Q. B. 389. See also, AVilmshurst v. Bowker, 5 Bing. N. C. 541, 
 
 7 Man. & G. 882 ; Bloxam v. Sanders, 4 B. & C. 941 ; Edwards v. Brewer, 2 M. & W. 
 375 ; James v. Griffin, id. 632. In this country the right is universally considered as 
 an extension of the common law lien. Huun v. Bowne, 2 Caines, 38, 42 ; Rowley v. 
 Bigelow, 12 Pick. 307, 313 ; Stanton i\ Eager, 16 id. 467, 475 ; Newhall v. Vargas, 13 
 Maine, 93, 15 id. 314 ; Rogers v. Thomas, 20 Conn. 53 ; Jordan v. James, 5 Ohio, 88. 
 The vendee, or his assignees, may recover the goods, on payment of the price, and the 
 
 s Siffken v. Wray, 6 East, 37 L
 
 en. X.] THIS RIGHT IS BUT AN EXTENSION OF THE LIEN. 341 
 
 because the lien exists only between vendor and vendee. And 
 only a consignor who is actually, or virtually and substantially, 
 a vendor, can exercise it.^ A principal who consigns goods to 
 his factor may certainly stop them on hearing of his factor's in- 
 solvency ;2 but so he may generally without the insolvency of 
 the factor, on the common principles of agency. And we should 
 apply the same principles, or analogous ones, to the case of one 
 remitting money for a particular purpose and stopping it on the 
 way, rather than the technical right of stoppage in transitu.^ 
 
 Hence, also, from this supposition of a lien, if the consignor 
 sends the goods for a precedent debt he cannot stoj) them ; for 
 this debt, as it were, pays the price for the goods, and there can 
 be no lien.* But an unadjusted state of accounts and an uncer- 
 tainty as to the balance will not prevent a stoppage ; ^ nor will 
 the acceptance of negotiable paper, unless where that is 
 deemed payment, even if it be indorsed over; and if such a bill 
 be proved before commissioners of insolvency, the dividend paid 
 
 vendor may sue for and recover the price, notwithstanding he had actually stopped the 
 goods in transitu, provided he be ready to deliver them upon payment of the ])ricc. If 
 he has been paid in part, he may stop the goods for the balance due him, and the part 
 payment only diminishes the lien pro tanto on the goods detained. Kymer v. Suwer- 
 cropp, 1 Camp. 109; Ncwhall v. Vargas, 13 Maine, 93, 15 id. 314. 
 
 1 Thus, if a trader in one country should send an order to his correspondent in an- 
 other country to procure and ship him certain goods, which the latter should procure 
 on his own credit, without naming the principal, and ship them to him at the original 
 price, adding only his commission, he would be considered as a vendor so far, at least, 
 as to give him the right of stoppage in transitu. Fcise v. Wray, 3 East, 93 ; Newhall 
 V. Vargas, 13 Maine, 93. Sec also, Ilslcy v. Stubbs, 9 Mass. 65, per Sewall, J. ; 
 Tucker v. Humphrey, 4 Bing. 516. 
 
 •^ Kinloch V. Craig, 3 T. R. 119, 783. 
 
 ^ Smith V. Bowles, 2 Esp. 578. Aliter, where it is a general remittance from a 
 debtor to his creditor on account of his debt. 
 
 * Ilaillc V. Smith, 1 B. & V. 563 ; Smith v. Bowles, 2 Esp. 578 ; Vertue v. Jewell, 4 
 Camp. 31 ; Clark v. Mauran, 3 Paige, 373; AVood v. Roach, 1 Ycatcs, 177, 2 Dall. 
 180 ; Summcril v. Elder, 1 Binn. 106. See also, Anderson v. Clark, 2 Bing. 20 ; Evans 
 V. Nichol, 4 Scott, N. R. 43. 
 
 ^ Wood V. Jones, 7 Dowl. & Ry. 126. In this case a merchant in England sent goods 
 of a given value to a merchant at Quebec for sale on his account. IJcforc tiie goods 
 were sold or the proceeds ascertained, the latter ship])ed three cargoes of timber to the 
 former, to credit in his account. Two of them arrived. Against the third the con- 
 signor drew a bill for the amount, while it was in transitu. In the interval the con- 
 signee dishonored the bill, and became insolvent. Held, that the consignor had a per- 
 fect right of stoppage in transitu, and was not bound to wait until tiie mutual accounts 
 between him and the consignee were finally adjusted. 
 
 29*
 
 343 ON THE LAW OF SHIPPING. [BOOK I. 
 
 on it will be considered only as so much paid towards the price 
 of the goods, even though the bill is not yet mature.^ Nor will 
 the actual receipt of part payment j^ for neither of these would 
 destroy the lien of the seller. And if there be a part payment 
 and the seller afterwards stops the goods hi transitu, the buyer 
 cannot recover back the part payment, as he might do if the 
 stoppage in transitu were a rescission of the sale.^ 
 
 SECTION III. 
 
 / 
 
 WHEN THIS RIGHT MAY BE EXERCISED. 
 
 A. Of the Constructive Possession of the Seller. 
 
 While the seller retains actual possession of the goods, the 
 ancient rule of lien makes them his security.* When the buyer 
 takes them into his actual possession, all lien of the seller is at 
 an end. The stoppage must, therefore, be only while the goods 
 are in transitu;^ and that is when they are not in the actual 
 possession of either. But in the application of the rule the law 
 
 1 Feise v. Wray, 3 East, 93 ; Jenkyns v. Usborae, 7 Man. & G. 678 ; Newhall v. 
 Vargas, 13 Maine, 93; Bell v. Moss, 5 Whart. 189 ; Donath v. Broomhead, 7 BaiT, 
 301. It has been said that the consignor need not tender back the bill. Edwards v. 
 Brewer, 2 M. & W. 375; Hays v. Mouille, 14 Pcnn. State, 48. 
 
 2 Hodgson V. Loy, 7 T. R. 440; Newhall v. Vargas, 13 Maine, 93. 
 s Newhall v. Vargas, 13 Maine, 93. 
 
 * In M'Ewan v. Smith, 2 H. L. Cases, 309, Lord Campbell, speaking of the case 
 ■where the vendor had not parted with the possession, said : " Several of the judges in 
 the court below* discussed at great length the question of stoppage in tratisita. That 
 doctrine appears to me to have no more bearing on this case than the doctrine of con- 
 tingent remainders." It was held, in this case, that the vendor, not having parted with 
 the possession, had a right to retain the goods. See also. Parks v. Hall, 2 Pick. 206, 212 ; 
 Gibson V. Carruthers, 8 M. & W. 321 ; Miles v. Gorton, 2 Crorap. & M. 504. 
 
 5 Wood V. Yeatman, 15 B. Mon. 270 ; Warrea v. Sproule, 2 A. K. Marsh. 528, 536. 
 In Conyers v. Ennis, 2 Mason, 236, before Mr. Justice Story, it was urged that the 
 right of the consignor to stop property, in cases of insolvency, ought not to be confined 
 to stoppage in transitu, but should, in equity, extend to all cases, where the property is 
 not paid for, and remains in the hands of the consignee. But that learned judge held, 
 that the right of the consignor was gone as soon as the goods reached the consignee, 
 and that equity could not relieve the seller.
 
 en. X.] WHEN THIS RIGHT MAT BE EXERCISED. 343 
 
 goes somewhat further, and inquires, also, into the constructive 
 possession of the goods. For they may be in the actual posses- 
 sion of the seller, and yet so far, constructively, in the possession 
 of the buyer, that the seller cannot stop or retain them. Or they 
 may be in the actual possession of the buyer, but under such 
 circumstances that the seller's right of stoppage is not taken 
 away. It becomes, therefore, very important to ascertain when 
 the trarieit, so far as this right is concerned, ceases. 
 
 We will consider this question under the different heads of 
 goods warehoused, goods in the hands of a carrier, goods on 
 board of a ship, and goods transferred by a bill of lading. 
 
 * B. Of Goods Warehoused. 
 
 In general, every warehouse-man is the agent of any party 
 who puts the goods in his warehouse and can take them ^ut at 
 his pleasure ; and, therefore, his possession is the jiossession of 
 such party. This is carried so far, that where a seller had a 
 warehouse, and ,it was a part of the bargain of sale, that the 
 goods might remain in his warehouse until the buyer took them 
 out, without charge; and they remained there after the sale 
 under this bargain, it was held that this actual possession of the 
 seller was the constructive possession of the buyer, and that the 
 seller could not stop or retain them for the price.i 
 
 On this point it is a material question whether any thing 
 remains* to be done by the seller; if nothing, this goes far to 
 
 1 Barrett v. Goddard, 3 Mason, 107. See also, Uammond i'. Anderson, 4 B. & P. 
 69. To\fnley v. Crump, 4 A. & E. 58, is, however, contra. And the same rule ap- 
 plies a fortiori if the X'cndee pays warehouse rent. Hurry v. Mangles, 1 Camp. 452 ; 
 Phillimore v. Barry, id. 513. In Miles v. Gorton, 2 Cromp. & M. 504, the goods, in 
 the warclibusc of tlie vendor, were sold under an invoice wliich expressed that they 
 were to remain at rent. A hill of exchange for the price was given and negotiated, 
 but l)efore maturitj', tiie vendee became bankrupt. Held, that the vendor had not lost 
 his lien. The court said : " Here, in point of fact, the wareiiouse rent wa* not actu- 
 ally paid, but only charged, and sucli cliargc amounted to a notification by the seller 
 to tlie purchaser tliat he was not to have tlie goods, not only until the payment of tlic 
 price, but of tiic rent. In this ease, tliereforc, the vendor had originally a right to hold, 
 both for tlie price and tlic rent ; and I think that the effect is not to make, as has been 
 argued, the wareiiouse of tlie vendor tiie warehouse of the vendee, but to make it a 
 partJpf me contract between the parties, that the goods arc not to be delivered until 
 not ohly the price, but the rent, is paid."
 
 344 ON THE LAW OP SniPPINQ. [BOOK I. 
 
 make the warehousing a delivery to the buyer ; not so, however, 
 if the seller must still do something to or with the goods before 
 they are delivered.^ 
 
 If a seller of goods that are warehoused deliver an order for 
 them to a buyer, this alone may not transfer the possession.^ 
 But if the buyer delivers the order to the warehouse-man, this, in 
 general, does transfer possession ;2 and still more so if the ware- 
 
 1 Hanson v. Meyer, 6 East, 614. In this case a person contracted to sell all his 
 starch then at the warehouse of another at £6 per hundredweight, to be paid for by a 
 bill of exchange. A certain number of days were allowed for delivery. The vendor 
 wrote an order to the warehouse-man to weigh and deliver the starch. Held, that the 
 property did not pass so as to defeat the right of the vendor to stop the goods, till they 
 were weighed. In Wallace v. Breeds, 13 East, 522, a quantit}' of oil in casks was sold. 
 By the usage of trade the casks were to be searched by the seller's cooper; and a 
 broker, on behalf of both the buyer and seller, was to attend to make a minute of the 
 foot-dirt and water in each cask, and the casks were then to be filled up by the cooper 
 with on at the seller's expense, and delivered in a complete state. Held, that until 
 these things were done the right existed. See also, Rugg v. Minett, 11 East, 210; 
 Zagury v. Furnell, 2 Camp. 240; Stoveld v. Hughes, 14 East, 308; and cases infra, 
 p. 345, note 3. 
 
 2 M'Ewan v. Smith, 2 H. L. Cases, 309. The focts in this case were as follows : J. & 
 A. Smith, the owners of sugars in the warehouse of Messrs. Little & Co., sold them to 
 Bowie & Co., and gave them a delivery order for the sugars upon their agent, Alexan- 
 der. In the books of the warehouse-men the sugars were entered as received by them 
 from Alexander on account of J. & A. Smith. Alexander had them weighed and 
 invoiced upon the order of the Smiths. Bowie «Sb Co. sold the sugars to M'Ewan & 
 Sons, and transferred to them the delivery order. Neither of the vendees took any 
 steps to act upon the order. Bowie & Co. having become insolvent, the Smiths re- 
 moved the sugars to another warehouse. It was held that they had never lost posses- 
 sion of the goods, and that a delivery order does not, like a bill of lading, pass the 
 property in goods by being indorsed over. See also, Akerman v. Humphery, 1 Car. & 
 P. 53; Tucker v. Humphrey, 4 Bing. 516; Jenkyns v. Usborne, 7 Man. & G. 678. 
 Nor are dock warrants negotiable instruments. Zwinger v. Samuda, Holt, N. P. 395, 
 7 Taunt. 265. But if the goods remain in the warehouse of the vendors, and they 
 give the vendees samples to enable them to go into the market, and, upon sales by them 
 from time to time -to different purchasers, orders are given to enable them to receive the 
 goods from the vendors, who deliver such parcels accordingly, the property of the 
 ■whole passes to the vendees. Green v. Haythorne, 1 Stark. 447. 
 
 3 Lucas V. Dorrien, 7 Taunt. 278. There is also a dictum of the court in banc to this 
 effect in Harman v. Anderson, 2 Camp. 243. In Hollingsworth v. Napier, 3 Caines, 
 182, the goods were in a public store at the quarantine ground. The owner sold them 
 to one Kinworthy, for cash payable on delivery, and gave him a bill of parcels of the 
 goods and a delivery order on the storekeeper. Kinworthy, without paying for the 
 goods, or taking possession of them, sold them to a third party, whom the jury found 
 to be a bona fide purchaser. This person went the next day, paid the storage, marked 
 the goods with his initials, and returned them to the public store. Held that the orig- 
 inal vendor had no right to stop them.
 
 CH. X.] WHEN THIS RIGHT MAT BE EXERCISED. 345 
 
 house-man enter the same in his books, or otherwise accept the 
 order so as to be responsible for the goods to the buyer ; ^ or if the 
 buyer has acted under the order and removed a part of the 
 goods.2 But even after such an order is given, if the seller has 
 an important thing to do to or with the goods before their deliv- 
 ery, he may countermand the order.^ 
 
 1 narman v. Anderson, 2 Camp. 243. The effect of the transfer in the books of the 
 wharfinger is ordinarily to constitute him the agent of the vendee. But this is not 
 always the case. In Godts i'. Rose, 17 C. B. 229, 33 Eng. L. & Eq. 268, an action of 
 trover was brought for certain casks of oil. The plaintiff had contracted, by bought 
 and sold notes, to sell to the defendant oil, at a certain price, " to be free delivered and 
 paid for in fourteen days by cash, less 2/. 10s. per cent, discount." The oil being at a 
 wharf, the plaintiff gave an order to the wharfinger to transfer a specified quantity of 
 it to the defendant. The wharfinger thereupon transferred it in his books, and gave 
 the plaintiff a notice of the transfer directed to the defendant. This the plaintiflf's 
 clerk took to the counting-house of the defendant, and delivered it to a clerk there, to- 
 gether with an invoice of the oils, and demanded a check in payment. This was 
 refused, but the notice of transfer was retained by the defendant, and the oil obtained 
 by means of it. Held, that as the sale was of no specific oil, the facts above stated did 
 not amount to a delivery to the defendant. Jervis, C. J., states the law as follows : 
 " No doubt if the vendor had given the vendee the transfer order, and the vendee bad 
 taken it to the wharfinger, and the latter had assented to the ti-ansfer, that M'ould have 
 bound the vendor. There must be shown to have been that kind of triangular con- 
 tract adverted to in Williams v. Everett, 14 East, 582, where the agent of the one 
 party becomes by agreement between all three the agent of the other. In this case 
 there has been no such agreement of attornment, the wharfinger made no bargain with 
 the vendee to hold for him, nor did the vendee make any bargain to accept the 
 wharfinger as his agent. The transfer order was given to the vendee only on a condi- 
 tion with which he refused to comply, and there could be, therefore, no such acquies- 
 cence as was necessary to change the property in the goods in the hands of the 
 wharfinger." In Townlcy v. Crump, 4 A. & E. 58, where the goods sold were in the 
 warehouse of the vendor, it was held that the following delivery order, or acknowledg- 
 ment, given to the vendee, would not take away the right of the vendor to retain pos- 
 session, " We hold to your order," etc., describing the goods. 
 
 2 Hammond v. Anderson, 4 B. & P. 69. 
 
 8 Withers v. Lys, Holt, N. P. 18, 4 Camp. 237; Busk i'. Davis, 2 M. & S. 397; 
 Shepley v. Davis, 5 Taunt. 617. But if the identity of the goods and the r[uantity are 
 known, as where oats in a particular bin, which contains nothing else, are sold, and a 
 bill accepted at the same time for the price, the weigliing is merely for the sati.<faction 
 of the buyer, and the transfer in the books of the wharfinger is sufficient, although the 
 delivery order describes the goods by the weight as well as the bin, (" 1,028 bushels of 
 oats in bin 40,") and directs the warehouse-man to weigh them over. Swanwick v. 
 Sotlicrn, 9 A. & E, 895. In Whitehouse v. Frost, 12 East, 614, A, having forty tons 
 of oil in one cistern, sold ten tons to B, and received the ptice. B sold tiie same to C, 
 and took his acceptance at four months, and gave him a written order of delivery on 
 A, who wrote and signed his acceptance upon the order, but no actual delivery was
 
 346 ON THE LAW OF snippiNa. [book i. 
 
 If the buyer sells to a third party, to whom the warehouse-man 
 certifies that the goods are transferred to his account, and who 
 thereupon pays the price, the warehouse-man becomes responsi- 
 ble to this third party, although something material may remain 
 for the original seller to do to the goods.^ And if the seller, by 
 his acts or words, or, we should say, if he by his unqualified 
 order, justified the warehouse-man in so certifying, he would be 
 responsible to the warehouse-man ; or, to prevent circuity of 
 action, he would be held as losing his right of stoppage in trari' 
 situ. The cases which we have already cited lead to this conclu- 
 sion. 
 
 If a buyer, either because he has no warehouse of his own, or 
 because the warehouse of a carrier is more convenient to his 
 customers, or indeed for any reason, causes his goods to be left 
 at that warehouse, and sells them from thence without any pur- 
 pose of removing them before sale to any warehouse or place of 
 deposit of his own, the transit is ended as soon as the carrier 
 deposits the goods in his own warehouse subject to the order of 
 the buyer.2 
 
 It is, of course, while the goods are in the hands of a carrier, 
 that they are most frequently stopped.^ Indeed, the law orig- 
 inally applied only to carriers by water ; and for this purpose 
 any ship which has the goods on board is deemed a carrier.'^ 
 
 made of tha ten tons, which continued mixed with the rest in A's cistern. Held, that 
 as nothing remained to be done between B and C, B could not countermand the order 
 on the bankrupted of C. 
 
 1 Stonard v. Dunkin, 2 Camp. 344. The plaintiff, in this case, gave in evidence an 
 order from one Knight, to the defendants, who were warehouse-men, to hold a quantity 
 of malt on the plaintiffs account, and a wiitten acknowledgment from the defendants 
 that they so held it. It was contended that a remeasuring being necessary in an arti- 
 cle of that kind, the property did not pass till this was done. But Lord Ellcnborough 
 said : "Whatever the rule may be between buyer and seller, it is clear the defendants 
 cannot say to the plaintiff, ' the malt is not yours,' after acknowledging to hold it on 
 his account. By so doing they attorned to him, and I should entirely overset the secu- 
 rity of mercantile dealing, were I now to suffer them to contest his title." See also, 
 Hawes v. Watson, 2 B. & C. 540 ; Barton v. Boddington, 1 Car. & P. 207 ; Gosling 
 V. Birnie, 7 Bing. 339 ; Swanwick v. Sothern, 9 A. & E. S95. 
 
 2 See post, p. 352, tit. F. 
 
 3 And it makes no difference whether he be a carrier by land or by water. Stokes v. 
 La Riviere, cited 3 T. R. 466 ; Hunter r. Beal, cited 3 f. R. 466. 
 
 * Assignees of Burghall v. Howard, cited 1 H. Bl. 365. And this is true, although 
 the goods by the bills of lading are deliverable to the consignees.
 
 en. X.] WHEN THIS RIGUT MAY BE EXERCISED. 347 
 
 C. WJien the delivery on Ship-board terminates the Transit. 
 
 A nice distinction is taken, which has been much questioned 
 but which seems to us to be just, when the ship is owned by the 
 buyer of the goods. For it has been held that if they are placed 
 on board his own ship, to be carried to him, they are in transit 
 until they reach him in the same way as if he did not own the 
 ship.i But if they are placed in his ship to be carried by his 
 
 1 This distinction was recognized in the case of Stubbs v. Lund, 7 Mass. 453. 
 There the vendors resided in Liverpool, England, and the vendees in America. Tho 
 goods were delivered on board the vendees' own ship, at Liverpool, and consigned to 
 them, or assigns, for which the master had signed bills of lading. The vendors, hear- 
 ing of the insolvency of the vendees before the vessel left Liverpool, refused to let the 
 vessel sail, claiming a right to stop the goods because they had not reached their des- 
 tination. The right of stoppage was allowed mainly, it seems, on the ground that 
 the goods were, by the bills of lading, to be transported to the vendees, and were in 
 transit until they reached them ; but it was thought that if the goods had been intended 
 for some foreign market, and never designed to reach the possession of the purchasers, 
 any more than they then had at the time of their shipment, the case would have been 
 different, and the transit would have been considered as ended. Parsons, C. J., thus 
 stated the law : " In our opinion the true distinction is, whether any actual possession 
 of the consignee or his assigns, after the termination of the voyage be, or be not pro- 
 vided for in the bills of lading. Wlien such actual possession, after the termination 
 of the voyage, is so provided for, then the right of stopping in transitu remains after 
 the shipment. Thus, if goods are consigned on credit, and delivered on board a ship 
 chartered by the consignee, to be imported by him, the right of stopping in transitu 
 continues after the shipment (3 East, 381) : but if the goods are not to be imported by 
 the consignee, but to be transported from tho place of shipment to a foreign market, 
 the right of stopping in transitu ceases on the shipment, the transit being then com- 
 pleted : because no other actual possession of the goods by the consignee is provided 
 for in the bills of lading, which express the terms of the shipment." See also, Ilsley 
 V. Stubbs, 9 Mass. 65, 72. This distinction is also followed in Newhall v. Vargas, 13 
 Maine, 93. The purchaser, in this case, lived in America, the consignor in Havana. 
 The former sent his own vessel to Havana, for a cargo of molasses, which was shipped 
 on board the vessel, consigned to the vendee, and to be delivered to him at his port of 
 residence ; it was held that the vendor had the right to stop the goods at any time 
 before they came into the actual possession of the vendee, and Stubbs i'. Lund was 
 fully approved of. On the other hand, the supreme court of Pennsylvania in the case 
 of Bolin V. Iluffnagle, 1 llawlc, 9, after full and learned arguments, held the distinction 
 above taken to be incorrect and unsupported by authority. In Fowler v. M'Taggart, 
 cited 1 East, 522, the broad proposition was laid down tliat a delivery of goods into a 
 ship chartered by the vendee defeated the vendor's right to stop in transitu. It does 
 not appear from the report of this case whether the goods were to be conveyed to the 
 vendee, or to a third party, but in the subsequent case of Bohtlingk v. Inglis, 3 East, 
 381, it is said by the court that the goods were put on board not to be conveyed to tho 
 bankrupts, but that they might be sent by them on a mercantile adventure. This case
 
 348 ON THE LAW OF SHIPPIXG. [BOOK I. 
 
 orders to another place, since they will never be any more in his 
 possession than they are when on board, this terminates the 
 
 is also cited by counsel in fiodgson v. Loy, 7 T. R. 440, 442. The ship was chartered 
 by the bankrupts for three years, and the captain was hired and paid by them, so that 
 they had the exclusive control of the vessel. In Inglis v. Usherwood, 1 East, 515, the 
 general principle seems to have been admitted by all the judges that a delivery of 
 goods by the vendors on board a ship chartered by the vendee, is the same as a de- 
 livery to the vendee. But the delivery in this case was made in Russia, and by a law 
 of that country goods may be stopped in such a case. It was therefore held that the 
 vendors had not lost their right of stoppage. And in Boehtlinck i'. Schneider, 3 Esp. 
 58, it was held that tlie )Iaw of Russia not being provable by parol, the case stood on 
 the general law, and therefore a delivery being made by the consignor on board the 
 ship chartered by the consignee, the ti-ansitus was ended. But in the subsequent case 
 of Bohtlingk v. Inglis, 3 East, 381, the question arising whether the vendors had acted 
 in accordance with the law of Russia, the court laid that element out of the case, and 
 held that, by the general maritime law, wliere a person in England chartered a vessel 
 to go to Russia, and bring goods home from there, the delivery on board the vessel 
 was not a final delivery, on the ground that they " were on their passage or transit 
 from the consignor to the consignee." Thompson v. Trail, 2 Car. & P. 334, merely 
 decides that a direction by the vendee to the vendor to send the goods by a particular 
 ship, will not defeat the right of the latter to stop them. In Van Casteel v. Booker, 
 2 Exch. 691, goods were put on board the vessel at Rio bound "for Cork or a 
 market," consigned to the bankrupts who were merchants at Liverpool, and owners or 
 the vessel. Mr. Baron Parke said, that if the goods were put on board to be carried 
 for and on the account and risk of the bankrupts " the delivery on board put an end 
 to the right of stopping in transitu, for the delivery on the vendee's own ship, is a final 
 delivery at the place of destination, especially where, as in this cage, its final port of 
 discharge was not then determined, and it required further orders at Cork to give the 
 vessel its destination. On that supposition the goods were at their journey's end ; for, it 
 was not intended necessarily that they should ever come otherwise into the possession of 
 the buyer than by being in that of the agent for can-ying, the master." Mitchel v. Ede, 
 11 A. & E. 888, was decided on the ground that the ship was a general one. Turner i'. 
 Trustees of the Liverpool Docks, 6 Exch. 543, 6 Eng. L. & Eq. 507, is an important 
 case on this point. There A. & Co., residing in Charleston, South Carolina, consigned 
 cotton to B. & Co., living at Liverpool, and delivered it on B. & Co.'s own vessel at 
 Charleston, taking a bill of lading to deliver to their order, or their assigns, they paying 
 no freight, "being owners' propertij." The consignors indorsed the bill to the "Bank 
 of Liverpool or oi'der." The consignees became bankrupt before the cotton arrived at 
 Liverpool. The consignors, on its arrival, claimed a right to stop the cargo in tran- 
 situ. The assignees in bankruptcy claimed the cotton, as having been completely 
 vested in the bankrupts as soon as it was put on board their own vessel at Charleston, 
 specially appointed by them to bring home such cargo. Patteson, J., said : " There 
 is no doubt that the delivery of goods on board the purchaser's own ship is a delivery 
 to him, unless the vendor protects himself by special terms restraining the effect of 
 such delivery. In the present case, the vendors, by the terms of the bill of lading, 
 made the cotton deliverable at Liverpool to their order or tlieir assigns, and that, there- 
 fore, was not a delivery of the cotton to the purchasers as owners, although there was 
 a delivery on board their ship. The vendors still reserved to themselves at the time ot 
 the delivery to the captain a jus disponmdi of the goods which he, by signing the bill
 
 CII. X.] WHEN THIS RIGHT MAY BE EXERCISED. 349 
 
 transit.^ We see no reason why the same rule should not 
 apply to a ship which is chartered or hired by the buyer of the 
 goods. If it appears, however, by the bill of lading, that the 
 goods were put on board to be carried on account and at the 
 risk of the consignee, this vests the property in him, and puts an 
 end to the transit.^ 
 
 If the buyer orders the goods to be sent to some other person, 
 by any suitable conveyance, without designating any one espec- 
 
 of lading, acknowledged, and without which, it may be assumed the vendors would 
 not have delivered them at all." See also as to the right of the consignor thus to 
 maintain his right of stoppage, Ellcrshaw v. ^lagniac, 6 Exch. 570, note ; Wait v. 
 Baker, 2 Exch. 1 ; Van Casteel v. Booker, 2 Exch. 691. Lord Chancellor Lyndkurst, 
 In re Humberston, 1 DeG^ 2G2, seems also to have been of opinion, that a delivery 
 on board the vendee's own shij) was in effect a delivery to him, although they were to 
 be conveyed to the vendee. 
 
 1 Fowler v. M'Taggart, cited in 1 East, 522, 3 East, 396. The distinction is also 
 recognized in the cases cited in the preceding note, and fully supported in Rowley 
 V. Bigelow, 12 Pick. 307, 314. The court there said : " We think it very clear, that a 
 delivery of the corn on board of a vessel appointed by the vendee to receive it, not for 
 the purpose of transportation to him, or to a place appointed by him to be delivered 
 there for liis use, but to be shipped by sucl* vessel, in his name, from his own place of 
 residence and business to a third person, was a termination of the transit, and the 
 right of tlie vendor to stop in transitu was at an end." See also, Noble v. Adams, 7 
 Taunt. 59. 
 
 2 Wilmshurst v. Bowker, 7 Man. & G. 882; Van Casteel v. Booker, 2 Exch. 691, 
 708; Jenkyns v. Brown, 19 Law J., n. s., Q. B. 286; Key v. Cotesworth, 7 Exch. 
 595, 14 Eng. L. & Eq. 435. See also, Cowas-jce v. Thompson, 5 Moore, P. C. 165. 
 In this case goods contracted to be sold and delivered " free on board," to be paid for 
 by casli, or bills, at the option of the purchasers, were delivered on board, and receipts 
 taken from the mate by the lighterman employed by the sellers, who handed the same 
 over to them. The sellers apprised tlie purchasers of the delivery, who elected to pay 
 for the goods by a bill, which the sellers having drawn, was duly accepted by the pty- 
 chascrs. The sellers retained the mate's receipts for the goods, but the master signed 
 the' bill of lading in the purcliasers' names, who, while the bill, which they accepted, 
 was running, became insolvent. Under tliese circumstances it was held that trover 
 would not lie for the goods, for th.at on their delivery on board the vessel thc}- were no 
 longer in transitu, so as to be stopped by the sellers ; and tliat the retention of the 
 receipts by the sellers was immaterial, as, after their election to be paid by a bill, the 
 receipts of the mate were not essential to the transaction between the seller and ])ur- 
 chaser. In Mcletopulo v. Hanking, 6 Jur. 1095, 1 N. Y. Legal Observer, 299, one 
 Sargint commissioned the plaintiff to purchase at different places a cargo of currants 
 whicli were to be shipped at Vostizza for England. The currants arrived at Vostizza, 
 and Sargint chartered a vessel and directed that they should be sent to the Messrs. 
 Eanking. Sargint had an agent at Vostizza, who would have attended to the goods, 
 but being sick, the plaintiff put them on board. The bill of lading, however, stated' 
 that they were sliipped liy the agent on account of Sargint. Lord Chancellor Zi/nd- 
 hurst held that this showed that the delivery to Sargint was comjilete. 
 
 VOL. I. 30
 
 350 ox THE LAAV OF SHIPPING. [BOOK I. 
 
 ially, or by a designated carrier who is not specifically his agent 
 or servant, the goods remain in transitu, until they reach that 
 second person. For he is only as the buyer ; or as a second 
 buyer; and a second buyer, without possession, can no more 
 defeat the lien of the seller than the first buyer.^ 
 
 If the buyer orders the goods to be delivered on board a ves- 
 sel named by him, to be carried to a distant consignee whom he 
 names, it seems that if the seller takes a receipt from the ship- 
 master as for his own goods, he preserves his own lien on them.^ 
 And if he demands such a receipt at the time of shipment, and 
 it be not delivered, the seller acquires, by his mere demand, a 
 right as against the master.^ 
 
 D. Hov) the Lien of the Carrier affects this Right. 
 
 A carrier of goods, by land as well as by sea, acquires a lien 
 on the goods which he carries for the freight-money. If the 
 carrier who owns the ship is also the buyer of the goods, this 
 may give rise to cross liens. The ship-owner has a lien for the 
 freight as against the seller. Tfie seller has a lien for the price 
 as against the ship-owner who is buyer. The law adjusts these 
 cross liens thus. The ship-owner being in actual possession of 
 the goods in his own ship, holds on to them until the freight is 
 paid ; but then the right and lien of the seller come into force. 
 He may, by paying freight, acquire a right to the possession of 
 the goods as his security ; and cannot otherwise. If the ship- 
 owner have died insolvent, or have transferred his assets to 
 assignees, and with them the ship and cargo, the shipper of the 
 goods, by tendering freight to the executor or administrator in 
 the first case, or to the assignees in the second, may maintain an 
 action of trover against them for the goods ; but not other- 
 wise.* 
 
 Usually the carrier is a third party, who stands in no particu- 
 lar relation to the goods, or to the buyer or seller. In such case his 
 
 1 Craven v. Ejder, 6 Taunt. 433 ; Dixon v. Yates, 5 B. & Ad. 313. 
 
 2 Craven v. Ryder, 6 Taunt. 433. 
 
 3 Ruck V. Hatfield, 5 B. & Aid. 632. 
 * Newhall v. Vargas, 15 Maine, 314.
 
 CII. X.] WIIEX THIS RIGHT MAY BE EXERCISED. 351 
 
 lien for the freight creates no difficulty. Whoever claims the 
 goods must pay him for carrying them ; and it is immaterial to 
 him whether buyer or seller does this. But a seller who seeks 
 to stop the goods in Iransitu, is bound to pay the carrier only his 
 freight for these very goods, and not his general demand against 
 the buyer.i If the carrier holds them from the buyer by his lien 
 for freight, while he holds "them they are in transit, because not 
 yet in the possession of the buyer. And where a carrier landed 
 a part on the wharf of the consignee, bat took it back again and 
 held that part with the rest for his freight, it was held that this 
 delivery did not extinguish the right of the seller.^ Payment of 
 freight by the buyer is not, of itself, sufficient to terminate the 
 transit or to take away the right of stoppage.^ 
 
 It may be added, that a carrier who agrees to look for his 
 freight to the consignor, cannot detain the goods for freight, from 
 the consignee^ And if he so detain them after a demand from 
 a buyer or consignee otherwise entitled to the possession, we 
 should say that this unlawful detention would no more con- 
 tinue the right of stoppage, than an unlawful delivery would 
 defeat it.^ 
 
 E. When Goods are lodged in the Custom-house. 
 
 Whether, if goods be lodged in the custom-house, or the 
 national warehouse, the transit is ended before the duties are 
 
 1 Oppcnhcim v. Russell, 3 B. & P. 42. 
 
 '■^ Crawshay v. Eadcs, 1 B. & C. 181 ; Edwards r. Brewer, 2 M. & W. 375. 
 
 3 Thus, iu Donatii v. Broomhead, 7 Barr, 301, the consi<:nce paid the freight, but, 
 having lost tlie invoiec, was unable to enter the goods at tlic custom-house, in conse- 
 quence of wliich, they were seized by the officers and removed from the vessel. Be- 
 fore the duties were paid the consignee became insolvent, and the court held the tran- 
 slliix was not ended. See also, Mottram v. Ileyer, 5 Den. G29. 
 
 4 Butler V. Wooleott, 5 B. & P. 64. 
 
 ^ This seems to be the correct rule, and in a controversy between the vendor and the 
 assignees of the bankrupt, it lias been so held; Bird v. Brown, 4 Exch. 78G, 797. Sec 
 also, Naylor v. Dennie, 8 Pick. 198, 203, per Parker, C. J. But in Allen i'. Mercicr, I 
 Ashni. 103, the court were of opinion that, in a case where the goods had arrived at the 
 place where tlie vendee lived, and were demanded by him, lie tendering freiglit, but the 
 carrier refused to deliver tiiem until an old claim was scttleil, and carried tiieni back to 
 the place where the vendor lived, the latter was entitled to maintain replevin against 
 the carrier on tendering freight.
 
 352 ox THE LAW OF SHIPPING. [bOOK I. 
 
 paid and every thing done which is necessary to give the con- 
 signee the right to withdraw them at pleasure, seems not to be 
 certain on the authorities. We should say, on principle, that if 
 the goods pass from the ship to the warehouse because the con- 
 signee has no right to them, not having paid the duties, or other- 
 wise satisfied the requirement of law, it cannot be said that he 
 has ever taken possession of them. And, therefore, the seller may 
 discharge all these claims upon them and establish his lien for 
 the price.i If the goods were ever delivered to the consignee, no 
 subsequent taking of them from him by the government, or de- 
 livery of them by him to the government, can restore the lien of 
 the seller ; for that ceased entirely as soon as they came into 
 possession of the buyer. 
 
 F. Of Constntctive Delivery of the Goods. 
 
 In general, wherever a carrier enters into a new arrangement 
 with the consignee, by which the carrier agrees to hold the goods 
 
 1 It was proved, in Northey v. Field, 2 Esp. 613, that twenty days were allowed after 
 the ship's arrival to pay the duties, daring which time the goods remained on board, and 
 if not paid within that time they were taken to the king's cellars, and kept there three 
 months and then sold, but the owner might have them at any time on payment of 
 duties. The vendees became bankrupt after the ship's arrival, within the twenty days. 
 The goods were removed to the cellars, and the day before "the three months expired 
 the agent of the consignors demanded them. Held, that the transiius was not ended, 
 and the consignors were entitled to recover. Nix v. Olive, Abbott on Shipping, 538, 
 and Burnham v. Winsor, U. S. D. C, Mass., 5 Law Reporter, 507, are to the same 
 effect. In Donath v. Broomhead, 7 Barr, 301, the goods were not entered on account 
 of the loss of the invoice. The court held, that the transit was not complete. Mottram 
 V. Heyer, 5 Den. 629, 1 Den. 483, is an important case on this point. The defendants, 
 merchants in New York, ordered, from the plaintiffs in England, a case of hardware. 
 It arrived April 7, when the bill of lading was delivered and the freight paid. On the 
 9th the goods were entered at the custom-house, and can-icd from the ship to the public 
 store. They were placed there by the custom-house officers, because the consignees 
 had neglected to pay the duties and obtain a permit to land the goods, and were not 
 there under any of the warehousing provisions of the revenue laws. While there, and 
 before the duties were paid, the defendants became insolvent, and the plaintiffs 
 demanded of them the goods. They refused to deliver them, and afterwards paid the 
 duties and removed the goods to their own store. Chancellor Wahcorih was of the 
 opinion, that the entry, without payment of the duties, was not a termination of the 
 tmnsitits, although he thought that if they had been placed in a public store under the 
 revenue warehousing system, the right of the vendor would be gone. See also, as to 
 this last point, Strachan v. Trustees of Knox, Court of Sessions, Scotland, 19 E. C. 
 253, Brown on Sales, 536.
 
 en. X.] wnEX this right may ee exercised. 353 
 
 as the property of the consignee and at his disposal, this is a 
 termination of the transit.^ All acts in reference to any such 
 question must be open to explanation by coexisting circum- 
 stances. And the general question may be stated thus. Taking 
 all the facts together, was the carrier, the warehouse-man, or 
 whariinger, or any other person having the actual possession of 
 the goods, at the time of the intended stoppage in transitu, act- 
 ing as the agent of the seller, or of the buyer ; for if of the 
 latter, the transit w^s terminated.'-^ And a question having 
 
 1 Thus, in Wliiteliead v. Anderson, 9 ISL & "W. 518, 534, Parke, B., said : "A case 
 0^ conslnictice possession is, where the earner enters expressly, or by implication, into a 
 new agreement, distinct from the original contract for carriage, to hold the goods for 
 the consignee as his agent, not for the purpose of expediting them to the place of 
 original destination, pursuant to that contract, but in a new character, for the purpose 
 of custody on his account, and subject to some new or further order to be given to 
 him." In this case the court doubted whether the act of marking, or taking samples, 
 or the like, without any removal of any part of the goods from the possession of the 
 carrier, even though done with the intention of taking possession, would amount to a 
 constructii-e possession, unless it was accompanied by circumstances, showing that it was 
 intended that the earner should keep possession of the goods as the agent of the vendee, 
 and tliat he assented to the same. See also, cases cited in next note. 
 
 ^ Thus, in Allan v. Gripper, 2 Cromp. & J. 218, 2 Tjtw. 217, the goods were con- 
 veyed by a carrier by water, and deposited in the carrier's warehouse, to be delivered 
 thence to the purchaser or his customers, as they should be wanted, in pursuance of an 
 agreement to this effect between the carrier and the purchaser. This was the usual 
 course of business between them. It was held, that the carrier became the warehouse- 
 man of the purchaser, upon the goods being deposited there, and that the vendor's 
 right of stoppage was gone. The case was likened to Foster v. Frampton, 6 B. & C. 
 107, 9 Dowl. & 11. 108, where the vendee desired the carrier, for his own convenience, 
 to let the goods remain in his warehouse until he received further directions ; and also, 
 took home samples of the goods ; but before the bulk was removed he became insolvent : 
 and it was held, that tlic right of stoppage was gone. Sec also, Rowc v. Pickford, 1 
 J. B. Moore, 526. Scott r. Pcttit, 3 B. & P. 469, was decided on the same principle. 
 Goods were sent from Manchester directi-d to the purchasci-s at London ; but, in pursu- 
 ance of a general order from the buyer to the seller, they were sent to the warehouse 
 of the buyer's packer, and by the warehouse-man were booked to the buyer's account, 
 and the warehouse-man impackcd them. The (ransitus was held at an (yul when the 
 goods reached tlie warehouse. In Wcntworth v. Outlnvaite, 10 M. &, W. 436, goods 
 were sold by a merchant in Hull to a Mr. Wcathcrall of Micklcy ]Mills, a j)!ace about 
 thirty miles from Leeds. They were forwarded by railway to Leeds, and there placed 
 in the warehouse of the defendants. The custom was for the warehouse-men, when 
 goods arrived for the vendee, to give him notice, and he then sent his teams for the 
 goods. Held, that the warehouse-men were the agents of the vendee, and a. delivery 
 at their warehouse was a delivery to liim, so as to terminate the transitus. See also, 
 Dodson V. Wcntworth, 4 Man. & G. 1080. But in this country, under a precisely simi- 
 lar state of facts, it has been decided otherwise. CovcU v. Hitchcock, 23 Wend. Oil, 
 20 Wend. 167. 
 
 30*
 
 t 
 
 354 ON THE LAW OF SHIPPING. [lOOK I. 
 
 arisen in such a case, whether the intention of either party 
 could be put in by evidence and considered, when that intention 
 had not been communicated to the custodian, it was held, by 
 the majority of the court, but against the important dissent 
 of Lord Abinger, that such intention was admissible.^ 
 
 Among other modes of terminating the transit by constructive 
 delivery, may be mentioned a delivery of the key of the vendor's 
 warehouse to the purchaser ;2 or a receipt by the vendor of rent 
 for the use of his warehouse ; ^ or demanding and marking the 
 goods by an agent of the buyer, at the inn which they had 
 reached at the end of the journey ;* or the seller's permitting the 
 goods to be resold, and marked by the second buyer ;^ and 
 we apprehend that permitting a resale would alone be suffi- 
 cient. 
 
 Any delivery of fhe goods to an agent of the buyer authorized 
 to receive them, will terminate the transit or otherwise, accord- 
 ing to the purpose for which they are received. If to be still 
 sent forward to the buyer, the receiver is only an agent to con- 
 tinue the transit;^ but if they are to rest where received, and 
 remain there subject to the final disposal of the buyer, and, 
 therefore, could not be held as on their way to him, such a 
 reception would terminate the transit.^ 
 
 1 James v. Griffin, 2 M. & W. 623. 
 
 2 Per Lord Kewjon, C. J., in Ellis v. Hunt, 3 T. E. 4G4, 468. 
 
 3 See ante, p. 343, note 1. 
 
 * Ellis V. Hunt, 3 T. R. 464. 
 
 5 Stoveld V. Hughes, 14 East, 308. 
 - ^ Thus, in Bucklej' v. Furniss, 15 Wend. 137, 17 id. 504, a party ordered a quantity 
 of merchandise, dirceting it to be forwarded to an intennediate place. After it arrived 
 it was delivered to a common earner employed by the purchaser, but before it reached 
 its final destination the vendor stopped it. Held, that there had been no delivery to 
 the vendee. See also, Mills v. Ball, 2 B. & P. 457 ; Coates v. Railton, 6 B. & C. 422 ; 
 Edwards v. Brewer, 2 M. & W. 375 ; Hause v. Judson, 4 Dana, 7 ; Cabeen v. Camp- 
 bell, Sup. Jiid. Ct., Penn., 1858, 6 Am. Law Register, 561. And the law is the same 
 where the delivery is to a packer ajspointed by the buyer. Hunt v. Ward, 3 T. R. 467 ; 
 Loeschman v. Williams, 4 Camp. 181. But if the warehouse' of the packer is used by 
 the buyer as his own, the law is otherwise. Scott v. Pettit, 3 B. & P. 469 ; Tucker v. 
 Humphrey, 4 Bing. 516 ; Leeds v. Wright, 3 B. & P. 320. 
 
 '' Dixon V. Baldwin, 5 East, 175 ; Valpy v. Gibson, 4 C. B. 837-; Leeds v. Wright, 
 3 B. & P. 320; Biggs v. Barry, 2 Curtis, C. C. 259.
 
 en. X.] -WHEN THIS RIGHT MAY BE EXERCISED. 355 
 
 G. Whether the Consignee may hasteji his own Possession. 
 
 What possession of the vendee terminates the transit, has 
 also been considered, in reference to constructive possession. 
 An erroneoiis view of this subject seems to have prevailed 
 for a while, in consequence of certain phrases, indicating that 
 actual and personal possession alone could have this effect, 
 which were used inconsiderately by judges of high authority. 
 We apprehend, however, that no court would now hold that 
 constructive possession might not have the full effect of actual 
 possession.^ 
 
 1 It was once said, by Lord Mamfield, in Hunter v. Beal, cited in Ellis v. Hunt, 3 
 T. R. 466, that goods must come to the corporal touch of the vendees, in order to termi- 
 nate the transit. This expression, as applicable to the facts of that case, was perfectly 
 correct, but it gave rise to the idea that the vendee could not' take constructive posses- 
 sion of the goods. Lord Kenyon also seems to have been of the opinion that an actual 
 possession was necessary. In Wright v. Lawcs, 4 Esp. 82, he used the following lan- 
 guage : " I once said, that, to confer a property on the consignee, a corporal'touch was 
 necessary. I wish the expression had never been used, as it saj-s too much." We 
 have seen that a delivery to an agent of the vendee, if the goods are not to be for- 
 warded, but to remain with the agent subject to the final disposition of the vendee, is a 
 termination of the transit. And so is a delivery on the wharf of the vendee, though 
 the- vendor claim to stop them before the vendee takes possession of them. Sawyer v. 
 Joslin, 20 Vt. 172. The goods, in this case, were shipped at Troy, N. Y., directed to 
 the purchaser at Vergenncs, Vt. They were landed upon the wliarf at Vergcnnes, 
 half a mile from the purchaser's place of business. The wharf was the place where 
 his goods were usually landed, and it was not customaiy for the wliarfinger, or the car- 
 rier, or any one of them, to have any care of the goods after they were landed ; but 
 the consignee was accustomed to transport the goods from the wharf to his place of 
 business, as was also the custom with other persons having goods landed there. The 
 goods, while on tlie wharf, were not subject to any lien for freight or charges. It was 
 held, that a delivery on the wharf was a constructive delivery to the vendee, and that 
 the riglit of stoppage was gone wlicn the goods were landed. The cases on this point 
 were thus classified by Ilall, J., wlio delivered the opinion of the court: " The cases 
 cited and relied upon by the plaintifrs counsel, where the transit was held not to have 
 terminated, will, I think, all lie found to fall within one or the other of the followin"' 
 classes : 1. Cases in which it has been held that the right of stoppage existed, where 
 the goods were originally forwarded on board of a ship chartered by the vendee. 
 2. Where the delivery of the goods to the vendee has been deemed incomplete, by rea- 
 son of his refusal to accept them. 3. Where goods remained in the custom-liouse, sub- 
 ject to a government bill for duties. 4. Where they were still in tlie hands of the car- 
 rier, or wharfinger, as his agent, subject to the carrier's lien for freights. 5. Wiierc the 
 goods, though arrived at tlicir port of delivery, were still on shipboard, or in the hands 
 of the ship's lighterman, to be conveyed to tlie wharf. 6. Wliere the goods had jier- 
 fqj-med part of their transit, but were in the hands of a middleman, to be forwarded on 
 by other carriers."
 
 356 ON THE LAW OF SHIPPING. [BOOK I. 
 
 A question has arisen whether a consignee, by taking posses- 
 sion of the goods prematurely, could terminate the transit and 
 with it the right of the seller, earlier than it would otherwise 
 cease. And it was held, that he could not.^ But it must be 
 difficult to lay down any rule on this subject, which must not 
 depend greatly upon the particular facts of a case. For, on the 
 one hand, no consignee should be permitted by a fraudulent an- 
 ticipation of delivery to deprive the buyer of a right which he 
 was preparing to exercise with all due diligence and in the usual 
 and proper way ; on the other hand, it cannot be maintained 
 that a consignee may not fairly exert himself to the utmost to 
 hasten the arrival of goods which he wishes to use in his busi- 
 ness, and that the consignor, when he sends them, has a certain 
 time allowed him for his stoppage in transitu, which is predicated 
 upon the usual course of transit, and is independent of the 
 buyer's position. It has never been supposed that a seller would 
 lose his right at a certain time, when the goods ought to be in 
 the hands of the buyer, whether they were so or not.^ 
 
 1 Hoist V. Pownal, 1 Esp. 240. The ship, in this case, arrived at Liverpool on the 
 9th of June, but being obliged to perform quarantine she was ordered back to a place 
 called Hoylake, for that purpose. The same day the assignee of the vendee went on 
 board and claimed the cargo, opened some chests of oranges, and put two persons on 
 board to maintain possession. On the 17th of June the goods were claimed by an 
 agent of the vendor. On the 18th the quarantine was ended and the ship came into 
 harbor, and on the 19th the cargo was delivered to the assignees. Lord Kenyan held, 
 that the voyage not being completed the right of stoppage remained, and the defend- 
 ants had no right to claim possession till the end of the voyage. 
 
 2 "Wright V. Lawes, 4 Esp. 82 ; Mills v. Ball, 2 B. & P. 457, 461 ; Oppenheim v. 
 Eussell, 3 B. & P. 42, 54. In Hoist v. Pownal, 1 Esp. 240, there was a bill of lading 
 which may have influenced Lord Kenyon's decision, as in Wright v. Lawes, supra, 
 where there was no bill, he decided that the vendee could take possession of the goods 
 before they arrived. But Mr. Baron Parke, in James v. Griffin, 2 M. & W. 623, 633, 
 speaking of these two cases, said : " It is somewhat difficult to understand how a bill of 
 lading, which is only a contract between the vendee and shipper for the carnage, can 
 make any difference." See also, Jones v. Jones, 8 M. & W. 431 ; Foster i'. Frampton, 
 6 B. & C. 107. In Wood v. Teatman, l5 B. Mon. 270, one Davis, of Tennessee, 
 went to Philadelphia and bought goods of the plaintiff with the fraudulent design of 
 never paying for them. The goods were packed in boxes, marked with his name and 
 address, as well as with the names of the vendors, and forwarded by the usual convey- 
 ance to Jacob Forsythe, Jr., a commission merchant at Pittsburg, on their way to 
 Tennessee. At Pittsburg they wei"e attached by a creditor of Davis for a debt of 
 $1,000. Davis, who was there, induced the defendant to relieve the goods from this 
 attachment, by accepting a draft at sixty days for the amount of the debt, which was 
 cashed by Forsythe, and the attachment discharged. As an indemnity, Yeatman ex-
 
 en. X.] WHEN Tnis right may be EXEnciSED. 357 
 
 H. Of the Delivery of a Part of the Goods. 
 
 Whether a delivery of a part of the goods terminates the 
 transit as to all, has also been questioned. We should lay down 
 the rule thus. If the purchase be made by a contract consisting 
 of severable parts, and not in itself entire, a delivery of one of 
 these parts would not terminate the transit as to the others. If 
 the contract were entire, the delivery of a part would terminate 
 the transit as a delivery of the whole, unless it could be shown 
 that the intention was to sever that part and deliver it by itself.^ 
 
 acted tliat the goods should be delivered to the house of Forsythc & Co., and by them 
 forwarded to him at Nashville, and refused to accept the draft unless this was done. 
 The goods were therefore delivered over to that house and by them shipped to a firm 
 in Smithland, an intermediate port, where goods arc usually reshipped up the Cumber- 
 land to Nashville. On the 21st of October, 1851, Yeatman attached these goods at 
 Smitiiland, on allegations of fraud against Davis, and subsequently Wood caused 
 attachments to be levied on the same goods, asserting his right to stop them in transitu. 
 The court held, that the acts of Davis were tantamount to an actual assumption of 
 possession and delivery to Yeatman, and that the right of the consignor to stop them 
 in transitu had ceased. It was held, in Jackson v. Nichol, 5 Bing. N. C. 508, that al- 
 though a reception by the vendee of the goods while on the journey, would operate a3 
 a termination of the transit, yet that a mere demand by the vendee without any de- 
 livery would not have this effect. So in the late case of Secomb v. Nutt, 14 B. Mon. 
 324. The vendor, at Wilmington, N. C, shipped goods to the house of ilarsh & 
 Rowlett of New Orleans, to be by them forwarded to the vendee at Cincinnati. The 
 vendee directed M. & K. to sell the goods if a certain price could be obtained, and they 
 accordingly sold a portion, but being unable to obtain the required price for the rest, 
 shipped it to the vendee. It was contended that the order given to M. & 11. put an 
 end to the transit, and that it changed the character of jM. & R. from that of mere for- 
 warders to tliat of special agents for the vendee, and that the latter, by giving the order, 
 assumed a control, and acquireil a dominion over the whole which was equivalent to 
 taking possession. But the court held, that, althougii the transit Iiad ceased as to the 
 goods sold, yet the vendor had a right to stop tlie othei-s. It was admitted that the 
 vendee might liave taken possession before tiie end of tlie journey, but the court said : 
 " Tiic intermediate act of the vendee must be such as produces an actual and substan- 
 tial or physical effect upon the condition and destination of the goods." 
 
 1 The first case in which this sulyect was broached, was Slubey v. Heyward, 2 II. BI. 
 504. The sale was of 7,061 bushels of wheat, the whole of which was entered by the 
 consignees at the custom-house, and 800 bushels taken away before the vendor 
 attempted to stop the remainder. The court held, that there had been a deliveiy of the 
 whole, there being no intention on the part of the consignees to separate the part taken 
 from the rest. And in Hammond r. Andei'son, 4 B. & P. 69, the delivery of part was 
 held to be a delivery of the whole. Tlic vendor and vendee lived in the same town, 
 and the goods (bacon in bales), lay at the wharf of a tliird person. They were sold for 
 an entire price to be paid for by a bill at two months. The vendee, having received an
 
 )58 ON THE LAW OF SHIPPING. [bOOK I. 
 
 I. Of the Effect of the Bill of Lading; on this Rig-ht. 
 
 The effect of the bill of lading upon the right of a seller to 
 stop the goods in transitu^ is very important. It was once quite 
 uncertain ; but we apprehend that the course of adjudication 
 and the principles which the law-merchant would bring to bear 
 upon this question, enable us to state with some certainty, the 
 American law on the subject. 
 
 The bill of lading may be regarded as only a receipt which the 
 carrier gives for the goods ; and then it would have but little effect 
 upon the right of stoppage. But the law-merchant regards it as 
 much more than this; as an important maritime document; and 
 we should say as a muniment of title generally, carrying prop- 
 
 order for tlic delivery of the property, went to the wharf, and weighed the wliole, and 
 took away part. See also, Jones v. Jones, 8 I\I. & W. 431. In Wentworth r. Outh- 
 waite, 10 M. & W. 436, several parcels of goods were purchased under one entire con- 
 tract from a party at Hull, by the consignee living at Mickley, about thirty miles from 
 Leeds. A part — two packages — was forwarded by the railroad to Leeds, and arrived 
 there. One of these was taken by the consignee to jMickley, and the other seized by 
 the sheriff at the suit of a creditor of the vendee. Some other parcels, comprised in 
 the same contract, which were forwarded by water carriage to Boroughbridge, were 
 stopped in transitu. The sheriff brought an action of trover to recover these parcels, 
 on the ground that the right of the vendors was gone, there being a part delivery, but 
 the court held, that the transit had not terminated. In Tanner v. Scovell, 14 M. & W. 
 28, goods were shipped for London, and were landed at a wharf and entered on the 
 wharfinger's books in the consignor's name. The vendee had obtained a delivery order, 
 under which he had received and sold the greater part. The court held, that as to the 
 rest the right of stoppage existed. So in Hanson v. Meyer, 6 East, 614, the vendor 
 sold all his starch lying at the warehouse of a third party at so much per cwt. The 
 warehouse-man was directed to weigh and deliver it to the vendee. It was held, that 
 a part having been weighed and delivered, the right of stoppage existed as to the resi- 
 due. See also, Simmons v. Swift, 5 B. & C. 857. Miles v. Gorton, 2 Cromp. & M. 
 504, was an action by the assignees of a bankrupt against the vendor. The goods sold 
 consisted of twelve pockets of Kent hops and ten pockets of Sussex. An entire price 
 was given. The goods remained in the warehouse of the vendors. The vendee resold 
 the ten pockets of Sussex hops, and delivered them to the sub-vendee. The other 
 twelve remained in the warehouse of the vendors till after the vendee became bankrupt. 
 Held, that on these the vendor had not lost his lien. See also, Dixon v. Yates, 5 B. & 
 Ad. 313; Bunney v. Poyntz, 4 B. & Ad. 568. In Secomb i: Nutt, 14 B. Mon. 324, 
 a part of the goods was sold while on the journey by the order of the consignee. Held, 
 that the original vendor had a right to stop the residue. See also, Buckley v. Furniss, 
 17 Wend. 504. There is a dictum of Mr. Justice Taunton, in Betts v. Gibbens, 2 A. & 
 E. 57, 73, 4 Nev. & M. 64, 76, to the eifect that a partial delivery is jyrima facie a 
 delivery of the whole. But the correctness of this doctrine has been denied. See 
 Tanner v. Scovell, 14 M. & W. 28, 37.
 
 CH. X.] WHEN THIS RTGUT MAY BE EXERCISED. 359 
 
 erty with it, and as itself a negotiable instrument. This the 
 common law does not allow. It seems to have settled down, 
 after some fluctuation, into the doctrine, that it is not properly 
 speaking negotiable, but only quasi negotiable.^ If by this is 
 meant that the assi^iee cannot bring an action on it in his own 
 name, but must bring the action in the name of his assignor, 
 who is the original consignor, and that the action so brought 
 shall be subject to no other defences than could be made if it 
 were brought in the name of the assignee, there is no great prac- 
 tical harm in it. But the English courts have doubted, to say 
 no more, whether a transfer by indorsement of the bill of lading 
 for value, was, or operated as, an actual transfer of the goods.^ 
 
 1 Though bills of lading have sometimes been called negotiable instruments, as in 
 Berkley v. Watling, 7 A. & E. 29, Bell v. Moss, 5 Whart. 189, 205, yet the law may 
 now be considered as settled that they are only quasi negotiable. Sec Gurncy v. 
 Behrend, 3 Ellis &. B. 622, 25 Eng. L. & Eq. 128, 136, and cases cited ante, p. 138, 
 n. 3. 
 
 " Evans v. Marlett, 1 Ld. Eaym. 271, 12 Mod. 156, 3 Salk. 290, is one of the ear- 
 liest cases in which this subject is mentioned. HoU, C. J., there said : " The con- 
 signee of a bill of lading has such a property that he may assign it over." Shower 
 also said that it had been adjudged so in the Exchequer. Lord Mansfield, in Wright 
 V. Campbell, 1 W. Bl. 628, 4 Burr. 2046, said : " If the goods are bond fide sold by 
 the factor at sea (as they may be, where no other delivery can be given), it will be 
 good, notwithstanding the statute of 21 Jac. 1, c. 19, the vendee shall hold them by. 
 vutue of the bill of sale, though no actual possession is delivered : and the owner can 
 never dispute with the vendee; because the goods were sold bond fide and by the own- 
 er's own authority." The court, being of opinion that there were circumstances tend- 
 ing to show that the assignment was fraudulent, ordered a new trial to determine that 
 fact. See also, Caldwell v. Ball, 1 T. K. 205; Ilibbcrt v. Carter, 1 T. 11. 745. The 
 leading case on the subject is Lickbarrow v. Mason. The facts of this case were as 
 follows : Messrs. Turing & Co. merchants at Sliddlcbourg, shipped the goods in 
 question for Liverpool by the order and on the account of one Freeman of Kotterdam, 
 and drew bills of exchange on him for the price. The master of the ship signed four 
 bills of lading for tlie goods in the usual form unto order or assigns ; two of which 
 were indorsed by Turing and Sou in blank, and sent to Freeman together with an 
 invoice of the goods. Another bill was retained bj' Turing and Son, and the remain- 
 ing one kept by Holmes. The two bills of lading which were sent to Freeman he 
 handed over, with the invoice, in the same state in which he received them, to the 
 plaintiffs, that they might sell the goods on his account, and drew bills of exchange 
 upon them for nearly the amount. Both sets of bills were accepted by Freeman and 
 the plaintiffs respectively, but before the ship arrived Freeman became a bankrupt, and 
 absconded, and Turing & Son sent another bill of lading to the defendants, who 
 thereby obtained possession of the goods from the master. The Court of King's 
 Bench, 2 T. R. 63, decided that the iudoi-semcnt of the bills of lading being hom't jide, 
 and for a valuable consideration to one who had no notice that the sroods had not been
 
 360 ON THE LAW OF SHIPPING. [bOOK I. 
 
 Bills of lading so generally contain the word "assigns," or 
 the word " order," that we assume this to be a part of them. 
 
 paid for, operated as an actual transfer of the property, so as to divest the consignor of 
 his riglit of stoppage in transitu. On appeal to the Exchequer Cliamber, this decision 
 was reversed by Lord Lougiiborough, 1 H. Bl. 357. The case was then removed into 
 the House of Lords, where the judgment of the Exchequer Chamber was itself re- 
 versed and a venire de novo awarded. 2 H. Bl. 211, 5 T. R. 367. The able opinion of 
 Ml-. Justice Bullei- before the House of Lords is reported in 6 East, 21, note. On the 
 second trial the jury found a special verdict, on which the Court of King's Bench de- 
 clined giving any opinion, as it was understood that the case was to be carried up to 
 the House of Lords ; they stated, however, that they were of the same opinion as in 
 the former case. 5 T. R. 683. If a writ of error was brought, it was probably aban- 
 doned, as no further report of the case appears. See also, Salomons v. Nissen, 2 T. R. 
 674 ; Haillc v. Smith, 1 B. & P. 563 ; Jcnkyns v. Usbornc, 7 Man. & G. 678, 699 ; Pennell 
 V. Alexander, 3 Ellis & B. 283, 24 Eng. L. & Eq. 132. In Newsom v. Thornton, 6 
 East, 17, 41, Lord Ellenhorough, C. J., said : " A bill of lading indeed shall pass the prop- 
 erty upon a bond fide indorsement and delivery, where it is intended so to operate, in 
 the same manner as a direct delivery of the goods themselves would do, if so intended. 
 But it cannot operate further." And Mr. Justice Lawrence in the same case added : 
 " In Lickbarrow v. Mason, some of the judges did indeed liken a bill of lading to a bill 
 of exchange, and considei'cd that the indorsement of the one did convey the property 
 in the goods in the same manner as the indorsement of the other conveyed the sum for 
 which it was drawn. But in the Exchequer Chamber there was much argument to 
 show that, in itself, the indorsement of a bill of lading was no transfer of the property, 
 though it might operate as other instruments as evidence of the transfer." And in 
 Gurney i'. Behrend, 3 Ellis & B. 622, 25 Eng. L. & Eq. 128, 136, Lord Campbell, 
 C. J., said : "A bill of lading is not, like a bill of exchange or promissory note, a 
 negotiable instrument which passes by mere delivery to a bond fide transferree for valua- 
 ble consideration, without regard to the title__of the parties who make the transfer. 
 Although the shipper may have indorsed in blank a bill of lading deliverable to his 
 assigns, his right is not affected by an appropriation of it without his authority. If it 
 be stolen from him or transferred without his authority, a subsequent bond fide trans- 
 ferree for value cannot make title under it as against the shipper of the goods. The 
 bill of lading only represents the goods, and in this instance the transfer of the symbol 
 does not operate more than a transfer of what is represented." In this country it is 
 well settled that the bill of lading is quasi negotiable only. Thus in Everett v. Saltus, 
 15 Wend. 474, nom. Saltus v. Everett, 20 Wend. 267, the master of a vessel in which 
 goods were shipped, fraudulently reshipped them at an intermediate port, and obtained 
 a bill of lading for them which he transmitted to his agents, who sold the goods and 
 indorsed over the bill of lading to the vendee, who acted bona fide. Held, that the 
 original owner was entitled to the goods. See also, generally, Stubbs v. Lund, 7 Mass. 
 453; Peters v. Ballisticr, 3 Pick. 495 ; Rowley v. Bigelow, 12 Pick. 307, 314; Stanton 
 V. Eager, 16 Pick. 467 ; Chandler v. Sprague, 5 Met. 306, 308 ; Conard v. Atlantic Ins. 
 Co., 1 Pet. 386, 445; Chandler v. Belden, 18 Johns. 157 ; Walter i\ Ross, 2 Wash. 
 C. C. 283 ; Ryberg v. Snell, 2 Wash. C. C. 294 ; Dawes v. Cope, 4 Binn. 258 ; The 
 Schooner Mary Ann Guest, Olcott, Adm. 498, 1 Blatchf. C. C. 358; Winslow v. 
 Norton, 29 Maine, 419. But if the bill of lading be transferred and indorsed by way 
 of pledge to secure the consignee's debt, the consignor does not lose his right to stop 
 the goods in transitu, but holds it subject to the rights of the pledgee. That is, he may
 
 CH. X.] TTHEN THIS RIGHT MAT BE EXERCISED. 361 
 
 These words, alone, would not suffice to make them negotiable 
 instruments. But the nature and use of the instrument, and the 
 mercantile practice under it, and the unreasonableness of depriv- 
 ing a consignee and buyer of all power of effectually selling his 
 goods " to arrive," or when they are at sea (which can only be 
 done by transfer of the bill of lading), all these considerations 
 lead us to regret that there has not been a fuller recognition of 
 the negotiability of the bill of lading. In despite of Lord 
 Loughborough'' s elaborate argument,^ it seems to be very nearly 
 as desirable that the bill of lading should be considered in all 
 respects negotiable, as that bills and notes to order should be. 
 
 The bill of lading is made sometimes to the consignor or his 
 order, or his assigns ; sometimes to the consignee or his order or 
 assigns. If transferred without indorsement, we should say it 
 carried no title to the property ; the mere possession of it not 
 having any more effect than the mere possession of unindorsed 
 promissory paper.^ And if indorsed specially, the indorsee would 
 be bound by the limitation, and any one to whom he transferred 
 it would be bound also.^ 
 
 But if it were made to the consignee or his order or assigns, 
 and the consignor sent it to him ; or if it were made to the con- 
 signor and his order or assigns, and the consignor indorsed it 
 either in blank or to the consignee, and sent it to him in 
 that state, then we should say that the consignor or seller, had 
 put into the hands of the consignee or buyer, a muniment and 
 evidenoe of property, transferable in itself, and justifying a third 
 party without notice in believing that the consignee had a right 
 
 enforce his claim to hold the suqilus of the value of the goods, after the pledgee's 
 claim is satisfied ; and he holds this surplus to secure the debt of the consignee to 
 him. And if the consignee has pledged some of his own goods together with those of 
 the consignor, the latter would have a right to insist upon the appropriation of all the 
 consignee's own goods towards the claim of the pledgee, before any of the goods con- 
 tained in the bill of lading. In re Westzinthus, 5 B. & Ad. 817. The consignor is 
 only bound to tender to the pledgee the amount of the specific advances made on the 
 particular bill of lading, and is not liable for a general balance of account. Spalding 
 V. Ending, 6 Beav. 376. 
 
 1 Lickbarrow v. Mason, 1 II. Bl. 357. 
 
 2 Stone V. Swift, 4 Pick. 389 ; Walter r.Ross, 2 Wash. C. C. 283; Tucker v. Hum- 
 phrey, 4 Bing. .516, per Park, J. 
 
 3 Barrow v. Coles, 3 Camp. 92. So held also in the case of a bill of exchange. 
 Lloyd r. Howard, 15 Q. B. 995, 1 Eng. L. & Eq. 227. See also the authorities cited 
 in a note to this case, p. 230, 231. 
 
 VOL. I. 31
 
 «362 ON THE LAW OF SHIPPING. [BOOK I. 
 
 to make an absolute sale of the goods to him.^ We therefore 
 conclude that a consignee who sells the goods for value to 
 arrive and indorses over the bill of lading, confers upon the pur- 
 chaser a title and ]3roperty which destroy the right of the seller 
 of the goods to stop them in transitu. 
 
 To this rule, however, there is this important qualification. 
 If the party buying from the consignee knows that the sale is in 
 fraud of the original seller, it is voidable by that seller of course. 
 And if he knows that the consignee is, or is about to become, 
 insolvent, this knowledge would, we think, have the same effect. 
 That is, it would in fact be conclusive evidence of a knowledge 
 on his part of the consignee's fraud. But if the consignee was 
 aware of his own insolyency, and even of an intended stoppage 
 iti transitu^ and sold the goods to prevent this, unless the pur- 
 chaser had some knowledge, or adequate means of knowledge, of 
 this fraud, he should not, on the general principles of sale and 
 transfer, be aftected by it.^ It is not enough that the sub-vendee 
 have notice or knowledge that the goods have not been paid for, 
 but he must have notice or knowledge of circumstances which 
 rendered the bill of lading not properly assignable.'^ 
 
 It has already been remarked that a consignee who has not 
 this power, has in fact no practical power of sale ; and the inter- 
 ests of commerce would be importantly interfered with by any 
 such deprivation. For if he could, without this power, make a 
 contract for the sale of the goods while at sea, this contract 
 would be subject to his ultimate power of receiving thetgoods; 
 and, this being uncertain, the consignee could not get his pay. 
 The contract to sell would be avoided, so far as the sale was 
 
 ^A delivery is also nccessaiy. Biiffington v. Curtis, 15 Mass. 528; Low t'. De 
 Wolf, 8 Pick. 101 ; Allen v. Williams, 12 id. 297, 300; Gurney v. Belirend, 3 Ellis & B. 
 622, 25 Eng. L. & Eq. 128. 
 
 - Salomons v. Nissen, 2 T. E. 674. 
 
 3 Cuming v. Brown, 9 East, 506, Lord EUenhorongh, C. J., in this case stated the law 
 as follows : If the plaintiff "had known that the consignee had been in insolvent circum- 
 stances, and that no bill had been accepted by him for the price of the goods, or that, being 
 accepted, it was not likely to be paid ; in that ease the interposition of himself between 
 the consignor and consignee, in order to assist the latter to disappoint the just rights 
 and expectations of the former, would have been an act done in fraud of the consignor's 
 right to stop in transitu, and would, therefore, have been unavailable to the party tak- 
 ing an assignment of the bill of lading under such circumstances, and for such purpose." 
 See also, ante, p. 361, note 3.
 
 CII. X.] WHEN THIS RIGHT MAT BE EXERCISED. 363 
 
 concerned, by a stoppage in transitu, which should prevent the 
 consignee from getting the goods into his possession and power. 
 And no prudent mercl^nt would pay down his money or give 
 his negotiable paper on any such contingency. But it would be 
 otherwise, as every day's practice shows, if the consignee could 
 make a present and effectual sale of the goods, with actual 
 transfer of the property in them, by his indorsement and trans- 
 fer of the bill of lading. And we cannot doubt that the princi- 
 ples of the law-merchant would give him this power. 
 
 If the consignee be a factor only, he has the goods only to 
 sell them for his principal; and, therefore, has no authority to 
 pledge them.i But if the coi^ignor has sent to his factor the 
 usual and unrestricted bill of lading, has he not clothed him 
 with the indicia of authority, and can he be permitted to deny 
 the authority itself? Tiiis question has been somewhat agitated 
 both here and in England. x\s the result of adjudication, there 
 and here, it seems to be settled that a factor cannot pass the prop- 
 erty of the goods by his indorsement and transfer of the bill of 
 lading, by way of pledge to a party who did not know that the 
 goods were not the factors.^ Statutes in England,^ and similar 
 
 ^ This point was first decided in the case of Patersoa v. Tash, briefly reported 2 Stra. 
 1178, as follows : "It was held by Lee, C. J., that though a factor has power to sell, 
 and thereby bind his principal, yet he cannot bind or aft'ect the property of the goods 
 by pledging them as a security for his own debt, though there is the formality of a bill 
 of parcels and a receipt." It is stated in Abbott on Shipping^ p. 541, that there is 
 reason to suppose that this case was incorrectly reported. See also, the argument of 
 counsel in Newbold v. Wright, 4 Rawlc, 195. However tliis may be, the law, as there 
 stated, is now the well-settled doctrine of England and of this country. Daubigny v. 
 Duval, 5 T. R. 604 ; Solly v. Rathbone, 2 M. & S. 298 ; Grahnra v. Dyster, 6 M. & S. 
 1; Baring v. Corrie, 2 B. &, Aid. 137, 14-3; Kuckein v. Wilson, 4 B. & Aid. 443; 
 Fielding v. Kymer, 2 Urod. & B. C39 ; Quciroz v. Trueman, 3 B. & C. 342 ; Grecnway 
 V. Fisher, 1 Car. & P. 190 ; Williams v. Barton, 3 Bing. 139 ; Stierneld v. Ilolden, 4 B. 
 & C. 5 ; Sellcck v. Smith, 3 Bing. G03. And in this country the law is the same. 
 Kinder v. Shaw, 2 Mass. 398; Odiorne v. Maxcy, 13 Mass. 178; Hoffman v. Noble, 6 
 INIct. G8, 74; Evans v. Potter, 2 Gallis. 13; Van Amringc v. Peabody, 1 IMason, 440 ; 
 Kennedy v. Strong, 14 Johns. 128 ; Buckley v. Packard, 20 Johns. 421 ; Rodriguez v. 
 Ileffernan, 5 Johns. Ch. 417, 429 ; Ilolton v. Smith, 7 N. II. 446 ; Newbold v. Wright, 
 4 Rawle, 195 ; Ilewes v. Doddridge, 1 Rob. Va. 143 ; Bowie v. Napier, 1 JlcCord, 1 ; 
 Benny r. Rhodes, 18 Mo. 147 ; Benny v. Pegram, IS Mo. 191 ; Warner v. Martin, 11 
 IIow. 209, 226 ; Skinner v. Dodge, 4 Ilcn. & Munf. 432 ; Howard v. IMacondray, Sup. 
 Jud. Ct., Mass., Nov. T. 1856. 
 
 2 Martini i-. Coles, 1 JI. & S. 140; Sliipley v. K^-mer, id. 4S4 ; Ncwsom v. Thorn- 
 
 3 4 Geo. 4, c. 83 ; 6 Geo. 4, c. 94 ; 5 & 6 Vict. c. 39.
 
 364 ON THE LAW OF SHIPPING. • [BOOK I. 
 
 laws in some of our States,^ protect the transferree in such a case. 
 And this legislation is in conformity with the practice of the 
 
 , [ 1 
 
 ton, 6 East, 17. The case of Wright v. Campbell, 4 Burr. 2046, was decided on the 
 ground that the transaction was a sale, and so within the scope of the factor's authority, 
 and is not, therefore, contrary to tlie other decisions, as has been sometimes sup- 
 posed. 
 
 1 These statutes enact generally that any consignee, agent, or factor, having posses- 
 sion of merchandise with authority to sell the same, or having possession of any bill 
 of lading, permit, certificate, or order for the delivery of merchandise with the like au- 
 thority, shall be deemed the true owner thereof so as to give validity to the sale, dispo- 
 sition, or pledge of such merchandise, as secui'ity for any advances, negotiable paper, 
 or other oljligations given on faith thereof. Maine R. S. (1857), tit. iii. ch. 31 ; Mass. 
 Stat. (1845), ch. 193, Stat. (1849), ch. 216*Rev. Stat. R. I. (1857), ch. 116; N. Y. 
 R. S. (1830), ch. 179, p. 203; (1852), (Denio & Tracy's ed.), part II. ch. iv. tit. v.; 
 Laws of Penn. (1834), ch. 470; Ohio Rev. Stat. (1844), (Swan's ed.), 278. By 
 the statutes of some of the States the .pledgee cannot retain the merchandise if 
 he had notice that the fiictor was not the true owner, before he made the advances, 
 for which the merchandise was pledged as security. But the third section of 
 the 216th chapter of Stat. (1849), Mass., provides that the pledge shall hold 
 good, "notwithstanding the person making such advances upon the faith of such 
 deposit or pledge, may have had notice that the person with whom he made 
 such contract was only an agent : provided, however, that this act shall give validity 
 only to such contracts, and shall protect only such loans, advances, and ex- 
 changes, as shall be made in good faith, and with probable cause to believe that the 
 agent making such contracts had authority so to do, and was not acting fraudulently 
 therein, against the owner of such merchandise." If the merchandise was pledged to 
 secure antecedent advances, tlie pledgee acquires no other right, or interest in the pledge 
 than was possessed, or could have been enforced by the agent or factor, at the time of 
 making the pledge. Maine R. S. ch. 31, § 2; Mass. Stat. (1839), ch. 216, § 4; 
 Rev. Stat. R. I. (1857), ch. 116, § 3; N. Y. R. S. (1830), ch. 179, § 4; (1852), 
 (Denio & Tracy's ed.), part II. ch. iv. tit. v.; Laws of Tenn. (1834), ch. 470, 
 § 4. Very few questions which have arisen under these statutes have been 
 decided. In New York the third section of the act of 1830 provides that the 
 factor shall be deemed owner, etc., "so far as to give validity to any contract 
 made by such agent with any other person, for sale or disposition of the whole or 
 any part of such merchandise, for any money advanced, or negotiable instrument, or 
 other ohligation in writing, given by such other person upon the faith thereof." In Jennings 
 u. Merrill, 20 Wend. 9, it was held, under this section, that, where goods were in the 
 possession of the factor, a transfer of the invoice to the dcfendantsybr indorsements to be 
 made on the faith of it upon the paper of the factor came within the statute. The statute 
 of New York, 1830, was intended to protect advances and dealings made on the faith 
 of ownership, and not on the faith of the possession of the paper title or the evidences 
 of title. It was, therefore, held, in a case where this question arose, that where a per- 
 son advanced money to a factor on the security of certain goods, he knowing at the 
 time that they were the property of another person, he was not entitled to the protec- 
 tion of the statute. Stevens v. Wilson, 6 Hill, 512, affirmed 3 Den. 472. See also, 
 Zachrisson v. Ahraan, 2 Sandf. 68, 75. In this last case it was also held, that a gen- 
 eral clerk of a merchant, part of \^ose duty it was to prepare and present bills of 
 lading for signature on shipping property of his principal, had not such control of the
 
 en. X.] WHEN THIS RIGHT MAY BE EXERCISED. 365 
 
 merchants of continental Europe,^ and, as we think, with sound 
 policy and the true principles of the law-merchant. 
 
 It is always to be remembered that the mere possession of the 
 bill of lading does not give a property in the goods, unless it be 
 a lawful possession, or unless the transferree is fully justified in 
 believing it to be a lawful possession and has paid for the goods 
 on that supposition.^ Hence, if a master, who usually or per- 
 haps always has one copy of the bill of lading for his own use 
 and guidance, which he is not expected or indeed authorized to 
 hand to any other person, dp in fact give it to the consignee or 
 other person, even if it be so indorsed as to be transferable by 
 delivery, it confers no right or title upon the receiver of it.^ But 
 even such transfer, where the transferree has an equitable title to 
 the goods otherwise, may strengthen it. And a mere deposit of 
 the bill of lading, even if unindorsed, will create a lien on the 
 goods for the amount paid on tfie security of the deposit ; and 
 this lien will prevail against the right of the seller to stop the 
 goods in transitu,^ but it does not destroy that right, for the seller, 
 by discharging this lien, may take possession of the goods. 
 
 bills of lading as constituted him a factor. An important case has also been decided 
 under the first section of the same statute, which provides that "every person in whose 
 name any merchandise s'liall be shipped shall be deemed the true owner, so far as to 
 entitle the consignee of such merchandise to a lien," etc. Covill v. Hill, 4 Den. 323. 
 It was there held, that this section was confined to cases where the goods are shipped 
 bv the owner or under his authority, in the name of another, and, therefore, where a 
 person intrusted a quantity of lumber to another to be shipped, in the name of the 
 bailor, to certain parties, and the bailee wasto direct them to sell it in the name of the 
 bailor, and remit the proceeds to him, it was held, that the bailee, by shijiping tlie 
 goods in his own name, could not confer upon the consignees any better title than he 
 himself had. For decisions under the English statutes, see Monk v. Whittenbury, 2 
 B. & Ad. 484 ; Fletcher v. Heath, 7 B. & C. 517 ; Blandy v. Allan, 3 Car. & P. 447 ; 
 Taylor v. Trueman, Moody & M. 453 ; Baring v. Corrie, 2 B. & Aid. 137; Evans v. 
 Trueman, 1 Moody & R. 10; Close v. Holmes, 2 Moody & R. 22 ; Phillips v. Ilulh, 6 
 M. & W. 572 ; Taylor v. Kymer, 3 B. & Ad. 320. 
 
 1 Sec 1 Bell, Comm. B. 3, pt. 1, ch. 4, § 4, art. 412, p. 388-394, 4th cd. 
 
 2 See Gumey v. Behrend, 3 Ellis & B. G22, 25 Eng. L. & Eq. 128, 136; Covill r. 
 Hill, 4 Den. 323. 
 
 8 Walter v. Ross, 2 Wash. C. C. 283. 
 
 « Nathan v. Giles, 5 Taunt. 558. In Walter t'. Ross, 2 Wash. C. C. 283, 289, Mr. 
 Justice Waxliimjton states the law as follows : " The possession of a bill of lading to 
 order, not indorsed ; a promise by the shipper to indorse it, or to send a l)ill of lading; 
 or perhaps even a letter of advice, stating the shipment to be to a particuhir person, 
 may, as between these parties, and where tlie consideration is paid, give to the con- 
 signee an equitable title, sufficient to repel the right of the consignor to countermand, 
 
 31*
 
 366 ON THE LAAV OF SHIPPING. [bOOK I. 
 
 While the transfer of an indorsed bill of lading for value, by 
 one authorized to transfer it, will thus pass the property in the 
 goods, it does not follow that the property cannot be vested in 
 the consignee free from all lien, without the bill. For if one 
 orders goods, and they are sent to him, but the consignor takes 
 a bill of lading to himself and this is never indorsed nor trans- 
 ferred by him, yet if the master delivers the goods to the party 
 who ordered them, the consignor has lost his right of stoppage ; ^ 
 and this even if a bill of exchange or a note, which was given 
 for the goods, was dishonored. 
 
 SECTION IV. 
 
 HOW FAR THE EXERCISE OF THIS. RIGHT MUST BE ADVERSE TO THE 
 
 SELLER. 
 
 It is often said that the exercise of the right of stoppage by 
 the seller must be adverse, or in opposition to, the buyer.^ But 
 we doubt whether this is quite accurate.'^ If a consignee who 
 hears of goods sent to him and knows he cannot pay for them, 
 sends word to this effect to the consignor, that he may stop them 
 on their way, so that they may not pass into his assets, and the 
 consignor, availing himself of the information, complies with 
 the request, we should be unable to say, on any sound princi- 
 ple, that this might not be a lawful stoppage.^ The cases to 
 
 and even to defeat the legal right of the holder of the bill of lading, with notice of the 
 chcumstances." 
 
 1 Coxe V. Harden, 4 East, 211. 
 
 - Siffken v. Wray, 6 East, 371, 380, per Ld. Ellenhorough, C. J. ; Ash v. Putnam, 1 
 Hill, 302 ; Abbott on Shipping, 514. 
 
 3 In Xaylor v. Dcnnie, 8 Pick. 198, 204, the court said: ""We understand tliis doc- 
 trine to mean no more, than that the right of stopping in transitu cannot be exercised 
 under a title derived from the consignee ; not that it shall be exercised in hostility to 
 him ; for we find it laid down in the same case of Lane v. Jackson, and in Feise v. 
 Wray, 3 East, 93, that the consignment may be refused, and that, even by the direc- 
 tion of the consignee, some stranger may be appointed to take possession of the goods 
 for the consignor, though he may be absent, and if he consents afterwards, the rescind- 
 ing of the sale is complete." 
 
 * See Atkin v. Barwick, 1 Stra. 165, 10 Jlod. 432, Fortesc. 353 ; Salte v. Field, 5 
 T. R. 211 ; Richardson v. Goss, 3 B. & P. 119 ; Bartram v. Farcbrother, 4 Bing. 579, 
 1 Dan. & LI. 42 ; Scholfield i,-. Bell, 14 Mass. 40. In Dixon v. Baldweu, 5 East, 175,
 
 CU. X.] THE EXERCISE OF THIS RIGHT ADVERSE TO SELLER. 367 
 
 which the rule, that this right of the seller must be adverse to 
 the buy.er, is usually applied, are really very different, and 
 
 the goods were taken from the possession of the agents of the vendees by the vendor 
 on givin<i; an indemnity, he claiming a right to stop the goods in transitu. The court 
 hekl that the transitus was at an end, but tliat the vendors were entitled to the goods, 
 there being evidence that the vendee intended to resign his claim to them before 
 becoming insolvent. James v. Griffin, 1 M. & W. 20, 2 M. & W. 623, is an important 
 case on this subject. The vessel with the goods on board arrived at the port of Lon- 
 don. The captain pressed the consignee to have them landed immediately. The con- 
 signee, therefore, sent his son with directions to have the goods landed at a wliarf 
 where he was accustomed to have goods for him landed, and kept until he could take 
 them away for his customers. At the same time he told his son that he would not 
 meddle with the goods, that he did not intend to take them, and that the vendor ought 
 to have them. The goods were landed at the wharf and there stopped by the vendor. 
 The assignees of the banknipt brought an action against the wharfinger. The court 
 held that the goods belonged to the vendor. In the opinion of the court the case 
 turned on the point whether the acts done amounted to a taking possession of the 
 goods by the bankrupt as owner, and the intention of the bankrupt was to govern. 
 To prove this intention the declarations to the son were considered most material, 
 though they were not communicated to the defendants. In Smith v. Field, 5 T. R. 
 402, it was said that though a contract of sale might be rescinded by the consent of 
 vendor and vendee, yet where the vendee wished to return the goods, but the vendor 
 commenced a suit upon the contract of sale, and attached the goods in the hands of 
 the packer as the property of the vendee, this would be considered as an election by 
 the vendor not to rescind. In Ash v. Putnam, 1 Hill, 302, the riglit of the vendor to 
 take back his goods was put on the ground that the sale was rescinded, and so in 
 most cases. In James v. Griffin, 2 M. & W. G23, it seems to be considered as a right 
 of lien, though Parke, B., says it is unimportant to determine the point. See also, 
 Naylor v. Dennie, 8 Pick. 198; Grout v. Ilill, 4 Graj', 301. In Lane v. Jackson, 5 
 Mass. 157, the consignees, merchants in Boston, had ordered goods to be shi])]ied them 
 on credit by the plaintiffs' merchants in London. Before the arrival of the vessel the 
 consignees became insolvent, and while in this condition received advice of the ship- 
 ment, and one of the bills of lading. This they assigned by deed to one Bourne, direct- 
 ing him to receive the goods on their arrival, and dispose of them for the use of the 
 plaintiffs, in consideration of the said consignees being unable to pay for them. Bourne 
 covenanted to do the same. On the day the ship arrived. Bourne went on board, pre- 
 sented tlic bill of lading indorsed to him, and demanded the goods, which the master 
 agreed to deliver unless he was legally prevented. All these acts were done without 
 the knowledge or direction of the plaintiffs. The same day on which the ship arrived, 
 the goods were attached by the defendant, a deputy sheriff, at the suit of a creditor of 
 the consignees. They were subsequently replevied by the plaintiffs. The court admit- 
 ted that an insolvent consignee miglit, before he received the goods, disagree to the con- 
 signment, and the assent of tiic consignor would be presumed, unless, within a reason- 
 able time after notice given, he declared his dissent, or neglected to give notice of his 
 assent. And that if the goods arrived before notice could be given to tiie consignoi^ 
 any person, at tlie request of the consignee might receive and take care of them, until 
 the consignor had notice, and that an intermediate attachment would not defeat this 
 right. " For the insolvent consignee having refused to receive them, the goods are in 
 transitu, and may bo seized by the consignor wliile they continue in transitu. And on
 
 368 ON THE LA\y OF siiiprixG. [book I. 
 
 come under a different principle. If a seller sends his goods to 
 a buyer and the buyer receives them, and then seeks to restore 
 them to the seller, or even if they are brought to the buyer and 
 he refuses to take them, and then the question comes whether 
 the seller can profit by this return or refusal of the seller, it is a 
 question of rescission, and not of lien; and we have already 
 seen that the right of stoppage in transitu belongs to lien and 
 not to rescission. If the goods were actually received by the 
 buyer, the seller's lien is at an end ; and so we think it is if they 
 come actually within his power and immediate reach, and he 
 declines to take hold of them. And then comes the question 
 whether he and the seller can agree to rescind the sale, and 
 give back to the seller those goods, to which by the common 
 law, the assignees of the buyer are entitled, leaving to the seller 
 only his dividend with other creditors. This is not, we repeat, a 
 question of lien, and therefore not strictly a question of stop- 
 page in transitu. So far as it is a question of sale and rescis- 
 sion, it must be difficult to find a reason why goods which 
 have come to the bankrupt lately, or very recently, should be 
 returned to the seller, and goods received earlier only make a 
 common fund for all the creditors.^ 
 
 his giving notice of his assent, within a reasonable time, to the disagreement of the 
 consignee, the contract is rescinded ah initio, and nothing ever passed by it to the con- 
 signee." But the court were of opinion that these principles did not apply. They 
 said : " But this case is different. The consignees undertake here to assign the 
 goods, and authorize a sale thereof for the use of the consignor. This assignment is 
 not a disagreement, but an affirmance of the contract : and we cannot presume that 
 the consignor would consent to the appointment of a factor, Avith power to receive and 
 sell. The authority of the factor is derived from the consignee, and necessarily sup- 
 poses an interest in the goods. In our opinion the plaintiffs cannot support this action 
 upon the ground that tliey had never parted with their property by the supposed disa- 
 greement of the consignees." — And if the goods are not attached, in such a case, the 
 assignees of the bankrupt are entitled to them. Siffken v. Wray, 6 East, 371. 
 
 1 After the goods have come into tlie possession of the vendee, it is clear that he 
 cannot l)y sending them back give preference to one creditor over another, particularly 
 where the intention to return them is not completed till after the bankruptcy. Har- 
 man v. Fishar, 1 Cowp. 117, Lofft, 472; Barnes v. Freeland, 6 T. R. 80. See also, 
 Alderson r. Temple, 4 Burr. 2235; Siffken v. Wray, 6 East, 371. In Ilcinccke v. 
 Earle, Q. B., 20 Law Repoi'ter, 702, the vendee was in embarrassed circumstances 
 when the goods arrived, and desired that they should not be landed, but they were put 
 into his warehouse, and lie wrote to the vendors that he should warehouse the goods 
 for them if his business should stop. The vendors then wrote demanding the goods, 
 and the vendee repUcd that he had consulted his solicitor, who informed him that they
 
 en. X.] WHAT INSOLVENCY WILL GIVE THIS RIGHT. 360 
 
 SECTION V. 
 
 WHAT INSOLVENCY WILL GIVE THIS RIGHT. 
 
 It seems to be held that if the seller knew that the buyer was 
 insolvent when he sent the goods, he cannot stop them after- 
 wards.i This seems reasonable enough. But if the seller knew 
 the insolvency, it is impossible to suppose that he would send 
 them, in good faith, unless on some special ground of security, 
 or at least of belief of payment. And if the transaction were 
 honest, and this security failed and the belief passed away, we 
 know not why the seller might not stop the goods. It has how- 
 ever been held that to give the vendor the right to stop the goods 
 in transitu., the insolvency must take place between the time of 
 the sale and the exercise of the right of stoppage. But we are 
 not without much doubt whether this can be laid down as a pos- 
 itive and universal rule. For if there be such a rule, the mere 
 fact of insolvency at the time of the sale, whether known or un- 
 known to the vendor, would destroy the right of stoppage.^ 
 
 could not be returned. The property of the vendee was afterwards assigned to trus- 
 tees, and the keys of the wareliouse delivered to thcin. The court held that the transit 
 was ended when the goods were first put in the warehouse, and that there was no valid 
 and mutual rescission of the contract of sale. But sec Grout i-. Hill, 4 Gray, 361. 
 
 1 Buckley v. Furniss, 15 Wend. 137. 
 
 ^ This question seems to have been first raised in Rogers r. Thomas, 20 Conn. 53. 
 Storrs, J., there said : " The remaining inquiry respects the time wlien such insolvency 
 must occur, in order to confer this riglit. On this point, we arc of opinion, that it is 
 not sufficient it exists when the sale takes place, but that it must intervene between the 
 sale and the exercise of such right. It is well settled, tiuit after the sale, and before 
 the vendor has taken any steps to forward the projjerty to the vendee, the former has a 
 lien upon it, by virtue of wliich he may, on the occurrence of the insolvency of the 
 latter, retain the goods in his possession, as a security for the price. This is a strictly 
 analogous right to that of stopping them after they have been forwarded, and while 
 they arc on their way to the vendee, and depends on the same principles. And it may 
 be iicre remarked, that the cases decided on the subject of that right of lien, confirm 
 the views which we have expressed as to the meaning of insolvency as applied to the 
 right of stoppage, after the transitus has commenced. The same equitable principle, 
 which authorizes a retention of the possession, in the one case, and a recovery of it, in 
 the otlier, would seem to autliorize the latter, where the insolvency occurred after the 
 sale and before the forwarding of the projjerty. The riglit of stopping it after the
 
 370 ON THE LAW OF SIIIITING. [bOOK I. 
 
 Only a vendor can stop the goods ; for no one else has a lien 
 for the price. But a foreign merchant, who in compliance with 
 orders from here, sends goods, the price of which abroad he has 
 paid or is responsible for, is a seller or consignor within the re- 
 quirement of the law of stoppage in transitu.^ And so is one 
 who sends goods to be sold by the consignee on the joint 
 account of the sender and the consignee.^ And an alien enemy 
 who sent goods to England under a British license was there 
 permitted to stop them.^ But one who is only a surety for the 
 consignee to the consignor, in whatever form, whether as in- 
 dorser, guarantor, or otherwise, cannot, as we have already said,^ 
 have any lien on the goods, and therefore has no right to stop 
 them; even if they are sent through his hands. It might be in 
 such a case, that he might otherwise obtain indemnity or security 
 on the goods, as by attachment, if the circumstances permitted 
 it ; but not by a stoppage in transitu. Even if the sender has 
 a lien on the goods, if it be not the lien of the seller for the 
 
 transitus has commenced, may not, therefore, be limited to the case where insolvency 
 occurs after it has left the possession of the vendor, but it may extend to cases where 
 it occuiTcd at any time after the sale. However that may be, we are clear that it must 
 occur after the sale. In favor of this position there is the same argument, from an 
 entire absence of authority against it, as was derived from that source on the point 
 which we have just considered ; and it applies with equal force. We find no decided 
 case, in which the right in question has been sanctioned, excepting where the insol- 
 vency occurred subsequent to the sale. And although the language of the courts may 
 sometimes seem to import, that the right exists, iiTCspective of the time when the 
 insolvency took place, it is quite plain, that, applying their expressions to the cases 
 they were considering, and which did not involve this point, they were not intended to 
 have that construction. But in most of the decided cases on this subject, it will be 
 seen that their language is most unequivocal, and in terms limits the right of stoppage 
 to cases of bankruptcy or insolvency, occurring while the goods are in transitu, and of 
 course after the sale." In this case the vendee was insolvent at the time of the sale, 
 and had been so for a long time previous. Precisely the same state of facts existed, in 
 this respect, in Buckley v. Furniss, 15 Wend. 137, 17 id. 504, but the vendor there 
 was allowed to exercise his right, though it was thought that if the vendor knew the 
 facts it would be different. This case was cited by counsel in Rogers v. Thomas, but 
 was not noticed by the court. See also, Conyers v. Ennis, 2 Mason, 23G, where no 
 notice was taken of this distinction. It was unnecessary, however, to consider it, as 
 there had been a delivci'y to the vendee. And see Biggs v. Barry, 2 Curtis, C. C. 
 259. 
 
 1 See ante, p. 341, n. 1. 
 
 - Newsom r. Thornton, 6 East, 17. 
 "Fenton v. Pearson, 15 East, 419. 
 
 - See ante, p. 340, n. 3.
 
 en. X.] WHAT INSOLVENCY WILL GIVE THIS RIGHT. 371 
 
 price, he cannot stop them ; as if the sender had worked upon 
 them and had a lien for the wages or payment for what he has 
 donc.i Indeed, no one can exercise the right of stoppage in 
 transitu who has not a property in the goods. 
 
 Nothing but the insolvency of the buyer gives this right to the 
 seller ; and indeed it may be called a principle of maritime law, 
 that a consignor cannot vary or interfere with a consignment 
 once made, except on the ground of insolvency.^ But this need 
 not be legal or formal bankruptcy or insolvency ; it is enough if 
 the buyer cannot pay his debts.^ The seller who stops the goods 
 
 1 Sweet V. Pym, 1 East, 4. 
 
 2 Snee v. Prescot, I Atk. 245 ; The Constuntia, 6 Eob. Adm. 321. 
 
 3 In Eogers v. Thomas, 20 Conn. 54, Mr. Justice Storrs, on the meaning of the 
 phrase insolvency, said : " The cases on this subject generally mention insolvency as 
 one of the conditions on which the right of stoppage in transitu accrues ; but they aro 
 wholly silent as to what constitutes such insolvency ; aj^d, therefore, its sense, as thus 
 used, is to be gathered from the circumstances of the cases. For it is a term which is 
 used with various meanings. In a technical sense, it denotes the having taken the 
 benefit of an insolvent law; in the popular sense, a general inability to pay deljts ; and, 
 in a mercantile sense, a stoppage of payment, or iiiilure in one's circumstances, as 
 evinced by some overt act. That a technical insolvency is sufficient to authorize the 
 exercise of the right of stoppage in transitu, has always been conceded. That it is not 
 indispensable for that purpose, is equally clear. Mr. Smith, in his Compendium of 
 Mercantile Law, p. 549, n., expresses his belief, that merchants have very generally 
 acted as if the riglit to stop goods was not postponed till the occurrence of insolvency 
 in the technical sense, and pertinently adds : ' The law of stoppage in transitu is as old, 
 it must be recollected, as 1670, on the 21st of March, in which year Wiseman v. Van- 
 deput was decided ; so that if insolvency is to be taken in a technical sense, the law of 
 stoppage in transitu has been varying with the varied enactments of the legislature re- 
 garding it.' That stoppage of payment amounts to insolvency, for this purpose, is 
 assumed in many of the cases. Lord EUenhorowjh, in Newson v. Thornton, 6 East, 17, 
 places the right of the vendor to stop the property on the ' insolvency ' of the consignee, 
 where there had been only a stoppage of payment by the vendee, when notice was given 
 to the carrier, by the vendor, to retain the goods. In Vcrtue r. Jewell, 4 Camp. 31, 
 the terms used were, 'stopped payment.' See also, Dixon v. Yates, 5 B. & Ad. 313. 
 We have been able to find no case in which the right of stoppage in transitu has been 
 cither sanctioned or attempted to be justified on the ground of the insolvency of the 
 vendee, where there was not a technical insolvency, or a stoppage of payment, or fail- 
 ure in circumstances, evidenced bj' son\c overt act ; and Jlr. Blackburn, in his Treatise 
 on the Contract of Sale, ]). 130, where this subject is very minutely examined, says, 
 that there seems to have been no such case ; and adds, that although the text-books 
 and dicta of the judges do not restrict the use of the term ' insolvent,' or ' failed in his 
 circumstances,' to one who has stopped payment, there must be great practical difliculty 
 in cstablisiiing the actual insolvency of one who still continues to jniy his way ; and 
 as the carrier obeys the stoppage in transitu at his peril, if the consignee be in fact 
 solvent, it would seem no unreasonable rule to require, that at the time the consignee
 
 372 ON THE LAAV OF SIIIPPIXG. [UOOK I. 
 
 takes this risk on himself. The buyer, if not insolvent, can pay 
 the price, or if they were sold on credit, secure it, and then claim 
 the goods. And if the seller stopped them maliciously, or with- 
 out actual belief of insolvency on good grounds, he would 
 doubtless be answerable for any damages the buyer should sus- 
 tain thereby. Tf the goods were to be paid for by acceptances 
 or notes, and the buyer is willing to accept the bills or sign the 
 notes, and is not insolvent, the seller cannot stop the goods.^ 
 But if a compliance with the terms of the sale is refused by the 
 buyer, then the seller may refuse to deliver the goods, or, what is 
 the same thing, stop them in transitu. It is in fact insolvency so 
 far as he is concerned. 
 
 The seller's right to stop the goods cannot be defeated by any 
 bargain between the consignee and his assignee;^ or by any 
 claim, or lien, or attachment of any other person.^ It may be 
 
 was refused the goods, he should have evidenced his insolvency bj some overt act. 
 Mr. Smith, in his work wliich has been mentioned, clearly favors the same view. Comp. 
 Merc. Law, 130, n. Hence, it appears that the authorities and text writers furnish no 
 support to the claim, that a mere general inability to pay debts, unaccompanied with 
 any visible change in the circumstances of the debtor, constitutes insolvency, in such a 
 sense as to confer the right of stoppage in iratisiiu." 
 
 The rule generally laid down is, that a person is insolvent when he is not in a condi- 
 tion to pay his debts in the usual and ordinary course of trade and business. Shone v. 
 Lucas, 3 bowl. & K. 218; Bayly v. Schofield, 1 M. & S. 338 ; Biddlecombe i-. Bond, 
 4 A. & E. 332 ; Thompson v. Thompson, 4 Cush. 127, 134. In Secomb v. Nutt, 14 B. 
 Mon. 324, on the cpiestion whether the vendee was insolvent, the coml said : " To 
 establish insolvency it is not necessaiy to prove that he is not able to pay a cent, or any 
 particular sum, but it is sufficient to show that he is unable to pay his debts. The true 
 meaning and effect of the preference given to the vendor, while the goods sold on a 
 credit are in transitu, is that he is relieved from the necessity of a race for priority, and 
 of shaiing with general creditors the proceeds of goods sold by himself. To save him 
 from this scramble it is sufficient to show with reasonable certainty, that is, with prob- 
 ability, that the vendee is embarrassed and not able to make full or general payment of 
 his debts. And it would seem that the vendee's own admission of the fact to his 
 vendor would be sufficient to authorize the latter to act upon it, and should, unless dis- 
 proved, sustain his claim, to stop the goods in transitu." In Hays v. Mouille, 14 Penn. 
 State, 51, the vendee was indebted some $60,000, and his assets were only $26,000. 
 His creditors were watching for the goods which the vendor had sold, and attached them 
 while in transitu. The court held, that the jury were warranted in finding from these 
 facts that the vendee was insolvent. See also, Naylor v. Dennie, 8 Pick. 198, 205. 
 
 1 Wallcy V. Montgomery, 3 East, 585. See also, The Constantia, 6 Eob. Adm. 
 321. 
 
 2 See ante, p. 362, note 2. 
 
 8 Smith V. Goss, 1 Camp. 282; Le Eay De Chaumont v. Griffin, cited 15 "Wend.
 
 en. X.] now the right of stoppage may be exercised. 373 
 
 necessary for the seller to discharge the claim, as if. it be a lien 
 for freight ; ^ but even this is not necessary, where the attach- 
 ment is by a creditor of the buyer or consignee ; for the seller's 
 lien takes precedence. But if the goods have arrived at the jour- 
 ney's end, and are only prevented by the attachment from re- 
 moval by the consignee, this may prevail, on the ground that the 
 transit has ended and the lien gone.^ 
 
 SECTION YI. 
 
 HOW THE RIGHT OF STOPPAGE MAY BE EXERCISED AND ENFORCED. 
 
 The insolvency of the buyer alone, however complete, or how- 
 ever manifested, will not operate as a stoppage in transitu.^ The 
 goods must be actually stopped, in some way which the law recog- 
 nizes as adequate, by the seller or his authorized agent. It seems 
 to have been supposed formerly, that an actual taking possession 
 by the seller was requisite to complete this stoppage. That is 
 now, however, not necessary ; or, at least, not in all cases ; al- 
 though actual possession should always be taken if possible, and 
 as soon as possible. And this right of taking possession is so 
 complete that it justifies any mode of getting possession that is 
 
 144 ; Buckley v. Fnrniss, 15 Wend. 137 ; Covcll v. Hitchcock, 23 "Wend. 611 ; Naylor 
 V. Dennie, 8 Pick. 198; Haiise v. Jndson, 4 Dana, 7; Sccomb r. Nntt, 14 B. Mon. 
 324; Wood v. Ycatman, 15 B. Mon. 270; Parker v. M'lvcr, 1 Dcs. 274; Sawyer v. 
 Joslin, 20 Vt. 172. But a conveyance by an insolvent de!)tor of goods, in trust, to 
 pay tlic debt of a creditor, will not defeat an attachment made before he assents to the 
 transfer ; for the goods still remain the ijrojierty of the debtor, and as such are liable 
 to attachment. Lane v. Jackson, 5 Mass. 157, 1G3. 
 
 1 Sec ante, p. 3,50, D. 
 
 - In Hitchcock v. Covill, 2() Wend. 1G7, Nilsoii, C. J., seems to have been of this 
 opinion tliough the case was decided on another ground. If the goods have arrived at 
 their place of destination, but before tliey are delivered to the vendee, they are attached 
 by a creditor of his, and he takes no step to obtain the possession of them, the right of 
 the vendor still remains. Naylor v. Dcnnie, 8 Pick. 198. But if, M-liilc they arc 
 attached, he takes such possession as he is able to, prior to the assertion of the riglit of 
 the vendor, the transitus will be held to have terminated. Ellis v. Hunt, 3 T. li. 464. 
 
 3 Haswell i-. Hunt, cited 5 T. B. 231 ; Ellis c. Hunt, 3 T. R. 4G4; Scott v. Pcttit, 3 
 B. & P. 409, 471 ; Mottram v. Heyer, 5 Den. 629. 
 VOL. I. 32
 
 374 ON TUE LAW OF SHIPPING. [bOOK I. 
 
 not criminal.^ But, as the goods may be secured against stop- 
 page by passing into the constructive possession of the buyer, 
 so they may be efl'ectually stopped by the seller's acquiring a 
 constructive possession of them. This is usually and properly 
 done by giving notice to the carrier of the title and purpose of 
 the seller, and forbidding him to deliver the goods to the buyer, 
 and requiring him to give them up to the seller or his agent, or 
 to hold them subject to his order. This notice should be given 
 to the person who has actual possession of the goods.^ If given 
 only to the servant of the carrier, a question might arise whether 
 this would be sufficient. We may suppose, for example, that a 
 parcel sent by a carrier to a buyer had been delivered by the car- 
 rier to his porter, who was about to enter the buyer's home w^ith 
 it, when ordered by the seller's agent, of whom he knew nothing, 
 not to deliver it. We should say, however, even in so extreme 
 a case, that the buyer had succeeded in stopping the goods, and 
 if there had been no negligence on his part, and the porter still 
 went on and delivered the parcel to the buyer, that the seller 
 would have a lien on them, and might, if they were not paid for, 
 bring trover for them against the assignees of the buyer. 
 
 If notice is given to the principal and not to the servant, a 
 different question may arise ; and here it seems to be held, that 
 a notice to the principal carrier is not sufficient, unless given in 
 such way and at such a time, as to enable the principal carrier 
 to send word to his servant not to deliver the goods.^ 
 
 1 Snee v. Prescot, 1 Atk. 245, 250, per Lord Chancellor Hardwicke. 
 
 ^Litt V. Cowley, 2 Marsh. 457, 7 Taunt. 169; Hoist v. Pownal, 1 Esp. 240. In 
 Bell r. Moss, 5 Whart. 189, notice given to the assignees of the consignee was held to 
 be sufficient. But in Mottram v. Heyer, 5 Den. 629, 1 id. 483, the demand was made 
 of the vendee before the goods were delivered to him, and while they were in the cus- 
 tody of the custom-house officers. This was held insufficient. In such a case notice 
 should be given to the officers of the custom-house. Northey v. Field, 2 Esp. 613. 
 
 2 Whitehead v. Anderson, 9 M. & W. 518, is an important case on this point. Tim- 
 ber was sent from Quebec, to be delivered at Port Fleetwood in Lancashire. Notice 
 of stoppage was given to the ship-owner at Montrose, while the goods were on 
 their voyage, whereupon he sent a letter to await the arrival of the captain at Fleet- 
 wood, directing him to deliver the cargo to the agents of the vendor. This was held 
 not to be sufficient. ParJce, B., said : " To make a notice effective as a stoppage in 
 transitu, it must be given to the person who has the immediate custody of the goods ; 
 or if given to the principal, whose servant has the custody, it must be given, as it was 
 in the case of Litt v. Cowley, 7 Taunt. 169, at such a time, and under such circum-
 
 en. X.] now the right of stoppage may be exercised. 375 
 
 If a notice be properly given to the carrier, it is his duty to 
 comply with it. And if he does not, but actually delivers the 
 goods to the buyer after such notice, this delivery does not 
 defeat the right of the seller to stop the goods, if his demand 
 was in all respects legal. The possession of the buyer is then 
 unlawful, and will be held to be by construction of law the pos- 
 session of the seller. And the carrier will be responsible to 
 the seller for all the injury he may sustain.^ Or, if the buyer 
 becomes insolvent, and the goods pass into the possession 
 of his assignees, the seller may bring an action of trover 
 against the assignees.^ And if the carrier, in whose hands the 
 goods are duly stopped, delivers them to the buyer by mistake, 
 the latter does not obtain such possession of the goods as will 
 defeat the lien of the seller.^ If, however, both parties claim the 
 goods of the carrier, as of a ship-master, for example, he should 
 ask an indemnity from the person whose claim seems to him 
 best founded; if refused, he may ask an indemnity from the • 
 other party, and on that deliver it. There is no legal obligation 
 imposed on either party to give such indemnity, but if circum- 
 stances warranted the master in asking it, and it was refused, 
 and thereupon he refused to deliver the goods, the rightful 
 claimant would doubtless recover them, or their value, but 
 nothing, we think, by way of cost or damages for the detention. 
 If the goods are in the custom-house, the seller may take pos- 
 session by entering them as his own and paying or securing the 
 duties.* 
 
 stances, that the principal, by the exercise of reasonable dili<;cnce, may communicate it 
 to his servant in time to prevent the delivery to the consignee ; and to hold that a notice 
 to a principal at a distance is sufficient to revest the property in the unpaid vendor, and 
 render the principal liable in trover for a subsequent deliver}' by his servants to the 
 vendee, when it was impossible, from the distance and want of means of communica- 
 tion, to prevent that delivery, would be the height of injustice. The only duty that can 
 be imposed on the absent principal is, to use reasonable diligence to prevent the deliv- 
 ery ; and in the present case such diligence was used." 
 
 1 Wood V. Jones, 7 Dowl. & R. 126 ; Stokes r. La Riviere, cited 3 East, 397 ; Hun- 
 ter V. Beal, cited 3 T. R. 466. See however, Mills v. Ball, 2 B. & P. 457, 462, per Lord 
 Alvanley, C. J. 
 
 2 Bohtlingk v. Inglis, 3 East, 381 ; Litt v. Cowley, 2 Marsh. 457, 7 Taunt. 169 ; 
 and cases passim. 
 
 8 Litt V. Cowley, 2 Marsh. 457, 7 Taunt. 169. 
 
 * Nix V. Olive, Abbott on Shipping, 538 ; Ex parte Walker, 1 Cooke's B. L. 394.
 
 376 ON THE LAW OF SHIPPING. [bOOK I. 
 
 What the consignor may do personally, he may do by an 
 authorized agent.^ And if the demand be made by one who 
 acts as agent but without authority, a subsequent adoption and 
 ratification will have the effect of a previous authority, provided 
 this be made before the goods are demanded by the buyer.^ If 
 made afterwards, it is said, it cannot give validity to the stop- 
 page.3 
 
 On the continent of Europe generally, the right of stoppage 
 in transitu is controlled, or rather made unnecessary, by the 
 .principle derived from the civil law, already referred to, which per- 
 mits any creditor to take out of the debtor's possession, the goods 
 which he sold, if they can be identified and separated, and the 
 parcels have not been opened for sale, or the goods altered. 
 But, in France, after some conflict, it seems to be settled that 
 the law of stoppage in transitu is almost the same as our own.* 
 There is, however, one provision of its code, not often called for, 
 ^perhaps, in practice, but so manifestly just and reasonable, that it 
 should be adopted here. It is that the estate, or the assignees of the 
 purchaser of goods which the buyer has stopped and taken into 
 
 1 Hoist V. Pownal, 1 Esp. 240 ; Whitehead v. Anderson, 9 M. & W. 518; Donath 
 V. Bi-oomhead, 7 BaiT, 301 ; Mottram r. Heyer, 5 Den. 629. If an agent has it in his 
 power to stop the goods but neglects to do so, he is liable in an action by the princi- 
 pal against him. Howatt v. Davis, 5 Munf. 34. 
 
 2 Wood V. Jones, 7 Dowl. & R. 126; Newhall v. Vargas, 13 Maine, 93. See also, 
 Nicholls V. Lc Fcuvre, 2 Bing. N. C. 81 ; Bailey v. Culverwell, 8 B. & C. 448 ; Bar- 
 tram V. Farebrother, 4 Bing. 579. If one unauthorized takes possession of the goods 
 before they reach the vendee, the question is quo animo he does it, whether as agent 
 of the consignor, or of the vendee. Per Parke, B., James v. Griffin, 1 M. & W. 
 20, 29. 
 
 2 Bird V. Brown, 4 Exch. 786. The persons who stopped the goods in this case 
 were not even the general agents of the vendors. But in Newhall v. Vargas, 13 
 Maine, 93, a ratification, after the goods were demanded by the administrator of the 
 consignee, who had died insolvent, was held to be effectual. The principle upon which 
 the court proceeded in the case of Bird v. Brown, seems to us to be the more correct. 
 It is that the act of ratification must take place at a time, and under circumstances, 
 when the ratifying party might himself have lawfully done the act which he ratifies. 
 The court said : " In the present case, the stoppage could only be made during the 
 transitus. During that period the defendants, without authority from Illins, made the 
 stoppage. After the transitus was ended, but not before, Illins ratified what the de- 
 fendants had done. From that time the stoppage was the act of Illins, but it was 
 then too late for him to stop. The goods had already become the property of the 
 plaintifts, free from all right of stoppage." 
 
 * See ante, p. 336, n. 3.
 
 CH. X.] HOW THE RIGHT OF STOPPAGE MAY BE EXERCISED. 377 
 
 his possession, shall be fully indemnified for all the costs and 
 charges which they have properly incurred on account of them.^ 
 Indeed, this is only an unusual application of the same principle 
 which the law-merchant already applies to stoppage in transitu, 
 in reference to freight. 
 
 1 Code de Commerce, art. 579. "In case of stoppage in transitu, the vendor shall 
 be bound to indemnify the estate of the insolvent for all advances for freight, or trans- 
 portation, commission, insurance, or other charges, or to pay the sums due for these 
 expenses if they have not been discharged." 
 
 32^
 
 378 ON THE LAW OF SHIPPING. [BOOK I. 
 
 CHAPTER XL 
 
 OF THE DUTIES AND POWERS OF THE MASTER. 
 
 SECTION I. 
 
 OF THE FOUNDATION AND NATURE OF THE MASTER'S AUTHORITY. 
 
 The master of a ship holds a peculiar and responsible position. 
 As the owner is bound, in order that his ship may be sea-worthy, 
 to put in command of her a master who is fully competent in 
 respect of skill, care, and honesty, so the master is bound to all 
 whose interests are under his charge, as owners of the ship, or 
 hirers of it, or as owners of the goods, or even as insurers of the 
 ship, goods, or freight, to use proper care and skill, and entire 
 integrity in the protection and preservation of their interests. 
 He must see to the lading of the goods on board ; and take care 
 that the dunnage, the stowage, and arrangement of the several 
 articles are all that they should be. He must ascertain that the 
 condition of the ship, as to her hull, rigging, and all appurte- 
 nances, and all provisions and supplies, is satisfactory. He must 
 take on board and carefully preserve all such papers as the ship 
 should carry and as fall within his duty. During the whole 
 voyage he must conduct himself, not only under ordinary circum- 
 stances, but in all exigencies and emergencies, with due discre- 
 tion, courage, and energy, and complete fidelity to his duties. 
 
 If the ship be wrecked, or in peril, or arrested, or captured, it 
 is his duty to stay by her as long as any rational possibility 
 exists that any good can be done by him, nor should he desert 
 her until all hope has gone ; to use the common phrase among 
 seamen, " the captain should be the last man to quit the ship." 
 
 It is impossible to define all these duties, or state them in
 
 en. xl] foundation and nature of master's authority. 379 
 
 detail. Some of them, and some of the most important among 
 them, arise only on extraordinary occasions ; and must be 
 measured and defined by the circumstances of each case, and 
 the exigencies which it presents. 
 
 In general, the established usage and custom of seamen, and 
 the very nature of their duties, are the best, if not the only guide, 
 in determining what they require. So too, this usage gives 
 them certain privileges, which are always subject to bargain be- 
 tween the owner and master, but are generally very similar in 
 similar ships. As the privilege of carrying goods for himself, or 
 for others, in certain parts of the ship, he receiving the freight, or a 
 right to a certain amount of tonnage.^ So too he has his primage, 
 which is a small percentage on the freight, and is a perquisite 
 over and above his wages ; ^ in this country it is, w^e believe, in 
 foreign voyages, usually five per cent. After the voyage has 
 commenced it seems that the owners have a right to change it 
 reasonably and in good faith, and are then not liable to the 
 master for all the wages or privileges previously stipulated for.^ 
 In a case where the master was to receive a certain sum per 
 
 1 King V. Lenox, 19 Johns. 235, 
 
 2 Scott V. Miller, 5 Scott, 13, 15; 2 Molloy, eh. ix. s. v. ; Charleton v. Cotcsworth, 
 Ryan & Moody, 175. And where goods, by the bill of lading, were to be delivered to the 
 consignee, "he paying freight for the same as per charter-party, with primage and aver- 
 age accustomed," it was held that the master was entitled to receive primage from the 
 consignee ; although the contract between the ship-owner and the agents of the consignee 
 (there being no charter-party) was for £5 per ton freight, and did not notice primage ; 
 and although the master contracted with the ship-owner to receive a sum certain, " in 
 lieu of all cabin and otlier allowances, to commence from the day of victualling the 
 ship, and for which he is to mess the officers." Best v. Saunders, Moody &. M. 208. 
 In Vosc V. Morton, Sup. Jud. Ct., Mass., March T. 185C, 19 Law Reporter, 43, the 
 bill of lading contained the usual clause, "with primage and average accustomed." 
 Held, that accustomed qualified primage as well as avei-age, and that evidence was admis- 
 sible to show an universal and well-understood custom of the trade to pay no primage. 
 
 ^ Tawson v. Donnell, 1 Gill & J. 1. It was held, in this case, that if by the exercise 
 of tliis privilege a special injury is done to either party, the ship-owner must bear the 
 loss and make a reasonable indemnity; also, that if, by the change, the captain is neces- 
 sarily discharged from the performance of all his duties, for which a remuneration has 
 been stipulated, his claim to such remuneration is thereby extinguished, and that if part 
 of the duties have been executed, then such a proportion of the stipulated compensation 
 should be allowed as appeared just on comparing the services rendered with those which 
 remained unperformed, and for the new part of the voyage the usual compensation 
 should be paid, so that the parties should be placed in as nearly the same situation as 
 possible, had a previous contract for the voyage as changed, been entered into between 
 them. Sec also, ante, p. 8G, notes 4 and 5.
 
 380 ON THE LAW OF SHIPPING. [bOOK I. 
 
 month as wages and a commission of five per cent, and also a 
 jDroportion of the profits, it was held that he could not traffic on 
 his own account, for his own benefit.^ 
 
 The powers of the master are not quite so indefinite, perhaps, 
 as his duties. They rest upon certain ascertained principles, and 
 are, for the most part, measured by exact rules. He is the agent 
 of the owner ; appointed by him, and by that appointment au- 
 thorized to act as his agent in all matters which are fairly em- 
 braced within the scope of his appointment^ To know what 
 this authority is, in general, or under any particular circum- 
 stances, we may appeal to the law of agency, and the principles 
 of that law which are applicable to the particular case. Thus, 
 the universal principle, that he who appoints another to do any 
 thing for him, authorizes the person thus appointed to do what- 
 ever fairly and properly belongs to the doing of that thing, suf- 
 fices for most of these questions. It is not, however, a rule 
 equally universal, that authority to do a certain thing, always 
 implies authority to do whatever can, in any emergency, become 
 necessary for the doing of it For, if circumstances should 
 make an effort, expenditure, or sacrifice, necessary to the doing 
 of the thing, which would certainly deter any reasonable man 
 from doing it, the agent ought then to consider his authority as 
 at an end. 
 
 Where the owner is himself present, or within easy access, 
 that agency of the master which is founded on necessity disap- 
 pears, for the necessity has ceased to exist.^ We have seen that 
 he may sell the ship when the sale is justified by a sufficient 
 
 1 Mathewson v. Clarke, 6 How. 122. 
 
 2 But the master of a ship has uo more authority to bind his owners than any other 
 agent has to bind his principal. Pope v. Nickerson, 3 Story, 465, 475. He is not the 
 general agent of the owners. Mitcheson v. Oliver, 5 Ellis & B. 419, 32 Eng. L. & Eq. 
 219, 232, per ParJce, B. 
 
 3 Lister v. Baxter, 2 Stra. 695 ; Arthur v. Barton, 6 M. & W. 138, 143, per Lord 
 Ahinger, C. B. ; Ship Lavinia v. Barclay, 1 Wash. C. C. 49 ; Patton v. Sch. Randolph, 
 Gilpin, 457 ; Johns v. Simons, 2 Q. B. 425 ; Bcldon v. Campbell, 6 Exch. 886, 6 
 Eng. L. & Eq. 473. See also, post, ^ 4, C. " But this doctrine cannot be safely ex- 
 tended to the case of an owner pro hac vice in command of the vessel. Practically 
 this special ownership leaves the enterprise subject to the same necessities as if the 
 master were master merely, and not charterer, and the maritime law gives him the 
 same power to borrow to meet that necessity, as if he were not charterer." Per Curtis, 
 J., in Thomas v.Osborn, 19 How. 22, 29, deciding that the charterer has the power to 
 bind the vessel for repairs though he may not have the power to bind the owners.
 
 en. XI.] FOUNDATION AND NATURE OF MASTER'S AUTHORITY. 381 
 
 necessity ;i but no necessity can be sufficient if the owner were 
 so near that the master was not obliged to act without his 
 instructions.^ And if a master is specially empowered to sell a 
 vessel in a particular manner, his principal is not bound if he 
 exceeds his authority, the vendee knowing that the master was 
 specially authorized.^ 
 
 In the same way he may do many things abroad, which he 
 cannot do at home ; as to raise money on bottomry,* charter the 
 ship,^ or repair or supply her extremity.*^ If the master is also 
 
 ^ See ante, p. 59-65. But the raastcr lias no authority to sell part of a steam- 
 boat to a person for the purpose of keeping a bar. Kelly v. Dickinson, 15 Mo. 193. 
 
 2 See ante, p. 64, notes 2 and 3. 
 
 2 Johnson v. Wingate, 29 Maine, 404. 
 
 * See post, § 4. 
 
 5 See ante, p. 231, note 3. 
 
 ^ As a general rule, in a foreign port, the master has authority to bind the owners for 
 repairs, or supplies furnished the vessel, or to pledge the credit of the owners by raising 
 money for necessary purposes. Hoskins v. Slayton, Cas. Temp. Hardw. 376 ; Kich v. 
 Coe, 2 Cowp. 636 ; Speering (Speerman, in 2d cd.) v. Degrave, 2 Vern. 643 ; Stewart 
 V. Hall, 2 Dow. 29 ; Ex parte Bland, 2 Rose, 91 ; Webster v. Seekamp, 4 B. & Aid. 
 352; Arthur v. Barton, 6 M. & W. 138, 143 ; Edwards v. Havell, 14 C. B. 107, 24 
 Eng. L. & Eq. 303 ; Milward v. Hallett, 2 Caines, 77, 81 ; Marquand v. "Webb, 
 16 Johns. 89; The Aurora, 1 Wheat. 96; Abbott v. Bait. & Rapp. S. P. Co., 
 1 Md. Ch. 542 ; The Hilarity, Blatchf. & H. Adm. 90 ; The Gustavia, id. 
 189; Thomas v. Osbom, 19 How. 22, 28; Henshaw v. Rollins, 5 La. 335. See 
 also, James v. Bixby, 11 Mass. 34. In Beldon v. Campbell, 6 Exch. 886, 6 
 Eng. L. & Eq. 473, it was held, that the master had not authority to borrow money 
 to pay for work already done, and, therefore, where the ship, bound for New- 
 castle, was towed into that port, no agreement having been previously made that tho 
 towage was to be paid for immediately, and the master, si.K days afterwards, borrowed 
 money to pay for the towage, it was held, that the owner was not liable. The tendency 
 of the recent cases in England is to hold the person, furnishing necessaries to a vessel 
 at the request of the master, to a strict proof that the latter was the agent of the owner 
 sought to be charged. Thus, in Mitcheson v. Oliver, 5 Ellis & B. 419, 32 Eng. L. & 
 Eq. 219, the action was for goods sold and delivered, for work and materials provided, 
 etc. Tiie defendant was, during the repairs, and afterwards, the registered owner of tho 
 ship. One Christie appeared on the register as master from August 7, 1850, until 
 September 14, 1852. On the latter day the name of Thompson was substituted. The 
 plaintiff proved that the repairs and articles furnished were necessary, that they were 
 furnished from October 10, 1852, to November 17th, of that year. During that time 
 Thompson was on board acting as master, and gave the orders for the repairs. The 
 defendant showed that on the 14th of July of that year he entered into an agreement 
 to sell the ship to one Gompertz on certain conditions, he to have the possession of the 
 ship to fit her for a voyage to Australia. Thompson was appointed by Gompertz, and 
 the repairs and supplies were furnished while in his possession. Subsequently, the con- 
 ditions being broken, the defendant took possession of the vessel again. Held, tliat he 
 was not liable. This case virtually overrules Frost v. Oliver, 2 Ellis & B. 301, 20
 
 382 ON THE LAW OF SHIPPING. [BOOK I. 
 
 a part owner, he has authority to settle a claim for demurrage, 
 and he Avould probably have this right if he were not a part 
 owner.^ Nor is it the place, which determines his power to do 
 these things ; for if he be abroad, and the owner be there also ; 
 or if an agent be there especially authorized and instructed by 
 the owner upon these points, there is no necessity for the master's 
 authority ; and consequently it does not exist.^ If, however, in 
 a home port, and under the owner's eye, he makes contracts 
 respecting the ship to which the owner assents in fact, or which 
 he justifies the other contracting party in believing that he 
 assents to,^ or if he voluntarily accepts and retains the benefit 
 
 Eng. L. & Eq. 114. And in Mackenzie v. Pooley, 11 Exch. 638, 34 Eng. L. & Eq. 
 486, it was held, that, where the vessel was sold after she sailed, the vendee was not 
 liable for money borrowed by the master to buy necessaries, in a foreign port, although 
 at the time the defendant was the registered owner. In England it seems now to be 
 settled that the master has no power, in a foreign port, to create a lien on the vessel as 
 security for the payment for repairs and supplies, except by a bottomry bond. Stain- 
 bank V. Fenning, 11 C. B. 51, 6 Eng. L. & Eq. 412; Stainbank v. Shepard, 13 C. B. 
 418, 20 Eng. L. & Eq. 547. 
 
 1 Alexander v. Dowie, 1 H. & N. 152, 37 Eng. L. & Eq. 549. 
 
 2 See ante, p. 380, note 3. 
 
 5 In The Schooner Tribune, 3 Sumner, 144, the master of a vessel made a charter- 
 party at a home port. It was held, under the circumstances, to be binding on the 
 owners. Speaking of the power of the master, Mr. Justice Story said : " As to his 
 right to make such a contract in the home port of the owners, I agree that it cannot 
 be ordinarily presumed fi'om his character as master. It is not an incident to his gen- 
 eral authority ; nor can it be presumed, under such circumstances, as an ordinary 
 superadded agency. But there are peculiar circumstances, however, in the present 
 case, which do create some presumption of such a superadded agency. In the first 
 place, such had been his authority in the former voyages of the vessel ; and such seems 
 also to have been his authority under her subsequent employment. And I think it 
 might fairly be presumed, that in the home port he would scarcely have had the rash- 
 ness to make so important and definite a contract without some authority." And in 
 The Flash, Abbott, Adm. 67, it was held, that the master may make an ordinary con- 
 tract of affreightment at the home port. The learned judge, in the case of The Tri- 
 bune, supra, was also of opinion that one of the owners, who was the ship's husband, 
 must have had full knowledge of what the master had done. But it is not sufficient 
 that the master acted with the privity of the owner unless he was his agent. Mitche- 
 son V. Oliver, 5 Ellis & B. 419, 32 Eng. L. & Eq. 219. And in Jordan v. Young, 37 
 Maine, 276, it was held, that the master of a vessel has no authority in a home port 
 to order repairs, and that a vessel which is moored at the port adjoining that in which 
 the owner resides is at her home port. But see Provost v. Patchin, 5 Scld. 235, where 
 it is held that the master, as the general agent of the owners, has authority to bind 
 them in a home port for necessary repairs, unless it can be shown that the owners them- 
 selves, or a ship's husband, managed the vessel, and that the party contracting with the 
 master was aware of this.
 
 CH. XI.] FOUNDATION AND NATURE OF MASTER'S AUTHORITY. 383 
 
 of the contract when it is executed, when he is perfectly at 
 liberty to return or renounce such benefit, in all such cases the 
 owner is responsible, on general principles, as has been pre- 
 viously stated. 
 
 One general limitation of the power of the master to bind the 
 owner by the contracts he makes for him, is this : they must re- 
 late to the condition, or the use and employment of the ship, 
 and be within the usual duty and business of a master; and 
 they must not be so unreasonable in themselves as to raise the 
 suspicion that the contracting party acted fraudulently or reck- 
 lessly in making them. ^By the general rule of the maritime 
 law the master has the power to hire seamen, and the contract 
 which he makes with them for wages is binding on the 
 owners.^ 
 
 If the master, while abroad, enters into a contract which binds 
 the owner, that contract must be construed at home by the laws 
 of the place where it was made, unless it is plain that it is to be 
 executed at home, and under the home law.^ But the master 
 of a ship has the powers, as agent of the owner, which the 
 laws of his own country give to him and no other, unless the 
 owner expressly, or by some sufficient action, gives him more 
 power or holds him out as possessing it.^ 
 
 1 Some doubt has been expressed whether this rule applies to fishing voyages, but we 
 think in the absence of a usage to the contrary the power of the master wouhl be con- 
 sidered the same in voyages of this descrijjtion as in freighting voyages. In Sherwood 
 V. Hall, 3 Sumner, 127, and in Walcott v. Wilcutt, U. S. D. C, Mass., Boston Courier, 
 May 29, 1 858, it was held, that the owners of a whaling ship were liable for damages 
 for the abduction of a minor by the captain, although they had no personal knowledge 
 of the fact, the act being held to be within the scope of the authority of the master as 
 agent of the owners. In Baker v. Corey, 19 Pick. 496, it was held, that the owners of 
 a fishing vessel might hire men to navigate the vessel and to fish for the account of the 
 owners, on wages instead of shares, and that although the master might not have this 
 power virtute officii, yet if he were also a part owner, and the other owners did not 
 interfere in the management of the vessel, he would be deemed their agent, and they 
 would be bound by his acts. 
 
 ~ See 2 Parsons on Contracts, 94-100. 
 
 8 Poi)e V. Nickerson, 3 Story, C. C. 4G5. The action in this case was assumpsit on 
 four bills of lading. The question arose by what law the bills of lading were to be 
 governed, whether by the law of Spain, where the contracts of shipment were made, 
 or by the law of Pennsylvania, where the goods were to be delivered, or by the law of 
 Massachusetts, where the owners resided, and to which the vessel belonged. The court 
 held, that the laws of Massachusetts were to govern. See also. The Packet, 3 Mason,
 
 384 ON THE LAW OF SHIPPING. [bOOK I. 
 
 The master has no power, as agent of the owner, to settle, or 
 deal with any claims or questions that do not accrue or arise 
 while he is master.^ If the contracts which he makes are in his 
 own name, then, it is said, that the owner cannot be made liable 
 for them, on the contracts.^ But most maritime contracts on 
 which the owner should be liable, give to the contracting party 
 a lien on the ship, and through this, the owner may be indirectly 
 reached. And it may well be doubted whether, in this country, 
 the owner himself might not, generally, be made directly 
 responsible.^ The master is, in almost all cases, where he 
 makes a contract for his ship, him#lf responsible;* as on all 
 charter-parties or bills of lading signed by him.^ And if goods 
 on board are injured by the unskilfulness or wrong doing of the 
 master, or of the crew without the fault of the master, or if they 
 are stolen, or lost so as to make the owner responsible, the mas- 
 ter, generally, would be responsible also;*^ for the maritime law 
 considers both the owner and master as carriers of the cargo." 
 
 Although the master may, in a foreign port, make a charter- 
 party which shall bind the owners, it is said that he cannot make 
 either that or any other contract under seal, so as to bind them, 
 without express authority.^ 
 
 255; Tfce Nelson, 1 Hagg. Adra. 169. See contra, Malpica v. McKown, 1 La. 248; 
 Arajo V. Currel, 1 La. 528. 
 
 1 Kelley c. Merrill, 14 Maine, 228. 
 
 2 Garnhan v. Bennet, 2 Stra. 816; Thorn v. Hicks, 7 Cow. 697 ; Husseyr. Allen, 6 
 Mass. 103 ; James v. Bixby, 11 Mass. 34, 37 ; Nickerson v. Sch. Monsoon, 5 Law Re- 
 porter, 416 ; Wainwright v. Crawford, 3 Yeates, 131. 
 
 s See Phillips i-. Tapper, 2 Barr, 323. 
 
 * Rich V. Coe, 2 Cowp. 636 ; Marquand v. Webb, 16 Johns. 89 ; James v. Bixbj, 11 
 Mass. 34 ; Stocker i'. Corlett, 1 Const. R. 81. In Sydnor v. Hurd, 8 Texas, 98, the mas- 
 ter was held liable on the following instrument : " Due Sydnor & Bone, or order, by 
 Sch. Cornelius and owners for supplies and materials received, the sum of two hundred 
 and six dollars. William Hurd." 
 
 & Watkinson v. Laughton, 8 Johns. 213 ; The Sch. Leonidas, Olcott, Adm. 12, 15. But 
 in an action of assumpsit for the breach of a contract of affreightment the owner and 
 master should not be joined. Patton v. Magrath, Rice, 162. 
 
 6 Morse r. Slue, 1 Vent. 190, 238 ; Barclay r. Cuculla y Gana, 3 Doug. 389 ; Wat- 
 kinson V. Laughton, 8 Johns. 213. 
 
 7 Elliott V. Rossell, 10 Johns. 1 ; Oakey v. Russell, 18 Mart. La. 58. 
 
 8 See ante, p. 231, n. 3.
 
 CH. XI.] master's power from necessity. 385 
 
 SECTION 11. 
 
 OF THE master's POWER FROM NECESSITY. 
 
 As the master's power often arises from necessity, and is 
 measured by it, it is important to ascertain what this necessity 
 must be in each particular instance. For this necessity is very 
 different, in different cases. Courts and text-writers use the 
 same words in all these cases, saying in all alike that the mas- 
 ter has the power, from necessity ; but they must mean vary dif- 
 ferent things. Thus, we have already seen what the necessity is 
 which alone gives the master power to sell the ship without con- 
 sulting the owner.i And it is also true that he may borrow 
 money and hypothecate the ship for it by a bottomry bond, if 
 this be necessary .2 And he may also bind the owner to pay for 
 the repairs which he makes, if those repairs were necessary.^ But 
 
 1 See ante, p. 59-65. 
 
 2 See post, \ 4, p. 406. 
 
 3 Stewart v. Hall, 2 Dow, 29 ; The Aurora, 1 Wheat. %, per Stonj, J. ; The Ship 
 Fortitude, 3 Sumner, 228, 236 ; Burquin r. Flinn, 1 McCorci,316 ; Milward r. Hallett, 
 2 Caines, 77 ; Rocher v. Busher, 1 Stark. 27. See also, James v. Bixby, 11 Mass. 34. 
 The question as to the degree of necessity necessary to confer the power on the master 
 of binding the vessel and its owners for repairs and supiilies funiished in a foreign 
 port, was discussed at length in a recent case before the Supreme Court of the United 
 States. Thomas i'. Osbom, 19 How\ 22, 31. Mr. Justice Curtis, in delivering the 
 opinion of the court, said : " To constitute a case of apparent necessity, not only must 
 the repairs and supplies be needful, but it must be apparently necessary for the master 
 to have a credit, to procure them. If the master has funds of his own, which he ought 
 to apjily to purchase the supplies which he is bound by the contract of hiring to fur- 
 nish himself, and if he has funds of the owners, which he ought to apply to pay for the 
 repairs, then no case of actual necessity to have a credit exists. And if the lender 
 knows these facts, or has the means, by the use of due diligence, to ascertain tliem, 
 then no case of apparent necessity exists to have a credit ; and the act of the master 
 in procuring a credit does not bind the interest of the general owners in the vessel." 
 It was therefore held in this case that, the master having received freight money, and 
 having invested it with the assistance of the libcllants in a scries of adventures, the 
 vessel was not liable for money advanced by the libcllants to enable the master to 
 repair and supply the vessel, and jnirchase a cargo to be transported and sold in the 
 course of such private adventures, as the freight-money was sufficient to pay for the 
 repairs and supplies, and might have been so used, if it had not been wrongfully cm- 
 ployed by the master with the assistance of the libellants. Some of the remarks of 
 
 VOL. I. 33
 
 oS6 ox TUB LAW OF SHIPPING. [bOOK I. 
 
 he has no power to draw upon the owners by a bill of exchange 
 for supplies furnished in a foreign port, and render them liable as 
 acceptors.^ 
 
 To justify a sale, the necessity must be, as we have seen, of 
 the most positive and stringent character. To make the owner 
 responsible for repairs, however, it could not be necessary to 
 show that, the ship would have sunk or gone to ruin without 
 them ; for if they are, on the whole, reasonable and proper, 
 that is enough.^ Again, the necessity which authorizes a bor- 
 rowing on bottomry, is not the same as either of these; it 
 need not to be so stringent and extreme as the first; but it 
 must be far greater than the second ; it lies between them." 
 And we might go on and speak of other necessities and other 
 powers springing from them, and endeavor to classify them. 
 But it would accomplish no practical good ; for after all, the 
 only, and the reasonable rule must be, that the owner authorizes 
 
 the learned judge above cited, apply only to the case which was then before the court, 
 where the master was also the charterer, though the decision would unquestionably 
 have been the same had he been merely the master. 
 
 1 Bowen v. Stoddard, 10 Met. 375 ; May v. Kelly, 27 Ala. 497. 
 
 " Mr. Justice Story in the case of The Ship Fortitude, 3 Sumner, 228, 237, said : 
 " In relation to what are necessary repairs in the sense of the law, for which the mas- 
 ter may lawfully bind the owner of the ship, I have not been able, after a pretty 
 thorough search into the authorities and text writers, ancient and modern, to find it 
 anywhere laid down in direct or peremptory terms, that they are such repairs, and 
 such repairs only, as are absolutely indispensable for the safety of the ship, or the 
 voyage, or that there must be an extreme necessity, an invincible distress, or a positive 
 urgent incapacity, to justify the master in making the repairs. The general formulaiy 
 of expression found to be laid down is, simply, that the repairs are to be necessary, 
 without in any manner pointing out what repairs are, in the sense of the law, deemed 
 necessaiy, or what constitutes the true definition of necessity. But a thorough exam- 
 ination of the common text writers, ancient as well as modern, will, as I think, satis- 
 factorily sliow, that they have all understood the language in a very mitigated sense ; 
 and that necessmy repairs mean such as are reasonably fit and proper for the ship under 
 the circumstances, and not merely such as are absolutely indispensable for the safety of 
 the ship or the accomplishment of the voy.ige." See also, "Webster v. Scekamp, 4 B. 
 & Aid. 352 ; Rocher v. Busher, 1 Stark. 27 ; United Ins. Co. v. Scott, 1 Johns. 106 ; 
 Milward v. Hallett, 2 Caines, 77 ; Pratt o. Reed, 19 How. 359. 
 
 3 See post, § 4, C. In Pratt v. Reed, 19 How. 359, 361, it was said that the only 
 difierence between a case of necessity which would authorize an implied hypothecation 
 of the vessel for supplies or repairs, and that necessity which would justify the givmg 
 of a bond, was, that in the latter case, the additional fact must appear, that the master 
 could not procure the money, without giving the extraordinary interest incident to that 
 species of .secmity.
 
 en. XL] master's poaver from necessity. 387 
 
 the master to do every thing within the general scope of a mas- 
 ter's employment, which a rational man might believe that a 
 rational owner would certainly do for himself if he were present 
 at that time and place.^ 
 
 So a master may, if necessary, appoint another in his place ; 
 although generally, an agent cannot delegate his power or duty 
 without especial authority ; and the master so appointed by a 
 master, may bind the owner in like manner as the original master 
 might have dbnc.^ So a master duly appointed by a charterer, 
 binds not only his immediate principal, the charterer, but also 
 the ship. But if appointed by the charterer, he would not, w^e 
 think, bind the owner personally, without something from the 
 owner, indicating, by word or act, that the master so appointed, 
 was also clothed with authority by the owner.^ A master ap- 
 pointed abroad by a consul, or any official person, agreeably to 
 the usage of merchants in the given case, has the same power.^ 
 So the master of a steamboat,^ or of a privateer,^ has similar 
 powers; always under the definition or description we have 
 given above, of the necessity which creates or confers those 
 powers. 
 
 Even if the contract be without the usual scope of the mas- 
 
 1 Webster v. Seekamp, 4 B. & Aid. 352. The question in tliis case was wlictlier the 
 owners of a vessel were liable for copper furnished by the order of the captain. The 
 vessel was bound to the Mediterranean. It was proved that altliough it was extremely 
 useful to copper vessels bound to that sea, yet it was not absolutely necessary, for 
 many vessels went there without being cojjpcred. The jury havingv found a verdict for 
 the plaintiff, the court refused to set it aside. Abbott, C. J., said : " I am of opinion, 
 that whatever is fit and proper for the service on which a vessel is engaged, whatever 
 the owner of that vessel, as a prudent man, would have ordered, if present at the time, 
 comes within the meaning of the term 'necessary,' as ajiplied to those repairs done or 
 things provided for the ship by order of the master, for which tiie owners arc liable." 
 
 2 1 Bell, Comm. 413. 
 
 8 See ante, p. 235. In Breed v. Ship Venus, U. S. D. C, Mass., 1805, it was 
 held that charterers might lend money for the necessities of the ship to the captain of 
 the ship appointed by themselves, and that a bond given to them by this master cculd 
 be enforced against the ship. 
 
 * He may also give a bottomry bond. The Zodiac, 1 Hagg. Adm. 320 ; The Nuova 
 Loanese, 22 Eng. L. & Eq. G23. In The Cynthia, 20 Eng. L. & Eq. 623, the consul 
 appointed the mostcr, and gave a bond himself. It was pronounced valid. 
 
 6 The Steamboat New World v. King, 16 How. 469. 
 
 6 We shall sec, post, p. 393, n. 2, that the owners of a privateer are !ial>Ie for the 
 torts committed by the master, and it would follow that tliey arc lialde for his con- 
 tracts
 
 3S8 ON THE LAW OF SHIPPING. [BOOK I. 
 
 ter's employment, as the purchase of a cargo,^ it may be adopted 
 and confirmed by the owner ; and such ratification may be 
 express, or proved by acts which indicate such confirmation, or 
 inferred from the voluntary acceptance and retaining of the 
 cargo,^ or from the fact that that owner had frequently and 
 usually employed that master to act for him in that way.^ But 
 a master cannot, by any official or implied authority, annul or 
 materially vary a contract expressly made by the owner himself; 
 circumstances may change entirely, and it is perhaps possible 
 that this change be such as to authorize the master to rescind or 
 vary the owner's express contract ; still, in point of fact, it may 
 be said that nothing can raise a presumption of authority to do 
 this ; ^ nor can he bind the owner by a contract which is clearly 
 neither necessary nor beneficial; as to carry goods in his ship 
 free from freight and without any compensation whatever.^ 
 
 It may, perhaps, be proper to remark, tliat the liability of the 
 master and of the owner are both controlled by the rule, that 
 any party who chooses to give credit to one only when he might 
 have held others, cannot afterwards resort to those others. Thus, 
 if one contracts for supplies to the ship, with the owner exclu- 
 sively, he can never look to the master ; ^ and if with the master 
 exclusively, he can never look to the owner." And this exclusive 
 credit may be proved either by words and express agreement, or 
 
 1 Newliall V. Dunlap, 14 Maine, 180; Hewctt v. Buck, 17 Maine, 147; Lyman v. 
 Redman, 23 Maine, 289. 
 
 2 Hewett V. Buck, and Lyman v. Redman, supra. In the latter case, tlic owners of 
 the vessel sent the cargo which the master had bought to another port. Wiiilc on the 
 way part was thrown overboard to save the ship, and on arrival the residue was sold 
 and the proceeds applied to the repair of the vessel. Held that this was a ratification 
 of the purchase by the master. See also, Peters v. Ballistier, 3 Pick. 495 ; Ilathorn 
 V. Curtis, 8 Grcenl. 356. 
 
 3 Davis I'. Marshall, 4 Harring. Del. 64. 
 * Burgon v. Sharpe, 2 Camp. 529. 
 
 5 See Dewell v. Moxon, 1 Taunt. 391, and cases ante, p. 241, n. 2. But if a cus- 
 tom is proved to carry a certain class of passengers free, the master can bind the ves- 
 sel by giving such a free passage. The Steamboat New World v. King, 16 How. 469. 
 And he can bind himself to carry the goods of a seaman free, and it would seem that 
 he could also, in such a case, bind the owners. Harrison v. Sch. Eclipse, Crabbe, 
 223. 
 
 6 Farmer r. Davies, 1 T. R. 108; Parrel v. M'Clea, 1 Dall. 392. 
 ' See cases ante, p. 384, n. 2.
 
 CH. XI.] master's power from necessity. 389 
 
 by adequate circumstances. In the latter case, however, the 
 ch-cumstances must be such as would show conclusively that 
 the creditor intended to charge the one, and not to charge the 
 other ; and it is doubtful whether a mere entry on his books charg- 
 ing either party would suffice to do this.^ But it is customary.for 
 persons who deal in supplying vessels, to make the charge to the 
 vessel itself, adding sometimes such words as " and all concerned 
 in her." ^ This would be the same as to the ship " and owners." 
 
 An owner is responsible as such, who is actually an owner, 
 although not registered as such, and his name does not appear 
 on the papers of the ship.^ 
 
 As the master may raise money for the ship, or expend his 
 own, or procure supplies, or make other necessary and beneficial 
 contracts, and is personally bound on those contracts, out of this 
 grows his lien on the ship or the freight, for whatever is due to 
 him. How far this lien extends, and indeed in what cases it 
 exists, the authorities do not, perhaps, enable us to state very 
 positively. In England it has been held that he can have no 
 lien on the ship,^ and therefore none on the freight, because this 
 is a mere incident to the ship. 
 
 Some early cases moderated the severity of this rule somewhat, 
 and gave him this lien for his disbursements ; ^ but they are now 
 overruled.^ In this country, the law seems now to be, that the 
 master has no lien on the ship for his wages,'^ or for his disburse- 
 
 1 See ante, p. 91, n. 3. 
 
 2 Sec ante, p. 91, n. 3. 
 
 3 See ante, p. 40, n. 2. 
 
 * Wilkins v. Carmicliacl, I Doug. 101; Ilusscy v. Christie, 9 East, 426; The 
 Johannes Christoph, 33 Eng. L. & Eq. 600. But see Watkinson v. Bcrnailiston, 2 P. 
 Wins. 367, note, where the Master of the Rolls decreed that sums disbursed by the cap- 
 tain on account of the ship in foreign ports, together with the wages of himself and 
 crew, should be paid out of the proceeds of the ship, as they constituted a lien 
 upon it. 
 
 6 White V. Baring, 4 Esp. 22. So in equity, Ilusscy v. Christie, 13 Ves. 594 ; Ex 
 parte Halkctt, 3 Ves. & B. 135, 2 Bosc, 194, 229, 19 Ves. 474 ; I'icrson v. Robinson, 
 3 Swanst. 139, n. 
 
 6 Smith V. Plummer, 1 B. & Aid. 575; Atkinson v. Cotcsworth, 3 B. & C. 647, 5 
 Dowl. & R. 552 ; Gibson v. Ingo, 6 Hare, 112. 
 
 ' The Ship Grand Turk, 1 Paine, C. C. 73 ; Rcvcns v. Lewis, 2 Paine, C. C. 202 ; 
 Fi.sher r. Willing, 8 S. & R. 118; Gardner v. The New Jersey, 1 Pet. Adm. 223; 
 Phillips V. The Thomas Scattergood, Gilpin, 1 ; Steamboat Orleans v. Piicebus, 11 
 Pet. 175; "Willard v. Dorr, 3 Mason, 91 ; Dudley v. The Steamboat Superior, U. S. 
 
 33*
 
 390 ON THE LAW OF SHIPPING. [BOOK I. 
 
 ments.i g^^^ for both of these he has a lien on the freight 
 according to the best authorities.^ But he has no lien for a 
 general account.^ If the cargo belongs to the owner of the ship, 
 it has been held that the master has a lien on it for his disburse- 
 ments.'^ 
 
 And if he has a lien on the freight, it would follow that he 
 might detain the goods even against a shipper or consignee who 
 had paid the freight to the owner of the ship, if the consignee 
 had been duly notified by the master of his claim and lien, and 
 ordered not to pay the owner.^ 
 
 D. C, Ohio, 3 Am. Law Eegister, 622; Hopkins v. Forsyth, U Penn. State, 34; 
 Eicharclson v. Whiting, 18 Pick. 530 ; Case r. "Woolley, 6 Dana, 17, 22. But if a person 
 is merely called a master, but is not one in fact, he can proceed against the ship in rem 
 for his wages. L'Arina v. Brig Exchange, Bee, Adm. 198. 
 
 1 In Gardner v. The New Jersey, 1 Pet. Adm. 223, 226, it was held that a master who 
 paid claims which were liens on the vessel, was substituted in place of the lien credi- 
 tors, and acquired a lien on the vessel. See also, Bulgin v. Sloop Rainbow, Bee, 
 Adm. 116. Mr Justice Stoi-y in the Ship Packet, 3 Mason, 255, 26.3, suggested that 
 the master might have a lien on the ship where he used his own mon^ to repair her in 
 preference to borrowing on bottomry. But that he did not mean to express an opinion 
 that generally a master has a lien on the ship for disbursements is evident, for in 
 Steamboat Orleans v. Phcebus, 11 Pet. 175, he expressly states that this right does not 
 exist. In a recent case before Mr. Justice Curtis, the whole question was learnedly 
 examined, and it was held that no lien on the ship existed in^uch a case. The Larch, 2 
 Curtis, C. C. 427. See also, Hopkins v. Forsyth, 14 Penn. State, 34. By an early 
 statute in Connecticut, the master in case of the neglect of the part-owner to furnish the 
 outfits, could supply them and look to the vessel, but had no personal remedy against 
 the owner. Brook v. Williams, 2 Root, 27. 
 
 2 That he has a lien on the freight for his disbm-sements, see Lane v. Penniman, 4 
 Mass. 91 ; Lewis v. Hancock, 11 Mass. 72. In which case the court said: "He may 
 be understood, as against the OAvner himself, to have the same right in the freight-money 
 which a factor or consignee has in the goods of the principal or consignor, for whom 
 money has been advanced, or any liabilities have been incurred, in consequence of the 
 employment or consignment. The master of a vessel in a foreign port, and at home 
 after a voyage performed, has many liabilities, from which he may have cause to pro- 
 tect himself, by insisting on his right to collect the freight-money." See also, IngersoU v. 
 Van Bokkelin, 7 Cow. 670, 5 Wend. 315 ; The Ship Packet, 3 Mason, 255 ; Drinkwater 
 V. Brig Spartan, Ware, 149 ; Richardson v. Whiting, 18 Pick. 530. If by the shipping 
 articles the master is directly responsible to the seamen for their wages, it would seem 
 that he might retain the freight to indemnify himself. See Goodridge r. Lord, 10 
 Mass. 483. In regard to his lien on the freight for his wages, see Drinkwater v. Brig 
 Spartan, Ware, 149 ; Richardson v. Whiting, 18 Pick. 530, 532. In IngersoU v. Van 
 Bokkelin, 7 Cow. 670, the Supreme Court held that he had a lien on the freight for 
 his wages, but this decision was reversed by the Court of Errors, 5 Wend. 315. 
 
 3 Shaw V. Gookin, 7 N. H. 16. See also, Hodgson v. Butts, 3 Cranch, 140. 
 * Newhall v. Dunlap, 14 Maine, 180. 
 
 5 See ante, p. 256, n. 4.
 
 en. XI.] now far liable for torts of the master. 391 
 
 SECTION ni. 
 
 now FAR THE OWNER IS LIABLE FOR TnE TORTS OF TOE MASTER. 
 
 The owner is liable not only upon the contracts of the master 
 of the kind above designated, but also for his wrong doings, and 
 the injuries resulting from them, to a certain extent.^ We con- 
 sider that the principles of the law of agency, or of the relation 
 of master and servant, suffice to measure this liability and to 
 determine where it exists. Thus, the.vessel and owners are liable 
 for the delay of the master in presenting a proper manifest so 
 that the owner of goods can pass his property through the 
 custom-house, but they are not responsible for a tortious en- 
 deavor on the part of the master to prevent the owner from 
 obtaining his goods.^ If a vessel is chartered, and the master is 
 the agent of the owners, it is his duty to collect the freight- 
 money for the benefit of the charterers ; and if he neglect to do 
 so his owners are liable, unless the charterers directed some other 
 person to collect it.-^ And if a master, by want of skill or care, 
 brings his ship while navigating her into collision with another 
 and inflicts injuries thereby, the owner is certainly liable.'^ But 
 it has been held that the owners are not liable for a wilful col- 
 
 1 By the general rule of the maritime law, the owners of a vessel are liable for all 
 injuries caused by the misconduct, negligence, or unskilfulncss of the master, provided 
 the act be done while acting within the scope of his authority as master. Beawes, 
 Lex Mercatoria (4th London ed.), 54 ; Stinson v. Wyman, Daveis, 172; The Waldo, 
 Daveis, 161 ; Dusar v. Murgatroyd, 1 Wash. C. C. 13, 17. 
 
 The owner of a vessel is liable for the tort of tlie master in shipping a minor with- 
 out the consent of his father, if tlie master knew this fact at tlie time ; the knowledge 
 of the servant being considered e([uivalcnt to knowledge by tlie principal. Sec ante, 
 p. 383, n. 1. 
 
 - Tlie Zcnobia, Abbott, Adm. 80, 93. So, in The Aberfoyle, Abbott, Adm. 242, I 
 Blatchf. C. C. 3G0, it was held tliat a vessel was liable in rem for the wrongful act of the 
 master in putting a passenger on sliort allowance, unless it was proved that the master's 
 act was malicious and wrongful. 
 
 3 Welch I'. McClintock, S. J. C, Mass., Nov. T. 1857. 
 
 4 The Thames, 5 Hoi). Adm. 345; Stone v. Ketland, 1 Wash. C. C. 142; Martino 
 V. Boggs, 1 La. Ann. 74. Sec also chapter on collision, ante, p. 187-211.
 
 392 ON THE LAW OF SHIPPIXG. [bOOK I. 
 
 lision.i So if the master embezzles goods put on board, the 
 owner is liable.^ But he is not liable if the master embezzles or 
 injures goods which he took on board to fill his own privilege, 
 and received all the freight, commissions, and profits on them.^ 
 Nor is he responsible for goods clandestinely taken on board by 
 the master, when the owner is himself on board, manacrins: the 
 lading of the vessel, or appointing an agent expressly therefor, 
 and employing the master only in navigating the ship, and the 
 shipper either did know this, or has sufficient notice to put him 
 on his guard.* Nor is he responsible for money which the mas- 
 
 1 The Druid, 1 W. Eob. 391 ; Kichmond Turnpike Co. v. VanderbUt, 1 Hill, 480, 
 2 Comst. 479. A contrary decision was however given in Ealston v. The State 
 Rights, Crabbe, 22, 44, on the authority of the distinction pointed out by Mr. Justice 
 Washington in the case of Dias r. Privateer Revenge, cited in a subsequent note. Mr. 
 Justice Hophinson said : " In the case now before this court, I do not understand it to 
 be denied, that the owners of a vessel are answerable for the acts of their captain done 
 within the course and scope of his emplojinent and business. Is this not enough for 
 this case 1 Assuredly it was within the course and scope of the employment and au- 
 thority of Captain Allen to direct The State Rights to be steered at his pleasure ; he 
 had full power to do this, derived from his owners, and all on board were bound to 
 obey his orders, without interposing their judgment as to the consequences to him or 
 his owners. If by the execution of such an order a wrong is done to another party, 
 on what principle of the common or maritime law can the owners of the offending 
 vessel, the principals of such an agent, whom they have armed with the power to do the 
 wrong, throw the responsibility from themselves 1 It is widely different from the case 
 of the commission of a crime by the captain, which cannot be imputed to his owners, 
 or be intended to come within the employment or authority committed to him." In 
 Duggins V. Watson, 15 Ark. 118, a party who owned goods on board one vessel, 
 brought an action against the owners of a colliding vessel, and the court ruled that he 
 was entitled to recover, although the collision was wilfully caused by the master of the 
 colliding boat. This case was decided on the authority of Philadelphia & Reading 
 Railroad Co. v. Derby, 14 How. 468, cited post, p. 394, n. 3 ; but it does not fall within 
 the exception upon which that case rested, and was wrongly decided unless the prin- 
 ciples contended for by Hopkinson, J., in the above case, be coiTCCt. 
 
 2 Boucher v. Lawson, Cases temp. Hardw. 78, 183. 
 
 3 King V. Lenox, 19 Johns. 235; Boucher v. Lawson, Cases temp. Hardw. London 
 ed. 85, 194 ; Dublin ed. 78, 183. But in Phile v. The Anna, 1 Dall. 197, an owner of a 
 vessel was held liable for the tort of the master in smuggling goods, which were part 
 of the master's privilege, and did not belong to the general cargo of the ship. 
 
 * Walter v. Brewer, 11 Mass. 99; Re)Tiolds v. Toppan, 15 Mass. 370; Ward r. 
 Green, 6 Cow. 173. In Walter v. Brewer, the owner was with his vessel at Monte 
 Video, for the purpose of t.aking a cargo for himself, and not intending to take freight 
 for others. The master, without the knowledge of the owner, took on board a few 
 bales of Neutra skins, to carry to Boston. It was in evidence that the bales would not 
 more than fill the " pri\'ilege," which the masters of vessels, in a case like that, were
 
 CH. XI.] now FAR LIABLE FOR TORTS OF THE MASTER. 393 
 
 ter borrows for his own private purposes, unless the lender be- 
 lieved on sufficient reason that it was borrowed for the ship.^ 
 The owners of a privateer are responsible for the torts of the offi- 
 cers and crew committed in the exercise of their employment,^ 
 but they are not liable for piratical acts committed by such 
 officers and crew.^ All of these cases, and very many more of 
 
 accustomed to have. The judge, at Nisi Priits, instructed the jurj% " That, although 
 the owners of ships were generally liable for the contracts of their masters abroad 
 touching the ship on the voyage ; yet, as the owner, in this instance, had liimsclf gone 
 in the ship, for the purpose of procuring a cargo, and as the ship was not put up for 
 freight, and as the defendant was not consulted respecting this shipment, nor the per- 
 sons who attended to his business in his absence, but they were taken on board without 
 his knowledge, he was not accountable originally for the safe transportation and 
 delivery of the goods ; but that, if the jury believed that the defendant knew, before 
 his ship sailed from Monte Video, that these bales had been taken on board by the 
 master, he must be considered as having adopted the act of the master, and as having 
 consented thereto, and so would be accountable." These instructions were held to be 
 con-ect, with the exception that it was not sufficient to charge the owner that he knew 
 that the goods were taken on board, but that he must have " knowledge that the goods 
 were received on board upon freight." In Nichols v. DeWolf, 1 11. I. 277, it was 
 held that where an owner sent a vessel on his own account, the master as such had no 
 authority to sign bills of lading." But in Murfrce v. Eedding, 1 Hayw. 276, the owner 
 denied his liability for the breach of a contract of affreightment entered into by the 
 master, on the ground that the latter was put on board merely to navigate the vessel. 
 But the court were of opinion that as he was held out as master, the contract being 
 within the scope of his authority, the owner was liable. 
 
 1 See post, p. 413, n. 7. 
 
 2 The San Juan Baptista, 5 Rob. Adm. 33 ; The Karasan, id. 291 ; Die Fire Darner, 
 id. 357 ; Nostra Signora de los Dolores, 1 Dods. 290 ; LTn\'incible, 1 Wheat. 238 ; 
 The Anna Maria, 2 Wheat. 327 ; The Amiable Nancy, 1 Tainc, C. C. Ill, 3 Wheat. 
 546 ; Talbot v. Tiie Commanders of Three Brigs, 1 Dall. 95 ; Del Col v. Arnold, 
 3 Dall. 333 ; Arnold v. Del Col, Bee, Adm. 5 ; Gibbs i-. The Two Friends, Bee, Adm. 
 416. In The Amiable Nancy, supra, a doubt was expressed whether the liability ex- 
 tended to personal trespasses committed by the master and crew against persons on. 
 board the prize. Some of the cases above cited would seem, however, to extend the 
 liability of the owners to a greater extent than more modern cases would justify. 
 
 8 Dias V. The Privateer Bevenge, 3 Wash. C. C. 262, 268. This case might seem to 
 countenance a distinction which has been sometimes taken between mere torts and 
 offences for which the master is criminally responsible. Sec Ralston v. The State 
 Rights, Crabbe, 22. 
 
 But the writers on maritime law do not ai)pear to make any distinction in this 
 respect between acts which are criminally punishable, and such as are not, nor 
 is it apparent how tliey couhl do so, save in the case of offences against the law of 
 nations; and Dr. Lushington, in the case of The Druid, 1 W. Rob. 391, intimated 
 that he believed none to exist. In Manro v. Almeida, 10 Wheat. 473, it was argued 
 that, as the tresi)ass complained of was alleged to have been piratically done, the civil 
 remedy merged in the crime. The court said : " But this we think, clearl}-, cannot
 
 394 ON THE LAW OF SHIPPING. [BOOK I. 
 
 a like kind, resolve themselves into this rale; that the owner is 
 responsible for the direct consequences of any wrong doing of the 
 master, which is done by him as master, in the discharge of his 
 duty, and under the authority given him as master.^ And here, 
 as in most cases under the law of shipping, the established 
 usage of the port, or of the trade in which the vessel is em- 
 ployed, is of great importance. The question how far the own- 
 ers of a vessel are liable for the wilful and malicious act of the 
 master, is one of great difficulty, especially when such act is 
 done by the master while employed in the usual course of his 
 business. It is said in one case that the liability of the owners 
 depends on the general principles of the maritime law, and not 
 on any special contract.^ But their liability may undoubtedly 
 be increased by a special contract, and the distinction has been 
 taken in some recent cases between the act of the mastec to- 
 wards one to whom the owner owes no more duty than one 
 citizen owes to another, and his act when this duty is increased 
 by reason of a special contract or an obligation imposed upoii 
 him by virtue of his office as carrier. In such a case it would 
 seem that the owner is liable even for the wilful tort of his ser- 
 vant, if it was committed while in his employ and in the man- 
 agement of the conveyance under his control, although the 
 wrong was done in direct opposition to the express commands 
 of the owner.^ And if the owners are obliged to pay dam- 
 
 be maiataiued. Whatever may hare been the barbarous doctrines of antiquit}- about 
 converting goods piratically taken into droits of the admiralty, the day has long gone 
 by since it gave way to a more rational rule, and the party dispossessed was sustained 
 in his remedy to reclaim the property as not devested by piratical capture." 
 
 1 Dias V. The Privateer Revenge, 3 Wash. C. C. 262, 268. The decision of the 
 learned judge in this case goes very thoroughly over the whole cj[uestion, and draws the 
 distinction between a wilful act done while the servant is engaged in the prosecution of 
 his master's business, — as when the master of a vessel commits spoliation on property 
 rightfully seized as a prize, in which case the owners of the vessel would be liable, — 
 and an act wholly out of the scope of his employment, as a piratical seizure. The 
 distinction here pointed out was acted upon in the case of Ealston v. The State 
 Eights, Crabbe, 22, which case we have referred to more at length, ante, p. 392, n. 1, 
 but what we consider to be the true doctrine of the common law is stated by ^Mr. 
 Justice Cowen, in Wright r. Wilcox, 19 Wend. 343, 345, to be that the law holds 
 everv wilful act to be a departure from the master's business. 
 
 ~ I)ean v. Angus, Bee, 369, 375. 
 
 3 This was so held in Weed v. Panama Railroad Co., 5 Duer, 193, where a con- 
 ductor on a railroad stopped and detained the train in a swamp during the night, and
 
 en. XI.] nO-\Y FAR LIABLE FOR TORTS OF THE MASTER. 395 
 
 ages for the wrong doing of the master, they have their remedy 
 over against him.^ 
 
 By the general maritime law the responsibility of the owners 
 of a vessel for the acts of the master and mariners, was limited 
 to the value of the ship and freight; and, by abandoning them, 
 or by their loss before the termination of the voyage, all liability 
 ceased.- The Marine Ordinance of France of 1681,'^ provided 
 that the owners of ships should be responsible for the acts of the 
 master, but that they should be discharged upon abandonment 
 
 the company was held liable for the injuries sustained by a passenger in consequence 
 thereof. In a late case in the Supreme Court of the United States, Philadeli)liia &, 
 Reading Railroad Co. v. Derby, 14 How. 468, the defendant in error was riding in a 
 train, on the railroad of the plaintifts, which came into collision with another train 
 belonging to the same company, whereby he was injured. The accident was caused 
 solely by the engineer of the colliding train running his engine on a track over which 
 he had received express orders not to go. It was held that the company was liable. 
 The court said : " We find no case which asserts the doctrine that a master is not liable 
 for the acts of a sen-ant in his employment, when the particular act causing the injury 
 was done in disregard of the general orders or special command of the master. Such 
 a qualification of the maxim of respondeat superior, would, in a measure, nullify it." 
 In Keene v. Lizardi, 5 La. 431, the owners of a vessel were held liable for the misbe- 
 havior of the master to passengers. See also, St. Amand i\ Lizardi, 4 La. 243 ; Block 
 V. Baunerman, 10 La. Ann. 1. In Chamberlain r. Chandler, 3 Mason, 242, which 
 was an action against a master of a vessel for ill treatment towards his passengers on 
 the voyage, Mr. Justice Story set forth at length the rights of passengers, and held that 
 " their contract is not for mere ship room, and personal existence on board ; but for 
 reasonable food, comforts, necessaries, and kindness. It is a stipulation, not for tolera- 
 tion merely, but for respectful treatment, for that decency of demeanor, which consti- 
 tutes the charm of social life, for that attention which mitigates evils without reluc- 
 tance, and that promptitude which administers aid to distress." 
 
 In Malpica v. ilcKown, 1 La. 248, it was held that the owner was liable for money 
 of a deceased passenger converted by the captain to his own use. And in Arayo r. 
 Currel, 1 La. 528, where the master, the ship having run aground, told the passengers 
 to go on shore, in order that the ship migiit be lightened, and after the ship was got 
 off, he sailed away without them, it was held that the owner was liable. Sec Sunday 
 V. Gordon, Blatchf. & H. Adm. 569. 
 
 1 Dean v. Angus, Bee, Adm. 369 ; Purviance v. Angus, 1 Dall. 18©. 
 
 - Emerigon, Contrats a la Grosse, ch. 4, § 11 ; The Rebecca, Ware, 188, 198 ; Tho 
 Phebe, Ware, 263, 271. By the civil law each of the ownei-s was bound in solido for 
 the full amount of the obligations of the master, arising ex contractu. Dig. 14, 1, 1, 
 23; Dig. 14, 1, 2. But for obligations ex delicto, each was bound only for his part, 
 that is, in proportion to the interest he had in the ship. Dig. 4, 9, 7, 5 ; The Rebecca, 
 "Ware, 188, 194; The Phcl)e, Ware, 263, 268. The contrary is stated in Stinson v. 
 Wyman, Daveis, 172, 173, l)ut apparently without reflection. 
 
 s Ord. de la Mar. liv. 2, tit. 8, art. 2.
 
 396 ON THE LAW OF SHIPPING. [BOOK I. 
 
 of their ship and freight. There has been quite a discussion 
 whether this provision applied to contracts made by the master 
 within the legitimate scope of his authority as master, as where 
 he borrowed money for the necessary repairs and supplies of the 
 ship.^ 
 
 In England the liability of the owners of vessels has been 
 limited by various statutes to the value of the ship and freight.^ 
 The language of the statute now in force is as follows, that-"the 
 owners shall not be answerable in certain specified cases, beyond 
 the value of the ship and the freight due or to grow due, in 
 respect of such ship during the voyage which at the time of the 
 happening of any such events as aforesaid is in prosecution, or 
 contracted for." This statute is substantially the same as the 
 prior ones, and gives no right of abandonment. Several ques- 
 tions of great interest have been decided under the preceding 
 statutes, which we refer to as aids in the true construction of 
 our statutes. 
 
 The question first discussed was in respect to the time at 
 which the value of the ship and freight were to be taken, in a 
 case where the master improperly sold the cargo and terminated 
 the voyage, and the court held that the value at the time of the 
 loss, and not that at the commencement of the voyage, was to 
 be taken.3 All the subsequent cases in England, where the 
 time at which the value should be taken has been discussed, 
 have been cases of collision, and it has been held that the value 
 existing immediately prior to the occurrence of the accident, is 
 
 1 Valin, book 2, tit. 8, art. 2, anil Pothier, " Dcs Proprietaires," liv. 2, tit. 8, art. 2, 
 hold, on the one hand, tliat the provisions of the article above referred to, do not apply 
 to the conti-acts of the master, while Emerigon, Traite a la Grosse, eh. 4, § 11, is of the 
 opposite opinion. The New Code de Commerce adopts substantially the language of 
 the Ordonnance, and this has occasioned another controversy. Pardessus, Cours do 
 Droit Comni. torn. 3, tit. 3, c. 3, art. 663, supports the views of Valin, while Boulay 
 Paty, Droit Coram, tom. 1, tit. 3, adopts those of Emerigon. The Court of Cassation 
 has, however, decided that the owner of a vessel is indefinitely responsible for all the 
 acts of the captain within the sphere of his authority, and especially for bottomry loans 
 contracted in the course of a voyage. Tourrel v. Fabry, 19 Am. Jurist, 233. 
 
 2 Stats. 7 Geo. 2, c. 15 ; 26 Geo. 3, c. 86 ; 53 Geo. 3, c. 159; 17 & 18 Vict. c. 104, 
 § 503, et seq. 
 
 3 Wilson V. Dickson, 2 B. & Aid. 2. This decision was affirmed in a subsequent 
 case, under similar circumstances. Cannan i'. Meaburn, 1 Bing. 465.
 
 en. xr.] now far liable for torts of the master. 397 
 
 that on which the liability of the owners is to be based, even 
 though the vessel in fault sunk immediately after the collision.^ 
 The value of the vessel at that time is the sum for which she 
 could have been sold, and this is to be ascertained, not by mak- 
 ing deductions from her cost price proportioned to her age, but 
 by a valuation and appraisement.^ In respect to the freight, 
 that paid in advance has been included.'^ And it has been held 
 that the whole freight is liable, and that no deductions are to be 
 made for, or on account of bottomry, mortgage, pilotage, or tow- 
 age, or for seamen's wages.'* The amount of freight for which 
 the owners are liable, is that which would have been earned had 
 the voyage been completed, and not that calculated on at the 
 commencement of the voyage.^ 
 
 If a part-owner is on board and in command of the vessel, 
 
 1 Brown v. Wilkinson, 15 I\r. & W. 391; Tho Mary Caroline, 3 W. Rob. 101 ; 
 Leycester v. Logan, 3 Kay & J. 44G. 
 
 2 "Wilson I'. Dickson, 2 B. & Aid. 2 ; Dobrce v. Schroder, 6 Sim. 291, 2 Mylnc & C. 
 489. In The African Stcamsliip Co. r. Swanzy, 2 Kay & J. 6G0, it was held, that 
 the value of a ship within the meaning of the IMerchant Shipping Act of 1854, 17 & 18 
 Vict. c. 104, s. 504, was not the value ■which the owner would have set upon his vessel, 
 nor was the sum, for which he might have recently insured her, the only criterion, al- 
 though it might be one of many. But under ordinary circumstances, and with the 
 exception of the case where there is no market for a ship of the kind, such value would 
 be taken to be what the ship weuld have brought, if sold immediately before the loss. 
 In the excepted case one criterion would be to ascertain what the ship cost, and then 
 to deduct the subsequent deterioration. See also, generally, The Dundee, 1 Hagg. 
 Adm. 109, S. C, Gale v. Laurie, 5 B. & C. 156; The Carl Johan, cited 1 Ilagg. 
 Adm. 113. 
 
 8 Wilson V. Dickson, 2 B. & Aid. 2. 
 
 * The Benares, 1 Eng. L« & Eq. G37. 
 
 * Cannan v. Meaburn, 1 Bing. 405. In tliis case the vessel sailed with a full cargo, 
 the freight of which would have amounted to j£2,000 if the goods iiad arrived at their 
 port of destination. On the voyage the vessel put into port in distress, and the cap- 
 tain sold a part of the cargo which belonged to the owners of the vessel for the pur- 
 pose of raising funds for rcjjair.s. Part was applied to this object, and the remainder 
 of the proceeds was remitted to the owners of the vessel. The vessel then proceeded 
 on her voyage, but became leaky, and a jettison of another portion of the cargo was 
 made. She then put into an intermediate port, and the cargo was unloaded and stored 
 in two warehouses. Soon after one warehouse with its contents was consumed by fire, 
 leaving one hundred and forty chests of indigo, and thirty casks of tallow, which were 
 in auotlier warehouse, remaining. Tlie ship and the remaining cargo were afterwards 
 sold without the knowledge or jirivity of the defendants. The jury found that the 
 ship might have been repaired and the goods forwarded. The court held that only the 
 freight of the goods which remained, and whicli might have been sent on, was 
 li.iblc. 
 
 VOL. I. 34
 
 398 ON THE LAW OF SIIIPl'ING. [BOOK I. 
 
 his negligence does not deprive the other owners of the benefit 
 of the statute.! Nor can the negligent part-owner be made 
 answerable beyond the value of the ship and freight, if the 
 action is in rem, and he is a party to the suit, merely by reason 
 of his entering his appearance as owner.^ The owners of a 
 vessel are, however, personally liable for costs, if the ship and 
 freight are not sufficient to compensate for the damage done.^ 
 
 The statute of 26 Geo. 3, c. 86, was designed to apply only 
 to vessels usually employed in making sea voyages, and 
 not to small craft, lighters, or boats engaged in inland naviga- 
 tion.4 
 
 Where a liability is incurred by any ownex of a vessel in a 
 case where he is responsible only to the value of the ship and 
 freight, and several claims are made or apprehended in respect 
 to such liability, it is obvious that great injustice would be done 
 were the owner liable to each party interested, to the full value 
 of the ship and freight, and this w^ould be true, on the other 
 hand, in respect to the others having claims against the owner, 
 were it held that the latter was only liable to the first who 
 should obtain judgment against him. To obviate this difficulty 
 it has been provided that the owner may institute proceedings 
 in the High Court of Chancery in England or Ireland, and in 
 Scotland in the Court of Sessions, and in any British possession 
 in any competent court, to determine the amount of his liability, 
 and to distribute such amount ratably among the several claim- 
 ants, with power to the court to stop all actions and suits pend- 
 ing in any other court in relation to the same subject-matter.° 
 But as a general rule the court in which the case is pending will 
 not restrain the plaintiff from proceeding because the defendant 
 
 1 Wilson V. Dickson, 2 B. & Aid. 2. 
 
 2 The Volant, 1 W. Rob. 385. 
 
 3 The Volant, 1 W. Eob. 385; Dobroe v. Schroder, 6 Sim. 291 ; The John Dunn, 
 1 W. Rob. 159. A prohibition was afterwards moved for in this case in the Court of 
 Queen's Bench, but the rule was discharged, the court being of the opinion that the 
 true principle had been ado^ited in the admiralty court. Ex parte Eayne, 1 Q. B. 982, 
 1 Gale & D. 374. 
 
 * Hunter v. M'Gown, 1 Bligh, 573. It was held in this case that the owners of a 
 gabbert, a species of lighter, were liable for the loss of goods on board by an accidental 
 fire. 
 
 5 Act of 17 & 18 Vict. c. 104, § 514.
 
 CH. XI.] now FAR LIABLE FOR TORTS OF THE MASTER. 399 
 
 has filed his bill in equity for relief.^ And in order to stay pro- 
 ceedings the owner must aver that he had incurred liability in 
 respect of some damage.- If a party obtains judgment in an- 
 other court before the owner institutes proceedings in chancery, 
 he is allowed his costs, but is entitled to no other preference 
 over the other claimants, and must share ratably with them in 
 the value of the ship and freight.^ 
 
 Since the liability of the owners of a vessel is limited by 
 statute, the fact that, if the vessel is arrested, they give bail to a 
 larger amount, does not increase their liability.* 
 
 We shall now proceed to examine, somewhat at length, the 
 provisions of the statutes which have been passed in this coun- 
 try, restricting the liability of ship-owners. Local statutes were 
 first passed in Massachusetts^ and Maine,*^ and it was not till 
 the year 1851 that any general statute was enacted by congress." 
 The statutes of Massachusetts and Maine provide that " no ship- 
 owner shall be answerable, beyond the amount of his interest in 
 the ship and freight, for any embezzlement, loss, or destruction, 
 by the master or mariners, of any goods, wares, or merchan- 
 dise, or any property put on board of such ship or vessel, nor 
 for any act, matter or thing, damage, or forfeiture done, occa- 
 sioned or incurred, by the said master or mariners, without the 
 privity or knowledge of such owner." Neither of these statutes, 
 it will be seen, gives the right of abandonment, but in a case in 
 Maine, the statute seems to have been construed as if such a 
 clause existed;^ but the language of Mr. Justice Story, in a 
 
 1 Thiseldon v. Gibbons, 8 Dowl. P. C. 419, nom. Thistlcton v. Gibbous, 4 Jur. 
 629. 
 
 2 Hill V. Andrus, 1 Kay & J. 263. 
 
 ^ Lcyccster v. Lop;.an, 3 Kay & J. 446. 
 
 * The Eichniond, 3 Ila^'g. Adin. 431 ; The Mary Caroline, 3 W. Rob. 101, 105; 
 The Duchcsse do Brabant, Eng:. Adni., 21 Law Ileportcr, 243. 
 
 5 Hev. Stats. Mass. c. 32, § 1. 
 
 6 Rev. Stats. Maine, 1841, c. 47, § 8 ; Rev. Stats. 1857, c. 30, § 5. 
 T Act of 185U c. 43, 9 U. S. Stats, at Large, 635. 
 
 ^ Stinson v. Wyman, Davois, 172. The action in this case was on a bill of lading 
 to recover for damage done to goods by their being improperly carried on deck. It 
 was held, that the statnte was intended to-limit tlic rcsponsiliility of the owner for losses 
 occasioned by the Aiult or negligence of the master, as well as for those which arise 
 from direct and wilful fraud ; and that if the decree should exhaust the whole value of 
 the ship and freight, tlie respondents, by abandoning, would be released from further 
 responsibility.
 
 400 ON THE LAW OF SHIPPING. [BOOK I. 
 
 subsequent case under the JMassachusetts statute, tends to show 
 that the value of the ship and freight in cases of tort, as well as 
 in cases of contract, is to be taken at the time when the right of 
 action accrues to the injured party. ^ 
 
 The United States statute, passed in ISol,^ differs in some 
 respects from the statutes previously referred to. The third sec- 
 tion provides, " That the liability of the owner or owners of any 
 ship or vessel, for any embezzlement, loss, or destruction, by the 
 master, officers, mariners, passengers, or any other person or per- 
 
 1 Pope V. Nickerson, 3 Story, 465. The action in this case was in personam against 
 the owners of the vessel to recover a cargo of fruit and wine consigned to the plaintiffs. 
 The vessel sailed in a sea-worthy condition, but was obliged, on the voyage, to put into 
 an intermediate port in distress. Part of the cargo, which was in a damaged condi- 
 tion, was sold and the proceeds applied to defraying the expenses of repairing the ves- 
 sel. This amount not being sufficient the master obtained the rest on a bottomry bond 
 intended to cover the vessel, cargo, and freight. The vessel then sailed, but was 
 obliged to put back, and the rest of the cargo, part of which was in a perishing condi- 
 tion and part not, was sold together with the ship. The proceeds of vessel and cargo 
 were applied to the payment of the bond, and the surplus paid over to the master. 
 There were three questions presented under the statute of Massachusetts. First, 
 whether the statute applied to cases of contracts made by the master within the scope 
 of his authority. Second, admitting the statute applied, at what time the value of the 
 ship and freight was to be taken ; and, third, as to the time of the valuation in case 
 of tort. On the first point Mr. Justice Story was of the opinion, in accordance with 
 the authorities cited ante, p. 396, note 1, that the statute was not applicable. He then 
 was of the opinion that if the statute did apply to the case where the master appro- 
 priated the proceeds arising from the sale of a perishable cargo, to the repairing of the 
 ship, the value of the ship and freight was to be taken as it existed at the time of such 
 appropriation, and not subsequently, when it was burdened with a bottomry bond. He 
 said, p. 498 : " But at what time is this value to be ascertained and fixed ? It must be the 
 value at the time when the right of action against the owners first accrues, and not at 
 any subsequent period. Suppose, after the right of action has attached, the ship 
 perislies, tliat will not affect the right of recovery of the shipper in a case of tort ; and 
 a fortiori it will not in a case of contract made by the master, by and under the au- 
 thority of the owners." In regard to the third question, as to the liability of the owners 
 for the goods finally sold, Mr. Justice Story said, p. 504 : " They are liable therefor to 
 the extent of their interest in the schooner and freight, and no further, at the time of the 
 misconduct and tortious sale. But at that very time the ship was under a bottomry 
 bond greater than her value, and by the breaking up of the voyage, and the sale of the 
 schooner, the bond became absolutely due to the bond holders. These were acts of the 
 master contemporary with the voluntary sale of the cargo, and indeed they may all be 
 treated as one and the same transaction, constituting parts of the res gestce, and done, as 
 it were, uno flatu ct ttno intuitu. So that, at the time, the owners had, in effect, no 
 interest whatsoever in the schooner or freight, but the value of both had been ex- 
 hausted." 
 
 2 Ch. 43, 9 U. S. Stats, at Large, 635.
 
 CH. XI.] now FAR LIABLE FOR TORTS OF THE MASTER. 401 
 
 sons, of any property, goods, or merchandise, shipped or put on 
 board of such ship or vessel, or for any loss, damage, or injury 
 by collision, or for any act, matter, or thing, loss, damage, or for- 
 feiture, done, occasioned, or incurred, without the privity or 
 knowledge of such owner or owners, shall in no case exceed the 
 amount or value of the interest of such owner or owners respec- 
 tively, in such ship or vessel, and her freight then pending." 
 
 The fourth section provides, " That if any such embezzlement, 
 loss, or destruction shall be suffered by several freighters or 
 owners of goods, wares, or merchandise, or any property what- 
 ever, on the same voyage, and the whole value of the ship 
 or vessel and her freight for the voyage, shall not be sufficient to 
 make compensation to each of them, they shall receive compen- 
 sation from the owner or owners of the ship and vessel, in pro- 
 portion to their respective losses ; and for that purpose the said 
 freighters and owners of the property, and the owner or owners 
 of the ship or vessel, or any of them, may take the appropriate 
 proceedings in any court, for the purpose of apportioning the 
 sum for which the owner or owners of the ship or vessel may be 
 liable amongst the parties entitled thereto.^ And it shall be 
 deemed a sufficient compliance with the requirements of this 
 act, on the part of such owner or owners, if he or they shall 
 transfer his or their interest in such vessel and freight, for the 
 benefit of such claimants, to a trustee, to be appointed by any 
 court of competent jurisdiction, to act as such trustee for the 
 person or persons who may prove to be legally entitled thereto, 
 from and after which transfer, all claim and proceedings against 
 the owner or owners shall cease." 
 
 Several questions of great difficulty and importance have 
 arisen in respect to the construction of these two sections. 
 First, Is the value of the ship and freight to be estimated imme- 
 diately prior to the occurrence of the event which imposed the 
 liability on the ship-owner, or is that existing at the time of suit 
 brought to be taken ? Second, Does the same rule apply to cases 
 of a breach of a contract of aflrcightment and those of collision, 
 under the third section ? Third, How far does the right of 
 
 1 The 2d section of the Massacliusctts statute ami the 9tli section of the Maine stat- 
 ute are very similar to this. Ilev. Stats. Mass. c. .'52 ; Rev. Stats. Maine, c. 47. Tliis 
 is substantially rcenactecl by Rev. Stats. Maine, 1857, c. 3G, § 5. 
 
 34*
 
 402 ON THE LAW OF SHIPPING. [BOOK I. 
 
 abandonment given by the fourth section correspond with the 
 provisions of the maritime law, and what effect does it have upon 
 the third section as determining the time when the value of the 
 ship and freight is to be taken ? Fourth, Is an abandonment 
 allowed in a case of collision under the fourth section ? 
 
 It is a primary rule in the interpretation of a statute, that all 
 the sections thereof are to be construed together, so that one 
 section may often be explanatory of another.^ We shall, there- 
 fore, first consider the effect of the fourth section relative to the 
 right of abandonment. 
 
 The first part of this section, we think, clearly does not apply 
 to a case of collision. It is limited in express terms to the case 
 of loss suffered by freighters or owners of goods or any property 
 whatever on the same voyage ; and is intended to allow the pro- 
 ceedings therein set forth only in a case of a breach of a contract 
 of affreightment, where several claims are pending against, or 
 apprehended by, the owners of the ship. The omission of the 
 subject of collision seems to have arisen by the framers of the 
 statute following the statutes of Massachusetts and Maine, 
 which, like the early English statutes of 7 Geo. 2, c. 15, and 26 
 Geo. 3, c. 86, limited the owner's liability to cases of affreight- 
 ment and did not apply to collision. We infer this because the 
 language of the 53 Geo. 3, c. 159, which applies to collision, is 
 so clear and explicit on this point that it must have been fol- 
 lowed, had it not been overlooked, or intentionally passed over. 
 This statute provides that "if several persons shall suffer any 
 loss or damage in or to their goods, wares, merchandises, ships, 
 or otherwise," etc. 
 
 The question then is, whether the last part of the fourth sec- 
 tion, which commences, " And it shall be deemed a sufficient 
 compliance with the requirements of this act," applies solely to 
 the former part of the same section, or to the third section. If 
 the former construction be the true one, the right of abandon- 
 ment is but an extension of the right given by the English and 
 American statutes alike of applying to the court where there are 
 several claims pending or apprehended. So that the ship- 
 
 1 See The Dundee, 1 Hagg. Adm. 109, 121 ; Wattson v. Marks, U. S. D. C, Penn., 
 2 Am. Law Register, 157.
 
 CH. XI.] HOW FAR LIABLE FOR TORTS OF THE MASTER. 403 
 
 owner has the right of ceasing to be a party to the suit by 
 transferring his interest (which must then be construed to mean 
 the amount of his liability) to a trustee. 
 
 It is an undoubted principle, that statutes which are in 
 derogation of the common law are to be construed strictly, 
 and this, and similar statutes, limiting the liability of ship- 
 owners, are clearly subject to this rule.^ Now by the common 
 law the owner was liable to the full extent of the damage done. 
 But the right of action did not accrue in all cases at the same 
 time. In a case of tort, the right of action existed the moment 
 the tort took place, while in an action for a breach of contract, 
 no right existed till the time when the contract was broken, or 
 when it became evident that it could not be performed. It 
 would, therefore, follow that if the right of abandonment does 
 not apply to any thing more than the first part of the fourth sec- 
 tion, the value of the ship and freight in a case of collision 
 should be taken at the time when the right of action accrued, 
 and this, according to the English decisions, is the value imme- 
 diately prior to the accident. In cases of contracts of affreight- 
 ment the right of action may accrue at different times accord- 
 ing to circumstances. Thus, if on a voyage the goods are 
 embezzled, it may well be that the right does not accrue till the 
 end of the voyage because the master may obtain possession of 
 the goods and deliver them, in accordance with the terms of the 
 bill of lading. But where the goods are wrongfully sold by the 
 master and the voyage broken up, we think it equally clear that 
 the right of action accrues at once and that the value of the ship 
 and freight should be estimated at that time.^ 
 
 It only remains, then, to consider to what the last part of the 
 fourth section was intended to apply, ^he term "for such 
 claimants " would seern clearly to refer to the claimants men- 
 tioned in the former part of the section, and not to extend to the 
 third section, in which the word does not occur. It may be said 
 
 1 Pope V. Nickerson, 3 Story, 463; The Rebecca, Ware, 188; The riiebc. Ware, 
 263, 271 ; Stinson v. AV3-man, Davcis, 172, 175; The Karasan, 5 Rob. Adm. 291 ; The 
 Benares, 1 Eng. L. & Eq. 637 ; Low v. Mumford, 14 Johns. 426 ; Patten v. Gurncv, 
 17 Mass. 182. 
 
 2 See Pope I'. Nickerson, 3 Story, 465 ; Wilson v. Dickson, 2 B. & Aid. 2 ; Cannan 
 V. Meabum, 1 Bing. 465.
 
 404 ON THE LAW OF SHIPPING. [bOOK I. 
 
 that since the trustee is authorized to hold for the benefit of " the 
 person or persons who may prove to be entitled thereto," it fol- 
 lows that the act had reference to a case where there was but 
 one claimant, and this could only be under the third section. 
 But the answer is, that although there be several claimants, yet 
 only one may be entitled to recover, and the word " person " is 
 meant to apply to him. 
 
 Our confidence in this position is somewhat shaken by a 
 learned and elaborate decision in the District Court of the Penn- 
 sylvania District,! but we think further adjudication is necessary 
 to determine the various points which have arisen under this 
 statute. It was also held, in this case, that the fact of the ves- 
 sel's being insured and a loss paid, would confer no rights upon 
 the shipper, this not being an " interest in the vessel " within the 
 meaning of that term, in the Act of 1851. 
 
 In respect to the "freight then pending," it has been held that 
 the earnings of the vessel in transporting the goods of the own- 
 ers are to be included.^ 
 
 The second section of the Act of 1851,^ provides " that if any 
 shipper or shippers of platina, gold, gold dust, silver, bullion, or 
 
 1 Wattson V. Marks, U. S. D. C, Penn., 2 Am. Law Register, 157. The point 
 actually decided in this case does not conflict, we think, with any of the English cases. 
 And the opinion of the court, though veiy learned and elaborate, does not seem to be in 
 eveiy respect accurate, especially in stating the points decided in cases cited in the course 
 of the decision. The libel was in personam upon a contract of affreightment. The vessel 
 was wrecked on the coast of California, and at some time, cither shortly before or after 
 she struck, the goods of the libellant were stolen by some person unknown. Kane, J., 
 said, p. 163 : "But whether the robbery preceded or followed the moment of wreck, or 
 was contemporaneous with it, is in my judgment of no importance." This opinion 
 proceeds on two grounds, first, that aside from the fourth section of the statute the 
 value of the^ip and freight is to be taken at the time the right of action accrued to 
 the shipper, and that " the right of action, in a contract of affreightment against the 
 carrier, unlike that which grows out of a collision, does not accrue till the end of the 
 voyage, or the lapse of a reasonable time for the delivery of the cargo." Artd, second, 
 because under the fourth section the measure of the ship-owner's liability must be, " in 
 cases of affreightment at least, the value of the vessel and freight at the time of suit 
 brought." The reason given for this is, that the transfer of his interest could not pass 
 more than he had at the time. But the words "interest in such vessel and freight" 
 may mean something more than merely his share in the vessel, and niay be construed 
 as the amount due by reason of such ownership, or in other words, his interest in 
 the ship and freight at the time the right of action accrued. 
 
 2 Allen v. Mackay, U. S. D. C, Mass., 16 Law Reporter, 686. 
 
 3 Ch. 43, 9 U. S. Stats, at Large, 635.
 
 en. XI.] now far liable for torts of the master. 405 
 
 other precious metals, coins, jewelry, bills of any bank or public 
 body, diamonds or other precious stones, shall lade the same on 
 board of any ship or vessel, without, at the time of such lading, 
 giving to the master, agent, owner, or owners of the ship or ves- 
 sel receiving the same, a note in writing of the true character 
 and value thereof, and have the same entered on the bill of lad- 
 ing therefor, the master and owner or owners of the said vessel 
 shall not be liable, as carriers thereof, in any form or manner. 
 Nor shall any such master or owners be liable for any such valu- 
 able goods beyond the value and according to the character 
 thereof so notified and entered." 
 
 Under this statute it has been held, that where the contract of 
 carriage has been clearly defined in all its particulars by the par- 
 ties in the bill of lading, and there is no imputation of fraud or 
 mistake against the shipper, but he has fully executed his part 
 of the contract, the ship-owner shall not relieve himself from 
 liability by alleging that there has been a want of literal con- 
 formity to the provisions of this section; and that the carrier is 
 estopped from denying his liability, if the bill of lading contains 
 a substantial and clear recognition of all the facts which the 
 statute required the shipper to inform the master of.^ 
 
 The English statute of 17 & 18 Vict. c. 104, § 503, exempts 
 the owners of a vessel from loss occasioned by reason of rob- 
 bery, embezzlement, making away with or secreting similar arti- 
 cles, " unless the owner, or shipper thereof, has, at the time of 
 shipping the same, inserted in his bills of lading, or otherwise 
 declared in writing to the master or owner of such ship, the true 
 nature and value of such articles." Under this statute it has 
 been held, that the description in the bill of lading of a parcel 
 of gold shipped as " one box containing about two hundred and 
 forty-eight ounces of gold dust," is not a sufficient statement of 
 its value.2 
 
 1 Wattson V. Marks, U. S. D. C, Penn., 2 Am. Law Register, 157. The case of 
 Greyor v. The Black AVanior, U. S. I). C., La., Boston Courier, March 18, 1858, 
 seems to be opposed to so liberal a construction, but the report of the case does not 
 state whether or not the bill of lading contained a statement of the facts required by 
 the statute to be in the note. 
 
 - Williams v. African Steamship Co., 1 II. & N. 300, 37 Eng. L. & Eq. 462. lu 
 Gibbs V. Potter, 10 M. & W. 70, on a shipment of a cargo from Valparaiso to Eng-
 
 406 . ON THE LAW OF SniPPINQ. [BOOK I. 
 
 We have already seen that both in England and in this coun- 
 try the owner of a vessel is not liable for damage done to goods 
 by an accidental fire happening to, or on board, of a vessel.^ 
 The act of 1851 does not apply to any canal boat, barge, or 
 lighter, or to any vessel of any description whatsoever, used in 
 river or inland navigation.^ Under this section it has been held, 
 that a vessel on Lake Erie is not a vessel used in inland navi- 
 gation, the lakes not being considered as inland waters.^ 
 
 SECTION IV. 
 
 OF TnE CONTRACTS OF BOTTOMRY AND OF RESPONDENTIA. 
 
 A. Of the purpose of a Bottomry Bond. 
 
 One of the most important of the powers of the master is 
 that of making a bottomry bond. By this instrument the ship 
 is hypothecated for the payment of money borrowed.* As 
 usually defined, its essentials are, that it shall bind the ship for 
 the payment of the money, provided the ship perform a certain 
 voyage and arrive in safety ; and if the ship be lost, no part of 
 
 land, the bills of lading described the property as " 1,338 hard dollars," which was a 
 coin current at Valparaiso at the time. It was held to be a sufficient compliance with 
 the provisions of the statute of 26 Geo. 3, c. 86, s. 3, which is similar to Dhat above, 
 on the ground that it is enough to state the value at the port of shipment. Lord Ahin- 
 ger also doubted whether the act could apply to countries not subject to British rule, 
 and was clearly of the opinion that if it did, it could only be when the goods were 
 shipped to an English port. 
 
 1 See ante, p. 183, note. 
 
 2 § 7, 9 U. S. Stats, at Large, 636. 
 
 3 Moore v. American Transp. Co., Supreme Ct., Mich., Boston Courier, Aug. 3, 
 1858. 
 
 * The contract of bottomiy is so called because the keel or bottom of the ship is 
 pledged, a part being figuratively used for the whole. The Atlas, 2 Hagg. Adm. 48, 53 ; 
 Scarborough v. Lyrus, Latch, 252, Noy, 95. In Blaine v. The Charles Carter, 4 
 Cranch, 328, Chase, J., said : " A bottomry bond made by the master, vests no abso- 
 lute indefeasible interest in the ship on which it is founded, but gives a claim upon her, 
 which may be enforced, with all the expedition and efficiency of the admiralty process." 
 See also, Johnson v. Shippen, 2 Ld. Eaym. 982 ; Johnson v. Greaves, 2 Taunt. 344 ; 
 United States i'. Delaware las. Co., 4 Wash. C. C. 418.
 
 CU. XI.] CONTRACTS OF BOTTOMRY AND OF RESPONDENTIA. 407 
 
 the sum borrowed is to be repaid ;i and because the lender 
 takes upon himself this risk, he may charge for the use of the 
 money, maritime interest, or extra interest which will cover and 
 compensate for the risk he runs, which interest would be usurious 
 but for that risk.^ Such is the description in fact of nearly all 
 bottomry bonds ; but there seems no good reason why a bottomry 
 bond may not provide for common interest, and for payment by 
 the owner of the ship of the money borrowed whether the ship 
 be safe or lost ; and, nevertheless, be so far a bottomry bond as 
 to bind the ship effectually and give a lien upon it which may 
 be enforced as in the case of an ordinary bottomry. 
 
 i The Atlas, 2 Ilajrg. Adm. 48 ; Jennings v. Ins. Co. of, Penn., 4 Binn. 244 ; 
 Greeley v. Watcrhousc, 19 Maine, 9 ; Leland v. The Ship Medora, 2 Woodb. & M. 92, 
 107; Kucher v. Conyngham, 2 Pet. Adm. 295, 303 ; The Brig Draco, 2 Sumner, 157; 
 Bray v. Bate.s, 9 Met. 237 ; The William and Emmeline, Blatclif. & 11. Adm. 66 ; 
 The Brig Atlantic, 1 Newb. Adm. 514; The Emancipation, 1 W. Rob. 124; Stain- 
 bank V. Penning, 11 C. B. 51, G Eng. L. & Eq. 412. In The Nelson, 1 Hagg. Adm. 
 169, the sum was to be paid within one month "after the ship an-ived at her port." 
 This was held to be a sufficient description of a sea risk. In Simonds i\ Hodgson, 3 
 B. & Ad. 50, the bond, after reciting that the vessel had received damage, and that the 
 master had borrowed £1,077, proceeded as follows : "I bind myself, my ship, her ap- 
 parel, tackle, etc., as well as her freight and cargo, to pay the above sum with £12 per 
 cent, bottomry premium ; and I further bind myself, said ship, her freight and cargo, 
 to the payment of that sum, with all charges thereon, in eiijht dai/s after mi/ mrival at 
 the port of London ; and I do hereby make liable the said vessel, her freight and cargo, 
 ivhether she do or do not mrive at the port of London, in preference to all other debts or 
 claims, declaring that this pledge or bottomry has now, and must have, preference to 
 all other claims and charges, until such principal sum, witi; £12 per cent, bottomry 
 premium, and all charges are duly paid." Held, reversing the judgment of the Court 
 of Common Pleas, 6 Bing. 114, that this was an instrument of bottomry, that the 
 words mi/ arrival must be understood to mean my ship's arrival, and that the words, " I 
 make liable the said vessel, etc., whether she do, or do not arrive at London," were 
 intended only to give the lenders a claim on the ship, in preference to other claims, in 
 ca->e of the ship's arrival at some other than the destined port, and not to provide for 
 the event of the loss of the ship. 
 
 - Sharpley i-. Ilurrel, Cro. Jac. 208 ; Soomc v. Glcen, Sid. 27 ; The Cognac, 2 Hagg. 
 Adm. 377, 387. In The Atlas, 2 Hagg. Adm. 48, 57, Lord Slowcll said : " If the ship 
 arrived safe, the title to repayment became vested ; but if the sliip perished in itincre, the 
 loss fell entirely upon the lender. Ui)on that account, the lender was entitled to demand 
 a much higher interest tlian the current interest of money in ordinary transactions. It 
 partook of tlie nature of a wager, and, therefore, was not limited to the ordinary inter- 
 est ; the danger lay not upon the borrower, as in ordinary cases, but upon the lender, 
 who was, therefore, entitled to charge his prctium p/riculi, his valuation of the danger 
 to which he was exposed." In White v. Ship Daedalus, 1 Stuart, Lower Canada, 130, 
 a bond on a voyage from Quebec to London at twenty-five per cent, interest, was held 
 to be valid.
 
 408 ON THE LAW OF SIIIPPIXG. [bOOK I. 
 
 It must be remembered that the law-merchant not only permits 
 such a bargain, but of itself, and by its own proper force, has 
 this effect. For if a master borrow money abroad, for the neces- 
 sities of the ship and so apply the same, and no instrument of 
 bottomry or hypothecation is given, the law-merchant gives to 
 the lender a lien on the ship for the amount, in addition to any 
 remedy he may have at common law against the owner as his 
 debtor for money borrowed.^ And it is not easy to see, why an 
 instrument executed between the parties, and intended to have 
 this very effect, may not be permitted to do so.^ 
 
 1 See Wainwright v. Crawford, 3 Yeates, 131, 4 Dall. 225. And it is said that the 
 owner is liable for money borrowed in a case of necessity, although the necessity arose 
 by the fault of the master. Descadillas v. Harris, 8 Greenl. 298. 
 
 '■^ It has been said, that unless more than legal interest is charged by the contract, it 
 is not a loan on bottomry. Leland v. The Medora, 2 Woodb. & M. 92, 107 ; The Mary, 
 1 Paine, C. C. 671. In The Emancipation, 1 W. Rob. 124, 130, Dr. Liishinrjton said: 
 " I am aware that it is not absolutely necessary that a bottomry bond should carry 
 maritime interest, and that a party may be content with ordinary interest ; but when 
 the character of an instrument is to be collected from its contents, and where the argu- 
 ment in support of the bond is, that the advance of the money was attended with risk, 
 it is a material circumstance, that only an ordinary rate of interest should be demanded. 
 It is impossible to conceive that any merchant carrying on his business with ordinary 
 care and caution, would be content to divest himself of all security for the loan of his 
 money but a bottomry bond, and ask no greater emolument than the ordinary interest 
 of £6 per cent., if the repayment of such loan was to depend upon the safe arrival of 
 the vessel at the port of her destination, after performing such a voyage." In this case 
 only legal interest was stipulated for, and the repayment of the loan did not depend on 
 the safe arrival of the vessel. The bond was held invalid. See also, Stainbank v. 
 Penning, 11 C. B. 51, 6 Eng. L. & Eq. 412; Jennings v. Ins. Co. of Penn., 4 Binn. 
 244. It does not appear very distinctly from the case of Selden v. Hendrickson, 1 
 Brock. C. C. 396, whether the bond was given on legal or on maritime interest, though 
 the foi-mcr seems to be the more correct view, the decree being for the amount of the 
 bond with seven per cent, interest, that being the legal interest at the port where the 
 bond was given; and Marshall, C. J., said: "In fact I can conceive no reason, why a 
 master may not, for the success of the voyage, hypothecate the vessel to secure a debt 
 carrying only legal interest, in any case where he might bind the owner personally." 
 See also. The Brig Atlantic, 1 Newb. Adm. 514. In the case of The Hunter, Ware, 
 249, money was advanced, on the personal credit of the owner, for refitting the ship, 
 and a bond subsequently given. The court held, that the bond was invalid, but, on 
 the libel being amended, rendered a decree for the sum advanced with legal interest. 
 !Mr. Justice Ware said: " If the court has authority to separate the good from the bad, 
 and to reduce the maritime premium when an oppressive advantage has been taken of 
 the necessities of the borrower, is it quite certain that it may not, in the exercise of its 
 equitable powers, render judgment, in a case like the present, for the principal sum ad- 
 vanced with land interest ? " See also the remarks of Mr. Justice Story in the case of 
 The Virgin, 8 Pet. 538, 550. But in the case of The Brig Ann C. Pratt, 1 Curtis, C. C.
 
 en. XI.] CONTRACTS OF BOTTOMRY AND OF RESPONDENTIA. 409 
 
 It is to be remarked, however, that a bottomry bond becomes 
 payable not only when the ship arrives in safety, but also on 
 some other contingencies, as when the voyage or adventure is 
 broken up and terminated by a third party,^ by the owner, or by 
 his servant the master, by a voluntary and unnecessary act, in 
 any way whatever; as h^ deviation;''^ or by a sale;^ or by an 
 intended wreck, or any intentional loss of the ship.* It is not 
 
 340, where a sum of money was advanced on the faith of a bond, and subsequently a 
 bond was made out in which a much hirger sum was inserted, in order to deceive the 
 underwriters, and two sets of accounts and vouchers were made out, Mr. Justice Curtis 
 held the bond invalid on the ground of fraud, and also was of the opinion that the 
 libellants had no lien in rem on the vessel for the amount actually advanced, on the 
 ground that the parties contracted solely with reference to the bond, and did not intend 
 that a lien should exist on the ship as a security for the simple loan. This case was 
 affirmed on appeal, on the ground of fraud, Carrington r. Pratt, 18 How. 6.3. In The 
 William and Emmelinc, 1 Blatchf & 11. Adm. 66, the instrument, purporting to be a 
 bottomry bond, bound the ship for a certain sum with simple interest, which was to be 
 paid at all events. ]\Ir. Justice Betts held, that,. though this was not in strictness a 
 bond, yet the vessel was liable in rem. 
 
 1 Grcely v. Smith, 3 Woodb. & M. 236. 
 
 2 2 Emerigon, Traite' a la Grosse, ch. 8, § 4 ; Harman v. V.inhatton, 2 Vern. 717 ; 
 Western v. Wildv, Skin. 152 ; Williams r. Steadman, id. 345. In Wilmer v. The Smi- 
 lax, 2 Pet. Adm. 295, note, the bond was given for a specific voyage, which was never 
 commenced, but the vessel performed another. Held, that the right of the owner to 
 demand his money back was comjjlcte the moment the vessel sailed on the new voyage. 
 But a deviation from necessity will not have this effect. The Armadillo, 1 W. Rob. 
 251. 
 
 3 The Brig Draco, 2 Sumner, 157. 
 
 * In Pope V. Nickerson, 3 Story, 465, the vessel put into an intermediate port, having 
 received damage, and was sold by the master. Subsequently she was repaired by the 
 vendee and made a voyage to the United States. Mr. Justice Slori/ said, p. 486 : " The 
 next question is, whether, in the events detailed in the statement of facts, and the evi- 
 dence, the money on the bottomry bond became due, and payable to'the lender? I 
 am of opinion that it did become due. The voyage was not completed from any inca- 
 pacity of the schooner to perform it; and in point of fact, she did, after being repaired, 
 return safely to the United States. The voyage was broken up by the master volun- 
 tarily, upon the ground, that the schooner was not worth repairing for the voyage, be- 
 cause the expense of the repairs would exceed her reasonable value, or what ought, 
 with reference to the interests of the owners, to be expended upon her, to enable her 
 to carry the cargo to the port of destination. I do not say, that tlie master acted un- 
 wisely or inijiroperly, under all tlic circumstances, in coming to this conclusion. Per- 
 haps it was exactly wliat the owners niiglit have done, if they had been personally 
 present. If tlie owners had so al)andoned the voyage, being personally present, because 
 their interest would have been injuriously affected by not so doing ; what ground could 
 there be to say, that tlie bottomry bond should not be paid 1 See also, Thomson v. 
 Eoyal Exch. Ass. Co., 1 M. & S. 30; The Dante, 2 W. Rob. 427; The Catherine, V 
 
 VOL. I. 35
 
 410 ON THE LAW OF SHIPPING. [bOOK I. 
 
 necessary to say in the bond, that the ship is to be delivered or 
 made over to no other use or purpose whatever, until payment 
 of the bond is made, for the law implies this.^ And where 
 there are no laches on the part of the lender, his lien will be up- 
 held even against a bond fide purchaser without notice.^ 
 
 If marine interest is requisite to a bottomry loan, it may be 
 presumed to be included in the principal sum.^ The bond 
 should describe sufficiently the risk which the lender assumes. 
 This is, generally, the loss of the ship by the perils of the sea; 
 and any such words as "the bond is gone if she does not arrive," 
 or "if she is lost," or "the money to be paid after her safe arrival," 
 are sufficient to indicate this. The risk must be such as justifies 
 maritime interest ; * and if the ship be lost by a peril, or from a 
 cause not enumerated or implied, the debt survives, even with 
 the maritime interest; as if the ship be lost through the miscon- 
 duct of the master or owner.^ 
 
 B. Of Bottomry Bonds made hy the Oicner. 
 
 Bottomry bonds are often made, in this country, by the owner, 
 in the home port.^ Nor is any necessity whatever requisite, as 
 
 Eng. L. & Eq. 679; The Elephanta, 9 Eng. L. & Eq. 553; Thorndike v. Stone, 11 
 Pick. 183; Wallis v. Cook, 10 Mass. 510. 
 i The Brig Draco, 2 Sumner, 157. 
 
 2 Wilmer v. The Smilax, 2 Pet. Adm. 295, note ; The Brig Draco, 2 Sumner, 157 ; 
 The Catherine, 1 Eng. L. & Eq. 679. See also the judgment of Mr. Justice Powell, 
 in Trantor v. Watson, 6 Mod. 11, 13. 
 
 3 The Mary,-1 Paine, C. C. 671. "This," however, Mr. Justice Woodbury remarks, 
 "makes the question of interest a nose of wax." Greely v. Smith, 3 Woodb. & M, 
 236, 257. 
 
 * See cases ante, p. 407, note 1. 
 
 5 See ante, p. 409, notes 2, 3, 4. 
 
 ^ Wihner v. Smilax, 2 Pet. Adm. 295, note; The Brig Draco, 2 Sumner, 157; 
 Thorndike v. Stone, 11 Pick. 183 ; Greeley v. Waterhouse, 19 Maine, 9. In The Duke 
 of Bedford, 2 Hagg. Adm. 294, the bond was given by the owner of the ship^ who was 
 on board, at a foreign port. The master was also on board and received the supplies as 
 necessary, but refused to sign the bond. A suit to dispossess the captain had pre- 
 viously been instituted. The court held, that the bond was valid. See also. The Bar- 
 bara, 4 Rob. Adm. 1 ;*The Mary, 1 Paine, C. C. 671. And if, in such a case, the 
 owner is also master, although he professes to contract as master, he confers the same 
 rights as if he gave the bond as owner. The Ship Panama, Olcott, Adm. 343.
 
 CH. XI.] CONTRACTS OF BOTTOMRY AXD OF RESPONDENTIA. 411 
 
 far as his own interest is concerned.^ He may make such a bond 
 hypothecating a vessel, before sailing on her first voyage, if 
 he pleases. It is then nothing more than a borrowing of money 
 at extra interest, the lender assuming an extra risk. Sometimes 
 this is in fact little more than nominal; the whole transaction 
 being substantially a legal loan for usurious interest with secu- 
 rity ; for a party may lend ten thousand dollars on a bottomry 
 for fifteen per cent, interest, when six per cen||is the legal inter- 
 est, and three per cent, the usual premium for insurance on that 
 voyage ; and as a lender on bottomry has an insurable interest,^ 
 he may, by expending three per cent, interest, insure the ship 
 and secure the payment of his loan at all events, and yet 
 receive his twelve per cent, net for the use of his money. It is 
 true that the uniform language of courts, both as to bottomry 
 and respondentia bonds, is, that if the transaction be colorable 
 only, and a mere pretence for getting usurious interest, it has 
 none of the privileges given to these bonds, but is like any other 
 loan on usury ;^ and this is a question for the jury. But there 
 is no precise limit nor measure to marine interest ; and in practice 
 the interest must be far beyond the risks to be affected by 
 the usury, as they would be measured by the mere rate of insur- 
 ance.^ 
 
 Bottomry bonds made abroad are generally made on the next 
 voyage of -the ship; which must be described with reasonable 
 accuracy, or as near as the master can, but need not be precisely 
 set forth." When made at home, by the owner, they are fre- 
 quently made on time, as for a year.^ 
 
 1 Greeley v. Waterhouse, 19 Maine, 9; The Mary, 1 Paine, C. C. 671 ; The Brig 
 Draco, 2 Sumner, 157. But see Greely v. Smith, 3 Woodh. & M. 236, 234. So of a 
 respondentia bond. Conard v. Atlantic Ins. Co., 1 Pet. 386; The Brig Bridgewater, 
 Olcott, Adm. 35 ; The Ship Panama, Olcott, Adm. 343. 
 
 2 1 Phil. Ins. § 300. 
 
 8 Tiiorndike v. Stone, 11 Pick. 187; Conard v. Atlantic Ins. Co., 1 Pet. 386, 437. 
 
 * See ante, p. 407, note 2. 
 
 6 And where the voyage is not under tlic direction of tlie party granting tlic liond, liut 
 is under tlic control of government, a bond is not invalid' because the voyage is not 
 described. The Jane, 1 Dods. 461. 
 
 Tiie Brig Draco, 2 Sumner, 157; Thorndike v. Stone, 11 Pick. 183; Bray i". 
 Bates, 9 Jlet. 237.
 
 412 ON THE LAW OF SHIPPING. [BOOK I. 
 
 C. Wfien the Master may make a Bottomry Bond. 
 
 Although an owner may make a bottomry bond anywhere, and 
 for any reason, the master can do so, only abroad and from ne- 
 cessity ; ^ his power in this respect being exactly analogous to 
 his power to sell ; excepting that he may be justified, as we have 
 already said, in giving a bottomry bond, by a less necessity than 
 is required to autlrorize his sale of the ship. And the power be- 
 longs to any one who is lawfully master of the ship, however 
 appointed ;^ as> where he is appointed by the agent of the own- 
 ers,^ So, if he is appointed by the consignees of the cargo.* In 
 one case where the captain was appointed by a foreign mer- 
 chant, and gave a bond to him, the bond was held to be valid.^ 
 And in another case, the same was held in respect to a bond 
 -given to the charterer by whom the master was appointed.'^ So, 
 too, the master of a transport, hired by government, and in the 
 national service, may bottom her.'^ And the master of a bellig- 
 erent ship that is in a foreign port by virtue of a cartel, may give 
 a bond, and this may be enforced in the courts of the country to 
 which the master is an enemy .^ Bat a bottomry bond on a 
 belligerent ship is discharged by the capture of the ship ; and 
 the courts of the captors will not enforce it as a subsisting 
 
 1 Sir ^Ym. Scott, in the case of The Gratitudine, 3 Rob. Adni. 240, 266, speaking 
 of the necessity which will authorize the borrowing of money on bottomry by the 
 master, says : " Necessity creates the law, it suj^ersedes rules ; and whatever is reasona- 
 ble and just in such cases, is likewise legal. See also, The Nelson, 1 Hagg. Adm. 
 169; The Rhadamanthe, 1 Dods. 201; The Gauntlet, 3 W. Rob. 82, and cases 
 injra. 
 
 2 The Orelia, 3 Hagg. Adm. 75 ; The Boston, 1 Blatchf. & H. Adm. 309. 
 
 3 The Kcnnersley Ciistle, 3 Hagg. Adm. 1. In this case it was doubtful whether 
 the master was appointed by the agent of the owner, or by the agent of the under- 
 writers, to whom the ship had been abandoned, or by both. The court were also 
 inclined to the opinion that if he had been appointed by the underwriters alone, the 
 bond would have been valid. 
 
 * The Alexander, 1 Dods. 278 ; The Rubicon, 3 Hagg. Adm. 9. 
 
 5 The Tartar, 1 Hagg. Adm. 1. See also, The Brig Ann C. Pratt, 1 Curtis, C. C. 
 340, 344, and ante, p. 387, n. 4. 
 
 ^ Breed v. The Ship Venus, U. S. D. C, Mass., 1803, Abbott on Shipping, 159, 
 n. 1. 
 
 ' The Jane, 1 Dods. 461. 
 
 8 Crawford v. The William Penn, Pet. C. C. 106, 3 Wash. C. C. 484.
 
 CH. XI.] CONTRACTS OF BOTTOMRY AND OF RESPONDENTIA. 413 
 
 claim even in favor of a subject of the capturing power.^ After 
 the master has ceased to act and another is appointed, he can- 
 not give a bond, since he is functus officio.^ 
 
 If a ship be captured and restored to the owners, it is a deten- 
 tion or interruption of the voyage, and not a loss of the ship; ^ 
 but if it be captured, condemned, and sold, and the proceeds 
 afterwards restored to the owner by decree, this is a loss of the 
 ship, and the owner holds the proceeds free from any claim of 
 the bond holder, on the bond ; ^ and if, as has been said, there is 
 no salvage in bottomry,^ it would be difficult to give him any 
 relief. But not only the justice of his claim, but some authori- 
 ties indicate, what we must think should be the law, that he has 
 such claim either by way of salvage, or in admiralty, on the 
 general principles of equity.^ 
 
 The necessity, though less than that requisite for a sale, must 
 still be a real and a sufficient necessity. Therefore a master 
 cannot hypothecate the ship for money borrowed for his own 
 wants." Nor can he as master pledge the freight for his own 
 
 1 The Tobago, 5 Rob. Adm. 218. 
 
 2 Walden v. Chamberlain, 3 AVash. C. C. 290. 
 
 ^ Joyce r. Williamson, 3 Doug. 164. This was an action on a bond which con- 
 tained a clause, that if the ship should be taken by the enemy, cast away, miscarry, or 
 be lost, before her safe arrival at New York, the bond should be void. Tiie sliip sailed 
 on her voyage, was captured, and afterwards retaken and carried to Ilalifox, where 
 part of the cargo was sold for salvage and repairs. The vessel afterwards arrived at 
 New York with the remainder of her cargo on board. The ship and freight were then 
 worth the sum in the bond, but not worth that sum together with what had been laid 
 cut in repairs. The bond was pronounced for. 
 
 * Appleton V. Crowninshield, 3 Mass. 443. 
 
 6 See post, p. 422. 
 
 ^ Appleton V. Crowninshield, 3 Mass. 443, 8 Slass. 340. In this case the vessel was 
 captured and condemned. On appeal the decree was reversed and restoration ordered ; 
 and afterwards the value of the vessel and freight, with interest, was awarded to the 
 owner. The court held that no action would lie on the bond, but intimated that an 
 action for money had and received would lie against the owner. Accordingly such an 
 action was brought, and the plaintiff recovered. 
 
 "> King V. Perry, 3 Salk. 23. The following case is related by Locccnius, lib. 2, 
 c. 6, § 12. The master of a ship being in a Spanish port, and having exposed the 
 ship to seizure by his neglect to comply with a particular regulation of the country, 
 entered into an agreement with a person who was supposed to possess sufficient influ- 
 ence to obtain the restitution of the ship, to pay him a very considerable sum with 
 maritime interest, if he should procure the restitution of the ship, and she should after- 
 wards return home in safety ; and for securing the payment, executed an instrument 
 in the nature of a bottomry bond. Bv the interest of the person with whom the agree- 
 
 35*
 
 414 ON THE LAW OF SHIPPING. [eOOK I. 
 
 use. Bat, it is otherwise, if at the same time he is master and 
 mortgagor in possession, and it is a question for the jury to 
 decide in which capacity he acted.^ And it must be the neces- 
 sity of the ship; for he cannot make a bottomry of the ship for 
 the benefit of the cargo.^ That is a sufficient necessity which 
 would induce an owner to do it if on the spot ; ^ and therefore the 
 master may hypothecate the vessel in a foreign country to ena- 
 ble him to return home, though the original voyage was broken 
 up by capture and the compulsory sale of the cargo.'* But this 
 necessity of judging whether the owner would do it, does not 
 exist if the owner himself can act or be consulted.^ It is said 
 that a master in a port of this country, may bottom his ship if 
 her home port is in another state.^ But this ruling cannot be 
 sustained ; for the master does not have the power of thus bind- 
 ing the ship to the payment of maritime interest, if the owner 
 can be consulted, whether he be in the same, or in a neighboring 
 state, or in another country. If the master be in the British 
 provinces, and the owner in the state of Maine, within a day's 
 sail or ride of him, the master can have no such power. It 
 must be a foreign port in the sense of a distant port ; ' this is 
 sufficient ; and it may therefore be the port of destination.^ 
 
 ment was made, the ship was restored, and afterwards returned home in safety ; and 
 he instituted a suit against the ship upon the instrument executed to him by the mas- 
 ter. It was held that neither the ship nor her owners were chargeable. See also, 
 Gibbs r. Sch. Texas, Crabbe, 236. 
 
 1 Keith V. Murdoch, 2 Wash. C. C. 297. 
 
 2 Fontaine v. Col. Ins. Co., 9 Johns. 29. 
 
 3 The Fortitude, 3 Sumner, 228, 246. 
 
 * Crawford v. The Wm. Penn, 3 Wash. C- C. 484. 
 
 ^ See ivfm, n. 7. 
 
 6 Selden i'. Hendrickson, 1 Brock. C. C. 396. The vessel in this case belonged to 
 Eichmond in Virginia, and the bond was given in New York. 
 
 ^ In a case of necessity, where it is impossible to communicate with the owners, the 
 master may give a bond, although the owners reside in tlie same country. La Ysabel, 
 1 Dods. 273. And in The Trident, 1 W. Kob. 29, where the owner had lived iu 
 Scotland, it was held that the master might give a bond at Plymouth, England, the 
 owner having died insolvent, and his personal representatives declining to interfere. 
 So the master may pledge the credit of the owners in a port of the country, in which 
 they reside, if no communication can be had with them. Arthur v. Barton, 6 M. & 
 W. 138 ; Robinson v. Lyall, 7 Price, 592. But not, if a delay for the purpose of 
 communication would work no injury. Johns v. Simons, 2 Q. B. 425; Stonehouse v. 
 
 8 Keade v. Comm. Ins. Co., 3 Johns. 352.
 
 en. XT.] CONTRACTS OP BOTTOMRY AND OF RESPONDENTIA. 415 
 
 The master, for the same reason, has no such power if he 
 have funds of the owner within his reach; or if he can borrow 
 
 Gent, 2 Q. B. 431, n. ; Bcldon v. Campbell, 6 Exch. 886, 6 Eng. L. & Eq. 473. In 
 The Rhadamantlic, 1 Dods. 201, Sir Wm. Scott was of opinion tiiat Cork was a foreign 
 port as respected England, though the point was not decided. And in The Barbara, 
 4 Rob. Adni. 1, Jersey was held a foreign port in regard to London. But these distinc- 
 tions are now done away with, and the only question is whether the owners could have 
 been consulted. Thus in Tiic Oriental, 3 W. Bob. 243, 2 Eng. L. & Eq. 546, the vessel 
 was at New York, and the owners at St. Johns, New Brunswick. There w.is a tele- 
 graph between the two places. The master gave a bond without consulting the own- 
 ers. Dr. Lushington held the bond was valid, but, on appeal,, the judgment was 
 reversed. Wallace v. Fielden, 7 Moore, P. C. 398. In the case of The Bonaparte, 
 3 AV. Rob. 298, 1 Eng. L. & Eq. 641, a bond was given by the consent of the owners of 
 the vessel on the ship, freight, and cargo. The shipper of the cargo was applied to, 
 but refused to advance any money. It did not appear that the owners of the cargo 
 had been notified. Dr. Lushington was of opinion that it was not necessary for the mas- 
 ter to consult the owners of the cargo, and pronounced for the bond. On appeal the 
 privy council remitted the case to allow evidence to be taken, as to what notice, if any, 
 had been given to the owners of the cargo. Wilkinson r. Wilson, 8 Moore, P. C. 
 4.59, 36 Eng. L. & Eq. 62. The law is stated by the court, on p. 473, and p. 70, of the 
 respective reports, as follows : " That it is an universal rule, that the master, if in a 
 state of distress, or pressure, before hypothecating the cargo, must communicate, or even 
 endeavor to communicate, with the owner of the cargo, has not been alleged, and is a 
 position tiiat could not be maintained ; but it may safely, both on authority and on prin- 
 ciple, be said, that in general it is his duty to do so, or it is his duty in general to at- 
 tempt to do so. If, according to the circumstances in which he is placed, it is reasona- 
 ble that he should, it was rational to expect that he might obtain an answer within a 
 time not inconvenient with reference to the circumstances of the case ; it must be taken, 
 therefore, upon authority and principle, that it is the duty of the master to do so, or at 
 least to make the attempt." On the case being sent back, furtlier evidence was taken ; 
 it appeared tiiat the British consul had written, on behalf of the master of the vessel 
 and his agent, to tiie consignees in England, infcn-ming them of the damage sustained 
 by the ship, but making no application for money, nor referring to the necessity for re- 
 pairs. The letter also requested instructions as to what should be done. No answer 
 was returned. Dr. Lusldnglon iield that under these circumstances the owners of the 
 cargo were bound by the bond. The Bonaparte, 20 Eng. L. & Eq. 649. On appeal his 
 decision was affirmed. 8 Moore, P. ('. 459, 483, 36 Eng. L. & Eq. 75. See also, gen- 
 erally. The Lochiel, 2 W. Rob. 34 ; The Wave, 4 Eng. L. & Eq. 589 ; Agricultural 
 Bank v. The Bark Jane, 19 La. 1. In The Nnova Loanesc, 22 Eng. L. & Eq. 623, a 
 bottomry bond was granted by the master at tiie port where the owner of the cargo, who 
 was also charterer of the sliip, resided. Advertisements for the loan were published. 
 This fact was known to the owner of the cargo, and he was also aware that the ship 
 was unscaworthy, and that the cargo had been laden and unladen while the ship was 
 in port. No direct communication, or application for advances, was made to him. 
 Held that the bond was invalid as far as his interest was affected. — It is true that in 
 the ca.se of The William and Emmeline, 1 Blatchf. & II. Adm. 66, 71, Mr. Justice Bctts 
 held that Charleston, Soutli Carolina, was a foreign port in rcs])cct to New York, yet 
 this case was decided in 1828, when a long time was required for communication be-
 
 416 ON THE LAW OF SHIPPING. [BOOK I. 
 
 the money on the personal credit of the owner ; or if a con- 
 signee be there with funds of the owner, or any agent of the 
 owner ; ^ of, it is said, if the master has funds of his own.^ If 
 the master, in a foreign port, has funds of his own, which he 
 wishes to use for a profitable mercantile purpose, it would be 
 hard to require him to lend them to the owner for mere common 
 interest, and yet there is no authority for permitting a master to 
 take a bottomry bond to himself, or to charge in any way 
 more than legal interest for the use of his money, whatever 
 may be the degree in which that falls below actual compensa- 
 tion. 
 
 The master is not bound to take the money on board 
 
 tween the two cities, and moreover, though a bond was given in the case, yet it was 
 informal, and tlic case was decided on the ground that repairs furnished in another 
 State constitute a lien on the ship. 
 
 1 Tunno v. Ship Mary, Bee, 120; Boreal v. The Golden Eose, id. 131 ; Putnam v. 
 Sch. Polly, id. 157 ; Sloan v. Ship A. E. I., id. 250 ; Forbes v. The Hannah, id. 348, 
 Hopk. 176; Canizares v. The Santissima Trinidad, Bee, 353, Hopk. 185; Rucher v. 
 Conyngham, 2 Pet. Adra. 295 ; Cupisino v. Perez, 2 Dall. 194; The Ship Lavinia v. 
 Barclay, 1 Wash. C. C. 49 ; The Ship Packet, 3 Mason, 255 ; Ross v. The Ship 
 Active, 2 Wash. C. C. 226 ; Walden v. Chamberlain, 3 Wash. C. C. 290 ; Patton v. 
 The Randolph, Gilpin, 457; The Nelson, 1 Hagg. Adm. 169; The Rhadamanthe, 
 1 Dods. 201 ; The Sydney Cove, 2 Dods. 1,7. In the case of The Virgin, 8 Pet. 538, 
 the court held that if the necessity for the supplies and advances is once made out, it is 
 incumbent upon the owners, who assert that they could have been obtained upon their 
 personal credit to establish that fact by competent proofs, imless it is apparent from 
 the circumstances of the case. It was also held that it was not enough to show that 
 there were funds at the port of distress, which ought to have been appropriated to the 
 use of the ship, and that the master was justified in giving a bond if he could not 
 obtain them, because, " the non-existence of funds, and the non-ability to get at them, 
 must, as to the master, be deemed to be precisely equal predicaments of distress." 
 
 - In the case of The Ship Packet, 3 Mason, 255, 263, Mr. Justice Stori/ said : " If the 
 master has money of his own on board, sufficient for the ship's necessities, it is by no 
 means certain, that he has a right in such a case to resort to the extraordinary meas- 
 ure of bottomry. In case of there being money of the owner of the ship on board, it 
 is very clear, that he cannot resort to bottomry. And although I would not absolutely 
 decide, that under no circumstances he could so resort, where he has sufficient money 
 of his own on board ; yet if he can, it must be in a case of a very peculiar character, 
 and such as ought to induce the court to uphold it from great public principles." la 
 Canizares v. The Santissima Trinidad, Bee, Adm. 353, the master had goods of 
 his own on board, and could also have procured money from the intendant at the port 
 of distress. Held, that he had no authority to give a bond. Same case on appeal, 
 Cupisino v. Perez, 2 Dall. 194. But if this latter element had been wanting, we think 
 that a bond given by him would be valid. See The William & Emmeline, 1 Blatchf. 
 & H. Adm. 66, 72.
 
 en. XI.] CONTRACTS OF BOTTOMRY AND OF RESPONDENTIA. 417 
 
 which belongs to the shippers, nor, perhaps, has he a right to do 
 this.i 
 
 It is said that he cannot bottom the ship if a part-owner, or 
 the agent of a part-owner, be present.^ But this may be doubted ; 
 and certainly there can be no such inflexible rule.^ The master 
 is the agent of all the owners. And the presence and refusal of 
 anyone or more, ought not, of itself , to deprive the master of 
 the power or relieve him from the duty of providing for the 
 interests of all. But in such a case, the necessity must doubtless 
 be particularly certain and pressing. 
 
 Nor can a master make this bond merely to secure former 
 debts of the owner ;^ but might, perhaps, if it were the only 
 
 1 In the Ship Packet, 3 Mason, 255, it was ohjeoted that the master should not have 
 given a bond, as he had specie dollars on board which belonged to some of the shippers. 
 Mr. Justice Stoiy said, p. 258 : " The general principle is, that he (the master) is 
 bound to act with a reasonable discretion. He is to get the necessary repairs done at 
 as'little sacrifice as is practicable. If he has money on board, and the use of that will 
 be the least sacrifice, he ought to resort to it in the first instance. But there may be 
 cases, in which the use of such money would be the greatest sacrifice that could be 
 made, and the whole objects of profit in the voyage might be thereby defeated. Sup- 
 pose a voyage to the East Indies or China, in which the principal outward property 
 on board is Spanish dollars, and a disaster happens on the first passage, requiring 
 repairs, the use of those dollars may be the most mischievous exercise of his discretion, 
 
 and destroy the hopes of the voyage In all these cases, therefore, much must be 
 
 left to the master's discretion, and he must exercise it conscientiously for the general 
 interest. If he acts borid Jide and with reasonable care, the rights of the parties are 
 bound up by his acts, although it should afterwards be found, that he had committed 
 an error in judgment, and might have acted more beneficially in another manner." 
 
 2 Patton V. The Pandolph, Gilpin, 457. See also, Selden i-. Hcndrickson, 1 Brock. 
 C. C. 396. Kent (3 Conim. 172) says, on the authority of Boulay Paty, Cours de 
 Droit Com. Mar. tome 2, p. 271, that if only a minority of the owners are present, the 
 captain's power remains good. 
 
 ^ In some cases not only has the bond been pronounced valid, where there was at the 
 time an agent at the place, but it has been also held, that a master may give a bond to 
 the agent himself. Sec post, p. 425, n. 2. 
 
 ^ Hurry v. Ship John and Alice, 1 Wash. C. C. 293; Walden v. Chamberlain, 3 
 Wash. C. C. 290 ; Clark v. Laidlaw, 4 Hoi). La. 345 ; The Aurora, 1 AVhcat. 96 ; 
 The Lochiel, 2 W. Rob. 34; The Osmanli, 3 W. Kob. 198; Smith i-. Gould, 4 
 Moore, P. C. 21. But sec The Mary Ann, 10 Jurist, 253, 4 Notes of Cases, 376, 390. 
 In the case of The Ocean, 10 Jur. 504, 4 Notes of Cases, 56G, A bought up several 
 sim[)lc contract debts, due on account of a certain vessel. He afterwards advanced 
 money on bottomr\' on the same ship, and repaid himself out of the money so advanced 
 the sums wliich he had paid for the contract debts. Held, that as to this jiart of the 
 transaction the bond was void. In Cohen v. Sch. Amanda, Crabbe, 277, the bond wsis 
 given to a party on condition that he should assume the debts which the vessel owed. 
 No question seems to have been made as to the validity of such a bond. Payment 
 was contested on the ground that the debts had not been paid. The court held, that
 
 413 ON THE LAW OF SHIPPING. [book I. 
 
 way to liberate the ship from arrest and sale for those debts.^ 
 And if a bond, given by the owner, includes other and former 
 debts, those debts are merged in the bond, and are discharged 
 by whatever disciiarges the bond, and no other or former secu- 
 rities on those debts are enforceable by themselves, or available 
 in any way excepting through the bond.^ 
 
 The master may give a bond for the amount due in good faith 
 for compensation for services rendered in a foreign port by a 
 consul of the country, to which the ship belongs.^ 
 
 D. Of the Duty and Obligation of the Lender on Bottomry. 
 
 As there must be a necessity to justify the master in making 
 the bond, so the lender must see to it, that this necessity exists.* 
 
 the defence should be clearly made out to contradict the prima facie presumption af- 
 forded by the bond. 
 
 1 See post, p. 423, n. 2. 
 
 - Bray v. Bates, 9 Met. 237. 
 
 3 The Zodiac, 1 Hagg. Adm. 320. See also. The Cynthia, 20 Eng. L. & Eq. 623. 
 
 * Putnam v. Schooner Polly, Bee, Adm. 157 ; Gibbs v. Sch. Texas, Crabbe, 236; 
 The Aurora, 1 Wheat. 96 ; The Boston, 1 Blatchf. & H. Adm. 309, 324 ; The Orelia, 3 
 Hagg. Adm. 75, 84 ; Heathom v. Darling, 1 Moore, P. C. 5 ; The Royal Stuart, 33 
 Eng. L. & Eq. 602. In Walden v. Chamberlain, 3 Wash. C. C. 290, it was held, that the 
 lender on bottomry ought always to prove the necessity for the advances, and that they 
 were made to enable the master to prosecute his voyage, and that the necessity for such 
 advances, or that they were made on the credit of the vessel, was never to be presumed. 
 In Scares v. Rahn, 3 Moore, P. C. 1, s. c. The Prince of Saxe Cobourg, 3 Hagg. 
 Adm. 387, the bond was given by the master, who was also a part-owner. The agent 
 of the charterer, and sole owner of the cargo, was ready and willing to advance money. 
 The bond holders were not aware of this, but they had "made no inquiries in regard to 
 it. The bond was pronounced invalid though the holders were the lowest bidders at 
 the auction advertised by the master. The court said : " If the foreign merchant, after 
 due inquiry, sh<ill have reasonable ground for concluding that the repairs are necessary, 
 and that the money cannot be raised on personal credit, then his security on the ship 
 and cargo shall not be impeached, or invalidated, because it might happen, that not- 
 withstanding his reasonable and bond Jicle inquiries, the repairs were not necessary, or 
 the money might have been had on personal credit." But, although he is bound to 
 show a reasonable case of unprovided necessity for the advance, yet he is not bound to 
 inquire into the expediency of incurring the expense of the repairs with reference to 
 the interest of the owner. Duncan v. Benson, 1 Exch. 537, 555 ; The Vibilia, 1 W. Rob. 
 1, 10. In the case of The Brig Bridgewater, Olcott, Adm. 35, it was held, that in an 
 action on a bond, the production and proof of the execution of it will not entitle the 
 holder to a decree in his favor ; but he must show that a necessity existed for the ex- 
 penditures, and he should exhibit an account of the items of expenses, etc. See also, 
 Clark V. Laidlaw, 4 Rob. La. 345 ; The William and Emmeline, 1 Blatchf. & H. Adm. 
 66, 76; Thomas v. Osborn, 19 How. 22, 31, ante, p. 385, n. 3.
 
 en. XI.] CONTRACTS OF BOTTOMRY AND OF RESPONDENTIA. 419 
 
 Probably the same rule would be applied as in the sale of a ship, 
 and if a sufficient necessity seemed to the lender to exist, after 
 all reasonable precaution and inquiry on his part, it would be 
 enough ; although in fact he were mistaken.^ If he connives in 
 any way at any fraud of the master, this avoids the bond in 
 toto, nor has he any lien on the ship for the amount actually 
 advanced ; ^ but the fraud of the master or borrower docs not 
 have this effect if the lender were neither participant in, nor conu- 
 sant of it;^ nor is the lender bound to see that the .master 
 actually applies the funds thus raised to the ship's necessities.^ 
 
 If the owner resists payment of the bond on the ground of the 
 fraud of the lender, or because the master had, within his reach, 
 either the funds or a sufficient' personal credit of the owner, the 
 onus is upon him to prove this ; and there is even a presumption 
 in favor of the lender, that he did make the proper inquiries and 
 was reasonably satisfied of the necessity.^ But it seems that 
 the master is not a competent witness for the libellant, to prove 
 the necessity of repairs ; because a decree for the libellant on 
 this ground, might be used by the master in a suit against him 
 by the owner for making unnecessary repairs.^ If the lender 
 is in debt to the owner of the ship, he is bound to apply the 
 amount due to the necessity of the ship, and cannot, by ad- 
 vancing it, create an independent claim against the owner, and 
 bind the ship to this with maritime interest.'^ 
 
 1 The Ship Fortitude, 3 Sumner, 228, 249. See also Scares v. Rahn, 3 Moore, P. C. 1. 
 
 2 The Nelson, 1 Hagg. Adm. 1G9, 176 ; The Tartar, id. 1, U ; The Brig Ann C. 
 Pratt, 1 Curtis, C. C. 340; s. c. affirmed on appeal, Carrington i'. Pratt, 18 IIow. 63. 
 
 3 Atlantic Ins. Co. v. Conard, 4 Wash. C. C. 662, 1 Pet. 386. 
 
 * Scarborough v. Lyrus, Latch, 252, Noy, 9.5, 14 Vin. Ab. Hyph. (A.) pi. 2; The 
 Ship Fortitude, 3 Sumner, 228 ; Conard v. Atlantic Ins. Co., 1 Pet. 386, 437 ; The 
 Virgin, 8 Pet. 538, 553 ; The Orclia, 3 Hagg. Adm. 75, 84 ; The Jane, 1 Dods. 461, 
 464 ; The Royal Stuart, 33 Eng. L. & Eq. 602. 
 
 B The Ship Fortitude, 3 Sumner, 228; The Virgin, 8 Pet. 538; The Duke of 'Bed- 
 ford, 2 Ilagg. Adm. 294, .300; The Vibilia, 1 "W. Rob. 1, 5 ; The Mary Ann, 10 Jur. 
 253, 4 Notes of Cases, 376. 
 
 6 The Ship Fortitude, 3 Sumner, 228. But see the further remarks of Mr. Justice 
 Story, on this point, in the same case, p. 264; and Furniss v. The Brig Magoun, 
 Olcott, Adm. 55, 60. In this case Mr. Justice Bctts held, that he was competent, 
 especially if released. Sec also, Evans v. Williams, 7 T. R. 481, note; Rocher v. 
 Busher, 1 Stark. 27 ; Mihvard v. Hallett, 2 Caines, 77. 
 
 '' Ruchcr V. Conyngham, 2 Pet. Adm. 295 ; The Aurora, 1 Wheat. 96 ; Iluixy v. 
 The Ship John and Alice, 1 Wash. C. C. 293; The Ilebe, 2 W. Rob. 146.
 
 420 ON THE LAW OF SHIPPING. [bOOK I. 
 
 If liic k'lider, from improper motives, connives with the master 
 to send the ship on a new voyage, not authorized by the owner, 
 this is a fraud which will defeat his bottomry bond.^ But the 
 power of the master is not limited to necessaries to complete his 
 original voyage. He may thus raise money to perform any voy- 
 age he is authorized by law to undertake, if there be no collusion 
 between him and the lender.''^ 
 
 E. Wlien Additional Seturily may he given to the Lender. 
 
 It seems to be settled that the lender on bottomry may take 
 other and additional securities for his debt, provided these securi- 
 ties are also discharged by any thing which discharges the bond. 
 Thus they will only make the repayment more certain if the ship 
 arrives, but will not give any claim to the money if the ship does 
 not arrive.^ This ruling seems to be inconsistent with what is 
 sometimes said, that a bottomry bond cannot give, and never 
 does give, any claim against the owner personally.* Practically 
 
 1 The Virgin, 8 Pet. 538 ; Tlie Kcliance, 3 Hagg. Adm. 66. 
 
 2 The Virgin, 8 Pet. 538, 552 ; The Hunter, Ware, 249, 253. See also, The Tartar, 
 1 Hagg. Adm. 1 ; The Marv Ann, 4 Notes of Cases, 376, 381, 10 Jur. 253. In The 
 Reliance, 3 Hagg. Adm. 66, the ship was freighted from London to Calcutta and back. 
 The agents there, upon wliom the master had a limited credit, and which he had ex- 
 hausted, induced the master to undertake a series of voyages in defiance of the owner's 
 instructions. The bond was given for advances made on one of these voyages. Held, 
 that it was void, for if a necessity existed, it arose from the conduct of the parties iu 
 whose favor it was given. 
 
 3 The Jane, 1 Dods. 461, 466 ; The Tartar, 1 Hagg. Adm. 1 ; The Nelson, 1 Hagg. 
 Adm. 169, 179 ; The Kennersley Castle, 3 Hagg. Adm. 1 ; The St. Catherine, 3 Hagg. 
 Adm. 250; The Emancipation, 1 W. Rob. 124, 129; The Ariadne, 1 W. Rob. 411, 
 421 ; The Lord Cochrane, 2 W. Rob. 320 ; The Hunter, Ware, 249 ; The Sch. Zephyr, 
 3 Mason, 341 ; Leland v. The Ship Medora, 2 Woodb. & M. 92, 100 ; Grecly v. Smith, 
 3 Woodb. & M. 236 ; The Brig Atlantic, 1 Newb. Adm. 514. So if property is mort- 
 gaged to secure a bond, the mortgage is defeated by whatever avoids the bond. Thorn- 
 dike r. Stone, 11 Pick. 183 ; Bray v. Bates, 9 Met. 237. 
 
 * Mr. Justice Story, in the case of The Virgin, 8 Peters, 538, 554, stated the law as 
 follows : " In England and America the established doctrine is, tiiat the owners are not 
 ■personally bound except to the extent of the fund pledged, which has come into their 
 hands. To this extent, indeed, they may correctly be said to be personally bound ; for 
 they cannot subtract the fund, and refuse to apply it to discharge the debt. But in 
 that case the proceeding against them is rather in the character of possessors of the 
 thing pledged, than strictly as owners. In the present case, the value of the ship, the 
 only fund out of which payment can be made, falls far short of a full payment of the
 
 en. XI.] CONTRACTS OF BOTTOMRY AND OF RESPONDENTIA. 421 
 
 it may not often give this claim, because there is the ship, which 
 is ample security ; and if the ship be not there and that security 
 is lost, then the debt is paid, or, at least, the bond is discharged 
 by that loss. This question is not without its difficulties, nor are 
 we much aided in reference to it, by adjudication. It would seem, 
 however, that by the ordinary bond of bottomry, the owners are 
 not personally held. That is, they are usually so written as to 
 confine the lender to the ship in any event, giving the owner the 
 right to abandon the ship to the lender, on its safe arrival, and 
 to exempt himself from further responsibility. We do not know 
 that the parties might not make a diflerent bargain ; but the 
 rule of the Supreme Court of the United States seems to con- 
 fine the claim to the property. ^ 
 
 If a master destroys a ship, or if an owner causes it to be 
 destroyed, there would then be a remedy against the wrongdoer 
 personally ; and so there would be, perhaps, whenever by the fault 
 of the master or owner, the lender lost the security of the ship.^ 
 
 amount due upon the bottomry bond. But this is the misfortune of the lender, and 
 not the fault of the owners. They are not to be made jjersonally responsible for the act 
 of .the master, because the fund has turned out to be inadequate ; since by our law he 
 had no authority by a bottomry bond to pledge the ship, and also the personal respon- 
 sibility of the owners. The consequence is, that the loss, ultra the amount of the fund 
 pledged, must be borne by the libellant." See also, Cupisino v. Perez, 2 Dall. 194 ; 
 The Ship Fortitude, 3 Sumner, 228, 230; Johnson i'. Shippen, 1 Salk. 35, 2 Ld. 
 Eaym. 982; Benson v. Duncan, 3 Exch. G44, 656; Stainbank r. Fenning, 11 C. B. 
 51,6 Eng. L. & Eq. 412; The Tartar, 1 Hagg. Adm. 1, 13; The Nelson, 1 Hagg. 
 Adm. 169, 176. But sec Grcely v. Smith, 3 Woodb. & M. 236, 249. 
 
 ^ The eighteenth Rule of Practice in the Admiralty, prescribed by the Supreme 
 Court, is as follows : " In all suits on bottomry bonds, properly so called, the suit 
 shall be in rem only, against the property hypothecated, or the proceeds of the 
 property, in whosoever hands the same may be found, unless the master has, with- 
 out authority, given the bottomry bond, or by his fraud or misconduct, has avoided 
 the same, or has subtracted tlie property, or unless the owner has, by his own miscon- 
 duct or wrong, lost or subtracted the property, in wliicli latter cases the suit tnay be i/i 
 personam against the wrongdoer." If the voyage is put an end to by the fraudulent 
 act of the master, it would seem, therefore, that if no proceeds of the ship or cargo can 
 be got at, the only remedy is against the master. See Tiie Brig Ann C. Pratt, 1 
 Curtis, 351, per Curtis, J. Although, if the owner by his own act prevents the ship 
 from arriving, then he is personally liable, as has been already said. 
 
 " We are not aware of any cases which would lead to the conclusion that an action 
 against the owner can be sustained unless distinctly for his own wrong doing. The 
 Elephanta, 9 Eng. L. & Eq. 553, is au important case on this point. There the bond 
 was given on ship, freight, and cargo, and was not to be put in force in case the ship 
 and her cargo should be lost, or should miscarry, or be cast away on the voyage. The 
 VOL. I. 36
 
 422 ON THE LAW OF SHIPPING. [bOOK I. 
 
 If the owner chooses to sell a wrecked or injured ship because 
 her repairs will cost more than she will be worth, he may, by- 
 abandonment, make this a total loss against insurers; but not 
 against a bottomry bond holder ; for here there is no abandon- 
 ment.^ Nor, says Mansfield, is there any salvage or average 
 upon a bottomry bond.^ But the parties may stipulate that the 
 bond holder shall be liable to contribute in general average.^ 
 And it is now very common to provide that he shall be liable 
 both for average and salvage. In such a case he contributes 
 only on the value of the property hypothecated without the 
 addition of maritime interest,^ and he is entitled to contribution 
 and to salvage. 
 
 V. Of a Bottomry Bond for Supplies or Repairs. 
 
 If the master order the supplies and they are rendered, and 
 the repairs made, and the bottomry bond given afterwards, this 
 bond is good if it was originally intended to furnish the supplies 
 on the credit of the ship, and to secure this by a bottomry 
 bond;^ but if the original purpose and understanding were to 
 
 ship did not arrive at her port of destination, but was abandoned as for a total loss at 
 Algoa Bay, wliere part of the cargo was sold, and the proceeds brought to England, 
 and part put into another ship, and also brought to England. It did not appear that 
 the ship could not be repaired. The bond was enforced against the proceeds of the 
 ship, the cargo which had been sold, and against that transshipped. See also. Pope v. 
 Nickerson, 3 Story, 465. 
 
 1 Thomson v. Royal Exch. Ass. Co., 1 M. & S. 30 ; The Elephanta, 9 Eng. L. & 
 Eq. 553; The Dante, 2 W. Rob. 427 ; Ins. Co. of Penn. v. Duval, 8 S. & R. 138; 
 Pope V. Nickerson, 3 Story, 465. 
 
 2 Joyce V. Williamson, 3 Doug. 164. See also, Walpole v. Ewer, Park, Ins. 565, 
 per Lord Kenyon, C. J. ; Robertson v. United Ins. Co., 2 Johns. Cas. 250, 252, per 
 Kent, J. By tlie ordinance of Hamburg the lender does not contribute to general aver- 
 age. Tit. 8, art. 2; 2 Magens, No. 931. In France the law is the other way. Code 
 de Commerce, n. 141 ; Le Guidon, c. 19, a. 5. So in Denmark. Walpole v. Ewer, 
 Park, Ins. 565. 
 
 3 Ins. Co. of Penn. v. Duval, 8 S. & R. 138. 
 
 * Gibson v. Philadelphia Ins. Co., 1 Binn. 405. 
 
 6 The Virgin, 8 Pet. 551, 552; La Ysabel, 1 Dods. 273, 276; The Augusta, 1 
 Dods. 283 ; The Alexander, 1 Dods. 278, 280 ; The St. Catherine, 3 Hagg. Adm. 
 250 ; The Rubicon, 3 Hagg. Adm. 9 ; Eurniss v. Brig Magoun, Olcott, Adm. 55, 63 ; 
 The Ship Panama, Olcott, Adm. 343, 350. In the case of The Vibilia, 1 W. Rob. 1, 
 it was held that, where advances were made on the personal credit of the master, or 
 owners, and a bond subsequently given, the bond was void, but that where advances
 
 CH. XI.] CONTRACTS OF BOTTOMRY AND OF RESPONDENTIA. 423 
 
 furnish them on the personal credit of the master, or of the 
 owner, either or both, without reference to the ship, it would 
 seem to be settled that the bargain cannot be changed and a 
 bottomry bond given for this existing debt with extra interest.^ 
 If, however, the ship should be held in the foreign port for this 
 debt, and there was no way of liberating her, but by this bot- 
 tomry, we should say that it would be valid, if made in good 
 faith.2 So we hold, generally, that if the liberation of the ship 
 
 had been made, without direct evidence as to any original understanding, or contract, 
 and followed by a bond, the law presumed that a bond was contemplated in the first 
 instance. In the case of The Trident, 1 W. Rob. 29, on the arrival of the vessel at the 
 port of distress, it was necessary to defray certain minor expenses, such as pilotage dues, 
 etc. These were paid by a firm there without any contemplation of a bottomry bond. 
 Subsequently, further expenses being required, the same parties were applied to, but 
 refused to advance more money unless a bond was given. This was done for the 
 whole amount, including the sums first advanced. The bond was held valid in toto. 
 See also, Smith v. Gould, 4 Moore, P. C. 21. In The Gauntlet, 3 W. Rob. 82, when 
 the vessel arrived at the intermediate port the crew were in a state of mutiny, and the 
 master dispossessed of his command. The authorities of the port took the master and 
 crew on shore, and kept them in close confinement. It was held that a bond given for 
 the expenses incurred by a person employed by the British vice-consul to investigate 
 into the mutiny, and reinvest the master in his command, was valid, although no men- 
 tion was made of a bond at the outset of the inquiry, and the bond was taken im- 
 mediately before the vessel sailed from the port. The court said : " In the course of 
 the argument it was pressed upon the court, that when Mr. Jeffries fii-st stepped for- 
 ward to render his assistance, there was no express mention that he was to be reim- 
 bursed by a bond of bottomry. I do not think that this fact, under the peculiar cir- 
 cumstances of the case, can invalidate the subsequent bottomry transaction. It is very 
 true, that upon general principles, where work has been done, or advances made upon 
 personal security in the first instance, tlie party doing the work, or making the 
 advances, is not at liberty to turn round upon the owners, and cover himself by exact- 
 ing a bond of bottomry from the master ; but what is the case here ? The expenses 
 incurred by this vessel, and for which this bond was given, were incurred when the 
 master was out of possession of the ship, and when he was incompetent to take 
 charge of her, or to do any thing in her behalf." 
 
 1 The Hunter, Ware, 249 ; Sloan v. Ship A. E. I., Bee, Adm. 250 ; Rucher v. 
 Conyngham, 2 Pet. Adm. 295; The Augusta, 1 Dods. 283 ; The Hero, 2 Dods. 139, 
 147 ; The Ilerscy, 3 Hagg. Adm. 404, athrmcd Gore i-. Gardiner, 3 Moore, P. C. 79 ; 
 The Wave, 4 Eng. L. & Eq. 589. See also. The Ariadne, 1 W. Rob. 411, 419. 
 
 " In The Aurora, 1 Wheat. 96, Mr. Justice Story said : " It is undoubtedly true, 
 that material men, and others, who furnish supplies to a foreign ship, have a lien on 
 the ship, and may proceed in the admiralty to enforce that right. And it must be 
 admitted that, in such a case, a bond fide creditor, who advances his money to relieve 
 the ship from an actual arrest on account of such debts, may stipulate for a bottomry 
 interest, and the necessity of the occasion will justify the master in giving it, if he 
 have no other sufficient funds, or credit, to redeem the ship from such arrest." The 
 point, however, was not decided. In The Vibilia, 1 W. Rob. 1, it was held that the
 
 424 ON THE LAW OF SHIPPING. [bOOK I. 
 
 from arrest for debt, is a good cause for bottomry, yet if the 
 attaching creditor is himself the obligee, the bond is invalid.' 
 
 fact, tliat a lien existed on tlie sliip by the law of the country in which the bond was 
 given, was an* important ingredient, and furnished a presumption in favor of bottomry, 
 and against personal credit. But we are not inclined to carry the law further than this, 
 and to say that in all cases the arrest of the ship for debt would authorize the giving 
 of a bond by the master. In The Aurora, above cited, it was held that a mere threat 
 to arrest the ship for a preexisting debt, would not justify the master in giving a bond. 
 See also, The Boston, 1 Blatchf. & H. Adm. 309, 324. It is true that in the case of Smith 
 V. Gould, 4 Moore, P. C. 21, Lord Campbell used language which is inconsistent with 
 this view of the case. The vessel, bound for New York, had a very long passage, and 
 having got out of water, the persons on board used some cases of porter belonging to 
 a freighter. On arrival the consignee threatened to sue the ship for the non-delivery. 
 The cajjtain raised money, to pay for the damage done, by the bond on which this suit 
 was brou<rht. It did not appear in evidence whether by the laws of New York the 
 ship could have been arrested, and the bond was pronounced to be void. But Lord 
 Campbell expressed his opinion that a master might hypothecate his vessel in any case 
 where it might be arrested, and sold for a demand for which the owner would be liable. 
 The whole subject was discussed at great length by Dr. Lushiu(jtcn, in the case of The 
 Osmanli, 3 W. Kob. 198, and a conclusion contrary to that of Mr. Justice Stonj ar- 
 rived at. The Osmanli was arrested for debts due from her owner, on account of 
 advances made for The Osmanli, and for other ships of the same owner, on former 
 voyages. The arrest was legal in all respects, though of course the ultimate conse- 
 quences of it could not be determined. The captain borrowed money on bottomry to 
 release the vessel, the lender knowing it was to be so applied. The bond was held to 
 be invalid. In The Augusta, 1 Dods. 283, 288, Lord Stoicell remarked : " It has been 
 said that the party might, by the law of Eussia, have detained this ship till the money 
 was repaid ; but I do not think that circumstance alone will be sufficient to convert 
 this into a case of hypothecation. Ships might, in all cases, be detained on the same 
 ground by the general law of Europe, and if the position, which has been laid down, 
 were to be supported, it would go the length of turning every case into a case of hy- 
 pothecation, or at least there would be a necessity of inquiring, in every case, into the 
 state of the foreign law." However the law may be in regard to the arrest of the sliip, 
 it is clear that the fact of the master's being arrested will not be sufficient to authorize 
 the giving of a bond, to raise money to procure his release, although he was arrested 
 for a debt contracted for the vessel in his capacity of master. Smith v. Gould, 4 
 Moore, P. C. 21. See also. The Aurora, 1 Wheat. 96. It is obvious that these ques- 
 tions can only arise in regard to old debts. For if advances are made to the ship, 
 they are either on the credit of the ship, or of the master or owner. If the latter, the 
 ship could not be legally arrested, and if illegally, it is clear that no necessity would 
 exist for tlie giving of a bond. If they are made on the credit of the ship, we have 
 seen that a bond is valid, although given subsequently. The case of The Osmanli 
 proceeds on the ground that as the master has no right to bottom for old debts, so he 
 has not the right, when the ship is arrested for those debts. 
 
 1 Thus Mr. Justice Story in the case of The Aurora, 1 Wheat. 96, 105, said : " Nor does 
 it bv any means follow, because a debt sought to be enforced by an arrest of the ship 
 miffht uphold an hypothecation in favor of a third person, that a general creditor 
 would be entitled to acquire a like interest. It would seem against the policy of the 
 law to permit a party, in this manner, to obtain advantages from his contract for
 
 en. XI.] CONTRACTS OF BOTTOMRY AND OP RESPONDENTIA. 425 
 
 G. Of a second Bottomry Bond. 
 
 If a master in a foreign port bottom his vessel, and then go 
 to another port and make a new bottomry, the funds necessary 
 to pay off the former bottomry may enter into the new one. 
 But then the holders of the second bond will stand as the 
 assignees of the first ; so far at least, that if the first bond was 
 not good because not necessary, or for any fraud in the lender, 
 the second bond will not be good for so much as paid off the 
 first bond, although the second bond holder advanced the money 
 in good faith.i 
 
 H. To whom a Bottomry Bond may be made. 
 
 "Whether a bottomry bond may be given to a consignee of the 
 ship, or to any party holding to the ship-owner the relation of 
 agent to principal, has been much controverted. Upon the 
 whole, however, we are decidedly of opinion, both from the 
 reason and justice of the case, and from the authorities, that 
 such a bond may be valid.^ Undoubtedly it would come into 
 
 which he had not originally stipulated. It would hold out temptations to fraud and 
 imposition, and enable creditors to practise gross oppressions, against which even the 
 vigilance and good faith of an intelligent master might not always be a sufficient safe- 
 guard in a foreign country." 
 
 1 Dobson V. Lyall, 8 Jur. 969 ; Walden v. Chamberlain, 3 Wash. C. C. 290 ; The 
 Aurora, 1 Wheat. 96. See also, Conard v. Atlantic Ins. Co., 1 Pet. 436, where the 
 loan was applied in discharge of a prior loan. Mr. Justice Story said : " In our 
 judgment, that makes no difference, as to the legal rights of the parties. The bor- 
 rower had a right to apply the loan in any m!\nner he pleased, and the mode of its 
 application, if it be otherwise bond fide and legal, does not change the posture of the 
 rights of the lender." This was a case of a bond given by the owntr of the cargo. 
 So in Greeley r. Waterhouse, 19 Maine, 9, it was licld that where a bottomry bond is 
 given by an owner to secure an old debt, if that was to be discharged to the extent of 
 the bond, the bond might be regarded as a new loan on bottomry, but not where the 
 bond was intended merely as a collateral security for the old debt. In Merwin v. 
 Shailer, 16 Conn. 489, the vessel put into Charleston for repairs. The master bor- 
 rowed a sum of money on bottomry from A. Subsequently, another master was ap- 
 pointed who borrowed an equal sum from B, and took up the first bond. The court 
 held that the owners were not liable for this last, such change of responsibilities not 
 growing out of the necessities of the voyage, or the safety of the vessel. 
 
 ^ If the consignee has funds in his hands belonging or due to the owners of the ves- 
 sel, it is well settled that he cannot lend his own money on bottomry. Hurry v. The 
 
 36*
 
 426 ON THE LAW OF SHIPPING. [bOOK I. 
 
 court, under circumstances which, if not exciting suspicion, 
 should at least call for unusual care and vigilance in ascertain- 
 
 Ship John & Alice, 1 "Wash. C. C. 293 ; The Ship Lavinia v. Barclay, 1 Wash. C. C. 
 49 ; Ross v. The Ship Active, 2 "Wash. C. C. 226 ; Rcade v. Commercial Ins. Co., 3 
 Johns. 352. It is true that in the case of Liebart v. The Ship Emperor, Bee, Adm. 
 339, 344, the bond was given to consignees, and pronounced invalid, and that on 
 appeal the court said : " No authority is shown, and none can be shown, because none 
 ought to be, that an hypothecation can be made to a consignee : great mischiefs might 
 arise if captains could hypothecate to consignees." But these remarks arc to a great 
 degree obitei-, for there were special circumstances in the case which were relied on, 
 which would have doubtless rendered the bond invalid, even if it had been given to a 
 stranger. That a bond may be given to a consignee there can be no doubt. See The 
 Ship Lavinia v. Barclay, 1 Wash. C. C. 49 ; Ross v. Ship Active, 2 Wash. C. C. 
 226. In Rucher v. Conyngham, 2 Pet. Adm. 307, the court said : " The facts of this 
 case, in a great degree, if not entirely, supersede the necessity of discussing the ques- 
 tion of the propriety of a consignee taking a bottomry bond from the master, in virtue 
 of the power given him merely as master. I will only say, that in general, I think 
 there is a legal impropriety and invalidity in such bonds. The practice may lead to 
 abuses and collusions, to charge the owner with unwarrantable and unnecessary usu- 
 rious premiums. But I will not say that there may not be cases, where the consignee 
 is not bound, more than any other lender, to advance for repairs, without taking the 
 ship as security for a loan on maritime interest. A consignee not in the habit of deal- 
 ing with or crediting an owner, and not having any goods, funds, or means of security 
 at the time, seems not under any obligation to risk his property, without the usual and 
 adequate compensation and security." In England, in the case of The Alexander, 1 
 Dods. 278, a bond given to the consignees of the cargo was pronounced valid. So in 
 The Nelson, 1 Hagg. Adm. 169, where it was given to the consignee of the cargo, and 
 the agent of the cliarterer, the consignee of the ship being at the port, but refusing to 
 advance funds. See also. The Lord Cochrane, 2 W. Rob. 320. Lord Stowell, in the 
 case of The Hero, 2 Dods. 139, 144, states the law as follows : " I will not take upon 
 myself to lay it down as an universal proposition, that an agent may not, under any 
 circumstances, take the security of a bottomry bond. Cases may possibly arise in 
 which an agent may be justified in so doing. It can be no part of his duty to advance 
 money without a fair expectation of being reimbursed, and if he finds it unsafe to 
 extend credit to his employers beyond certain reasonable limits, he may then surely be 
 at liberty to hold hard, and to say, I. give up the character of agent, and as any other 
 merchant might, to lend his money upon bond, to secure its payment, with maritime 
 interest. If in such a case, he gives fair notice that he will not make any further ad- 
 vances as agent, and affords the master an opportunity of trying to get money else- 
 wliere, and the master is unable to do so, but is obliged to come back to him for a 
 supply, then he is fairly at liberty, like any other merchant, to advance the money on a 
 security that is more satisfactory to himself. I will not say that the case might not go 
 further. If the agent had given credit for all the disbursements of the ship, and found, 
 contrary to his expectations, that they amounted to more than he calculated, and went 
 beyond any advances which he might reasonably be called upon to make on the mere 
 personal credit of his employers, and if there v/as no time to look to other quarters for 
 assistance, he might possibly be justified in resorting to this species of security, giving 
 the earliest notice of the necessity under which he acted. Under such circumstances 
 he might not, perhaps, be out of the reach of the protection which a bottomry bond
 
 CH. XI.] CONTRACTS OF BOTTOMRY AND OF RESPONDENTIA. 427 
 
 ing that there was a sufficient necessity for the loan, and entire 
 good faith in the transaction. If these are found to exist, then 
 we must say that such a bond may be valid, or that a con- 
 signee must advance his own funds without the interest or 
 security any other person would be entitled to, for which there 
 is no law, or else that a consignee who is willing to save a 
 ship on fair terms, must let her perish, because he cannot be 
 treated as well as a stranger. Perhaps it should be shown that 
 the master, or other agent, could not raise money on the same 
 terms from another party ; and, with better reason, the con- 
 signee might lose his remedy on the bond if it could be shown 
 that the funds might have been raised on better terms from 
 another. He should be held to all the strict accountability 
 of an agent; ^ but if every thing which good faith could require 
 
 would afford him." And Dr. Lushington, in the case of The Oriental, 3 W. Rob. 243, 
 2 Eng. L. & Eq. 546, uses language no less strong. He says : " That an agent cannot, 
 under any circumstances, take a bond of bottomry upon the vessel in whose service 
 he is employed, is a proposition which cannot, I conceive, be universally maintained. 
 There can be no obligation upon a merchant, merely because he takes upon himself 
 the character of agent, to advance to any required extent his own funds for tlie repairs 
 and outfit of a vessel consigned to his charge. It forms no part of the contract into 
 whicli he enters wlien he becomes an agent, liiat he should make such advances, and it 
 must rest witjj himself to judge of tlie prudence of so doing, according to the circum- 
 stances in which the vessel is placed." Though this case was reversed on appeal, yet 
 it was on another ground. Wallace v. Fielden, 7 Moore, P. C. 398. See also, The 
 Nuova Loancse, 22 Eng. L. & Eq. 623. In Clark v. The Bark Leopard, U. S. D. C, 
 Mass., 4 Law Reporter, 153, the libcllant, who was also the con.signee of the vessel, 
 employed her on various voyages, without accounting for the earnings, and in other 
 respects acted fraudulently, and it was accordingly held tliat lie could not recover. 
 
 1 This is well ilhistrated by the late case of Tlie Royal Stuart, 33 Eng. L. &. Eq. 
 602. The agents for the vessel at Australia, put on board, for England, a (juantity of 
 damaged flour. All parties believed that it might be safely conveyed without risk to 
 the shij), or those in it. But it became heated before the vessel left port and was neces- 
 sarily relanded. The agents also supplied the ship with necessaries for the homeward 
 voyage, and advanced a largo sum of money to the master. They then took a bond 
 covering the cost of supplies, the expense of relanding the flour, and the money ad- 
 vanced to the master. The bond was admitted, but on reference to the registrar and 
 merchants, the charges for rchintling the flour, and the amount of money advanced to 
 the master, were disallowed. The case came before the court on a motion to confirm 
 the report of the registrar. It was held that the agents had no right to ship their own 
 property on board, which from its nature might be dangerous, and then, when it be- 
 came so, charge the owner with the expense of relanding it. Y>r. Lus/iimjton said : 
 " It must be remembered always that this is a bond taken by the agent of the ship, 
 whose duty it is to protect the ship from all improper charges; and though it is true in
 
 428 ON THE LAW OP SHIPPING. [BOOK I. 
 
 were in the case, we do not know why the bond might not be 
 valid, even if the consignee had appointed the master who 
 made it.^ 
 
 We should answer the question, whether a valid bottomry 
 bond may be made to a charterer, in the same way. Such a 
 bond would be open to suspicion, and would require the most 
 careful scrutiny ; but would be valid if wholly unimpeached.^ 
 It is, however, decided on good authority, and for good reason, 
 that a bottomry bond to a part-owner, which binds the shares of 
 the ship belonging to the other owners to payment with extra 
 interest for repairs, is not valid.^ 
 
 I. 
 
 A Bond may be good in part and void in part. 
 
 A bottomry bond may be given for a sum of money composed 
 of several items, for a part of which such a bond may lawfully 
 be given, and for a part of which it may not be given. The 
 bond will then be good pro tanto ; for it seems to be quite well 
 settled that it may be good in part and void in part.^ If many 
 claims are added together to make up the amount for which the 
 bond is given, a court in which enforcement of it is sought, 
 will analyze these claims, requiring them to be severally proved ; 
 and will decree in favor of those only, or that part of the bond 
 only, which is sustained by sufficient proof and is not open to 
 
 law that an agent may take a bottomry bond, yet when he does so, all the transactions 
 connected with it require the utmost vigilance of the court, for the obvious reason, 
 that when the agent and lender are blended in one, the owner is deprived of the pro- 
 tection expected from a paid agent." In regard to the money there was no evidence 
 that it was wanted by the master, and the court therefore held that as the lender was 
 bound to see that a necessity existed, the bond was so far invahd. 
 
 1 See ante, p. 412, n. 4. 
 
 2 Breed v. The Ship Venus, U. S. D. C, Mass., Abbott on Shipping, 159, note. 
 8 Patton V. The Schooner Randolph, Gilpin, 457. 
 
 * The Augusta, 1 Dods. 283 ; The Hero, 2 Dods. 139 ; The Tartar, 1 Hagg. Adm. 
 1 ; The Nelson, id. 169, 176 ; The Heart of Oak, 1 W. Rob. 204, 214; The Ocean, 10 
 Jur. 504 ; Dobson v. Lyall, 3 Mylne & C. 453, n., 8 Jur. 969 ; The Royal Stuart, 33 
 Eng. L. & Eq. 602 ; Smith v. Gould, 4 Moore, P. C. 21 ; The Brig Hunter, Ware, 
 249 ; The Ship Packet, 3 Mason, 255, 259 ; The Virgin, 8 Pet. 538 ; The Brig Bridge- 
 water, Olcott, Adm. 35, 37 ; Furniss v. The Brig Magoun, Olcott, Adm. 55.
 
 en. XI.] CONTRACTS OF BOTTOMRY AND OF RESPONDENTIA. 429 
 
 objection.^ It is doubtful whether courts of commoa law have 
 this power; we think they have not.- 
 
 J. Of the Hypothecation of the Freight. 
 
 A bottomry bond which hypothecates the ship does not, of 
 necessity, hypothecate the freight also.^ But the master has the 
 same power over the freight that he has over the ship, and may 
 hypothecate the freight under the same circumstances, for the 
 same reasons, in the same way, and by the same bond.^ And a 
 general hypothecation of the freight by the master in a foreign 
 port, will be construed to include all the freight of the whole 
 voyage, whether earned at the time the bond is made or not,^ 
 provided it have not been paid to the master or owner.'' 
 
 K. Of the Construction of a Bottomry Bond. 
 A bottomry bond is preferred to any other lien whatever,"" ex- 
 
 1 The Aurora, 1 Wheat. 96. See also cases in preceding note, and The Osinanli, 3 
 W. Hob. 198, 219. In this case Dr. Liishington stated that he was not prepared to say 
 that in all cases where a small amount of the sum claimed is properly a subject of bot- 
 tomry, and the larger proportion of the demand is not properly the subject of a bond, 
 that tlie court would be under the necessity of pronouncing for that smaller amount. 
 Such a practice might lead to fraud, inconvenience, and litigation. 
 
 2 See The Hero, 2 Dods. 139, 147 ; The Shij) Packet, 3 Mason, 255, 259. 
 
 8 La Constancia, 4 Notes of Cases, 285 ; The Mary Ann, 4 Notes of Cases, 376, 383, 
 10 Jur. 253. See also. The Draco, 2 Sumner, 157; Crawford v. The Wm. Penn, 3 
 Wash. C. C. 484. 
 
 * The Gratitudine, 3 Rob. Adm. 240, 274; The Nelson, 1 Ilagg. Adm. 1G9; The 
 Augusta, 1 Dods. 283; Murray i'. Lazarus, 1 Paiuc, C. C. 572; Tlie Ship Packet, 3 
 Mason, 255. See also, cases in subsequent notes. 
 
 '' The Schooner Zephyr, 3 Mason, 341. In The Jacob, 4 Rob. Adm. 245, the freight 
 of a subsequent voyage, was, under the circumstances of the case, held liable for tho 
 bond. Tiic freight is liable to contribute pro rata with the slii]), althougii tiie sliip and 
 freight l)elong to different persons. Tiic Dowthorjie, 2 W. Rob. 73. And freigiit 
 earned from subsiiippcrs of goods by jjcrmission of the charterers of the whole sliij), is 
 liable, as against them, in payment of a bottomry bond given at the port of the char- 
 terers, for advances sulisecpient to the cliarter-party. The Eliza, 3 Hagg. Adm. 87. 
 
 c The John, 3 W. Hob. 170. See also. The Cynthia, 20 Eng. L. & Eq. 625. 
 
 ' The Mary, 1 Paine, C. C. 671 ; Tlie Duke of Bedford, 2 Ilagg. Adm. 294, 304; 
 The Mary Ann, 9 Jur. 94 ; Tlie Orelia, 3 Ilagg. Adm. 75, 83 ; The Ilersey, 3 Ilagg. 
 Adm. 404, 407. Sec also, cases ante, p. 410, note 2. In the case of Tlie Aline, 1 W. Uob. 
 Ill, a collision occurred, and the vessel, to the negligence of whose crew tlie collision
 
 430 ON THE LAW OF SHIPPING. [bOOK I. 
 
 cepting only the lien of the seanmen for wages ; ^ and the lien of 
 material men for repairs or supplies indispensable to her safety.^ 
 The reason of this rule is, that a bottomry bond saves the ship ; 
 for it is to be presumed that it was made from a strict necessity; 
 and if it had not been made the other liens on it would have 
 been worthless. The reason of the exception is, that the bot- 
 tomry bond itself would never have brought the ship within 
 reach of any persons having an interest in or a lien upon her, 
 had she not been navigated home by the seamen. So, too, if 
 there be several bottomry bonds on the same ship, the last takes 
 precedence, and a latter over a former, on the same ground, that 
 it is the last which saved the ship.^ And if a bottomry bond 
 
 was owing, put into Cowes for repairs. Application was made to D., a merchant of 
 that port, for assistance in procuring the necessary repairs. D. declined unless the 
 master would execute a bottomry bond for such sums as might be expended. This 
 the master agreed to do. D. had no knowledge of the claim against the vessel. Part 
 of the repairs were made prior to the arrest of the vessel for the damage done by the 
 collision, and part subsequent. The court having pronounced the vessel in fault, she 
 was sold by order of court, and the proceeds paid into the registry. D. having inter- 
 vened for his claim, the question came before the court as to which claim should be 
 preferred. Held, that D. was entitled to priority only to the extent of the increased 
 value of the vessel arising from the repairs. The vessel in this case had not left Cowes 
 when she was arrested, and no bond had been executed. The decree, therefore, is to 
 be taken in connection with all the circumstances of the case ; and Dr. Lnshington ex- 
 pressly said that he could not hold that, universally, bonds given for repairs must give 
 way to prior claims of damage. 
 
 1 The Madonna D'Idra, 1 Dods. 37, 40 ; The Sydney Cove, 2 Dods. 1,13; The 
 Constancia, 4 Notes of Cases, 512, 10 Jur. 845, 850; The Louisa Bertha, 1 Eng. L. & 
 Eq. 665 ; Blaine v. Ship Charles Carter, 4 Cranch, 328 ; The Virgin, 8 Pet. 538 ; The 
 Hilarity, 1 Blatchf & H. Adm. 90 ; Furniss v. The Brig Magoun, Olcott, Adm. 55, 66. 
 In The Selina, 2 Notes of Cases, 18, it was held that wages earned antecedently to a 
 salvage service would not be entitled to priority. And in The Mary Ann, 9 Jur. 94, 
 Dr. Lushington is reported to have said : " Suppose the wages sued for had been, in part, 
 wages on the outward voyage, before the bottomry bond was taken ; then would arise a 
 question of no small importance, namely, whether these wages would be entitled, as 
 against the ship, to priority over the bottomry bond. I apprehend, not." But in the 
 subsequent case of The Louisa Bertha, 1 Eng. L. & Eq. 665, where there were several 
 voyages, the court held, that the lien of the seamen for their wages extended to all 
 the voyages, they serving under a continuous contract. 
 
 2 The Jerusalem, 2 Gallis. 345. See also. Ex parte Lewis, id. 483. 
 
 3 The Exeter, 1 Eob. Adm. 173 ; The Sydney Cove, 2 Dods. 1 ; The Eliza, 3 Hagg. 
 Adm. 87 ; The Trident, 1 W. Rob. 29 ; Leland v. The Medora, 2 Woodb. & M. 113 ; 
 Furniss v. The Brig Magoun, Olcott, Adm. 66 ; Code de Commerce, book 2, tit. 9, 
 art. 323. In the case of The Betsey, 1 Dods. 289, the first bond was given on the 12th 
 of March, and on the 17th of the same month, more money being required, another 
 bond was given to another party. The preference was given to the latter bond, al-
 
 CH. XI.] CONTRACTS OF BOTTOMRY AND OF RESPONDENTIA. 431 
 
 holder discharges the demands of the seamen for their wages, 
 he perhaps stands as assignee of their claims, and has their lien 
 for wages, in connection with his own.^ It may be doubted, 
 however, whether the principle of novation does not apply so 
 far as to require the assent of the owner, or some security to pro- 
 tect his interests.^ If the lender had, under the same necessity 
 and to liberate the ship, repaid advances made for indispensable 
 repairs or supplies, he could include them in his claim.^ 
 
 For the reason that a bottomry bond is supposed to have 
 saved the ship, it is construed very liberally by all courts, and if 
 possible the intention of the parties is carried into effect.^ At 
 
 though there was so slight a difference as to date, and althougli the bonds were exe- 
 cuted at the same place, and the money was lent on the same voyage and on the same 
 risk. In The Constancia, 4 Notes of Cases, 285, there were three bonds. The first 
 and third were on the ship alone, and the second on the cargo alone. The first and 
 second were of the same date. The court held, that the two on the ship should be 
 paid out of the proceeds of tlie ship alone. But though the second was on the cargo 
 alone, yet the ship and freight were primarily liable for it, and what remained of the 
 proceeds of the ship should be first applied to the payment of it, then the freight, and 
 iastly, the cargo. So in The Trident, 1 W. Rob. 29, where thei-e were four bonds. Dr. 
 Lushinglon said : " I also take it to be clear, that in a case where there are several 
 bonds, and one is secured on the ship and freight, and another upon the ship, freight, 
 and cargo, according to every principle of equity, and this court sits as a court of 
 equity, I am bound to marshal the assets, and say you shall satisfy your claim from 
 the cargo, and you yours from the ship and freight." This privilege of priority is con- 
 fined to bonds given under necessity in a foreign port. 
 
 1 The Virgin, 8 Pet. 538, 553 ; The Kammerhevie Rosenkrants, i Hagg. Adm. 62. 
 But sec The Adolph, 3 Hagg. Adm. 249. In The Cabot, Abbott, Adm. 150, it was 
 held, that the bond holder had the right to pay the wages and stand in the place of the 
 seamen, but that he could not exact of them a formal assignment of tlicir wages, nor 
 the payment of his proctor's fees ; and on an offer to satisfy their wages he could not 
 require tiiem to defer the prosecution of their demands until he should choose to insti- 
 tute a suit on the bond. 
 
 2 See Dr. Lushingto)i's remarks in the case of The John Fehrman, 20 Eng. L. & Eq. 
 648. 
 
 * Sec Miller v. The Snow Rebecca, Bee, 151. 
 
 * Simonds v. Hodgson, 3 B. & Ad. 50 ; Tiie Alexander, 1 Dods. 278 ; The Rhada- 
 manthc, id. 201 ; The Hero, 2 id. 139 ; The Calypso, 3 Hagg. Adm. 162 ; The Reli- 
 ance, id. 66, 74 ; The Schooner Zephyr, 3 Mason, 341 ; Tope i-. Nickcrson, 3 Story, 465, 
 486. In The Jacob, 4 Rob. Adm. 245, 249, Lord Slowell said : " The disposition of 
 this court would certainly be, to upiiold the efficacy of bonds of this nature, as far as is 
 consistent with law. They are bonds of great sanctity, and highly necessary in mercan- 
 tile affairs, and, therefore, tlie court would be inclined to support them, as far as tlio 
 justice of the case will admit." See also. The St. Catherine, 3 Hagg. Adm. 250, 253 ; 
 Smith V. Gould, 4 Moore, P. 0. 28 ; The Mary Ann, 10 Jur. 253, 4 Notes of Cases, 
 376.
 
 432 ON THE LAW OF SHIPriNG. [bOOK I. 
 
 the same time, because they are made from necessity, or, as is 
 sometimes said, are creatures of necessity and distress,^ they are 
 very carefully watched, and, while the lender is protected against 
 any formal or technical objections if he has acted in good faith, 
 the ship-owner is also protected against oppression.^ Admiralty 
 courts are especially disposed to apply to all questions which 
 come before them on contracts of bottomry, principles and con- 
 siderations of equity.'^ Thus, although there is no precise limit 
 to what is called maritime interest, and in some cases a very 
 large percentage is allowed,^ yet if it be apparent and certain 
 that the lender took advantage of the borrower's necessities to 
 make him pay for the money far more than it was worth, a 
 court of admiralty will interfere, and reduce the interest within 
 proper bounds.^ It has been held, that if the voyage is de- 
 
 1 The Kennersley Castle, 3 Hagg. Adm. 1, 7. 
 
 2 In The Vibilia, 1 W. Rob. 1, 5, Dr. Lushington said: "Before, however, entering 
 upon the discussion of circumstances peculiar to this case, it may be not unadvisable 
 to consider what is meant by that dictum so often cited, and again urged in this cause, 
 that bottomry bonds are of a high and sacred character. All legal engagements, all 
 contracts sanctioned by the law, are sacred ; that is, they are to be enforced by every 
 coui-t of law and equity ; the expression, therefore, so often repeated must, I think, 
 have some other meaning more appropriate and peculiar to the subject itself, than 
 merely to denote the character which a bottomry bond enjoys in common with other 
 legal instruments. I may also further observe, that this expression, so often quoted, 
 cannot refer to priority of payment, for of that, when the bond is admitted to be valid, 
 no doubt is ever antertained. The only meaning, which, with satisfaction to my own 
 mind, I can attach to this observation, is, that where once the transaction is proved to 
 have been clearly and indisputably of a bottomry character, that is, where the distress 
 is admitted or established, the want of personal credit beyond question, and tlie bond 
 in all essentials apparently correct, then that under such circumstances the strong pre- 
 sumption of law is in favor of its validity, and it shall not be impugned save when 
 there shall be clear and conclusive evidence of fraud : or where ft shall be proved be- 
 yond all doubt, that, though purporting in form to be a bottomry transaction, the 
 money was in truth and in fact advanced upon different considerations." See also, 
 Greely r. Smith, 3 Woodb. & M. 236, 257. 
 
 3 See The Cognac, 2 Hagg. Adm. 377, 388; The Trident, 1 W. Rob. 29, 35; The 
 Heart of Oak, id. 204, 215 ; Packard v. The Sloop Louisa, 2 Woodb. & M. 48, 60. 
 
 * See ante, p. 407, note 2. 
 
 6 La Ysabel, 1 Dods. 273 ; The Zodiac, 1 Hagg. Adm. 320, 326 ; The Cognac, 2 
 Hagg. Adm. 377 ; The Boddington's, 2 Hagg. Adm. 422 ; The Heart of Oak, 1 W. 
 Rob. 204, 215; The Lord Cochrane, 2 W. Rob. 320, 336; The Hunter, Ware, 249; 
 The Ship Packet, 3 Mason, 255, 260; Wilmer i'. The Smilax, 2 Pet. Adm. 295, note. 
 In England the practice is for the court to refer the items for which the bond wa3 
 given, together with the premium, to the registrar and merchants. La Ysabel, supra; 
 The Lord Cochrane, supra. When their return is made, the court has the power to
 
 en. XI.] CONTRACTS OF BOTTOMRY AND OF RESPONDENlTIA. 435 
 
 feated before the marine risk has begun to run, only legalTS, he 
 est can be allowed.^ So, too, while the lien of the lender is pi 
 served very carefully, and goes with the ship unharmed through 
 gr^at distances and during long periods, yet when the lender can 
 enforce and realize this lien he should do so. Voluntarily to 
 permit the ship to voyage about the world with this unrecorded 
 and secret lien on her, exposes innocent purchasers to great dan- 
 ger. It is, therefore, either a fraud on the part of the lender, or 
 a carelessness which has the effect and does the work of fraud. 
 It is, therefore, held, that the bond does not create any absolute 
 interest in the ship, nor give an indissoluble lien ; and if the 
 lender delays enforcing it for an unreasonable time and without 
 reasonable cause, and a third person, by purchase or levy, 
 acquires the vessel without knowledge of the lien, the lender 
 will be held to have waived and lost his lien ; otherwise, not.^ 
 
 If a bottomry suit has been commenced and then abandoned, 
 Lord Stowell.has expressed himself as very reluctant to sustain 
 another suit on the same bond.-^ This reluctance would proba- 
 bly be felt by our admiralty courts ; but would certainly be re- 
 moved by any evidence explaining satisfactorily the abandon- 
 ment of the former suit. 
 
 L. Of the Poiaer of the Master over the Cargo. 
 
 In regard to the cargo, the master stands in a somewhat dif- 
 ferent relation from that which he holds toward the ship. In 
 general he is bound to receive the cargo, stow it properly, care for 
 
 allow the original interest if they have diminished it, or to still further diminish it, but 
 in such cases it will act with great caution and take into consideration tlie peculiar 
 circumstances of the case. Tiie Zodiac, supra ; The Cognac, supra. 
 
 1 Grcely v. Smith, 3 Woodb. & M. 23G. See also, 3 Kent, Comm. 357. 
 
 2 Blaine v. Tiie Ship Ciiarles Carter, 4 Cranch, 328 ; Wilmer v. The Sniilax, 2 Pet. 
 Adm. 295, note; Tiic Rebecca, 5 Hob. Adm. 102. See also, The Sydney Cove, 2 
 Dods. 1,7; Lcland v. The Sliip Mcdora, 2 Woodb. & M. 92, 105 ; The Brig Draco, 
 2 Sumner, 157, 191 ; The Brig Nestor, 1 Sumner, 73, 85; The Barque Clmsan, 2 
 Story, 455, 468. See also, cases ante, p. 118, note 3; p. 406, note 4. 
 
 8 The Fortitudo, 2 Dods. 58. In The Kalamazoo, 9 Eng. L. & Eq. 557, a sliip 
 was arrested in a cause of collision and tiie damage pronounced for. Subscciuently, it 
 being ascertained that the damage to tlic cargo was to a greater extent, a new action 
 was commenced, and the ship again arrested. Held, that this new action could not 
 be maintained. 
 
 VOL. I. 37
 
 434 ^ ON THE LAAV OF siiirpiNG. [book I. 
 
 it 6^"^^ tJTe voyage, carry it directly, and deliver it safely; and 
 etimes Hses all his duties and all his powers. Ho may, indeed, 
 ery careflf consignee or supercargo. Th(!n he unites, but does not 
 any fo/jne, these several otBces. Generally, on the voyage, he will 
 the sfegarded in respect to the cargo, as only master of the ship, 
 corut when the- ship and cargo have reached their destination, 
 '' and he then begins to deal with the cargo, the character of mas- 
 ter drops, and that of supercargo or consignee begins. But still 
 these functions may be in some degree cotemporaneous, if not 
 mingled. Thus, if at the port of destination, he takes the goods 
 on shore, in doing this he is a master, and when he disposes of 
 them on shore, he is consignee.^ But if he takes them on shore 
 with the intent of there embezzling them, although the WTong- 
 ful act begins when he is consignee, the wrongful intent in 
 what he does as master, makes it a barratrous act, or an offence 
 as master.^ So, if he makes a contract with a shipper which 
 should give him a lien on the ship, it can only be when he makes 
 it in his capacity of master,^ And if the necessity for the bond 
 
 1 See United Ins. Co. v. Scott, 1 Johns. 106. If the master cannot sell the cargo 
 he may leave it with a commission merchant in good credit, and is not obliged to 
 bring it home. Day v. Noble, 2 Pick. 615; Lawler v. Keaquick, 1 Johns. Cas. 174; 
 Stone V. Waitt, 31 Maine, 409. It is the custom in many places for goods to be con- 
 signed to the master for sale and returns. It has been held that while engaged in the 
 transportation of the goods he is a common carrier, while employed in selling, a factor, 
 and while bringing back the proceeds, a carrier again. That the master is a factor while 
 selling is held in Stone v. Waitt, 31 Maine, 409 ; The Waldo, Daveis, 161. In Mose- 
 Icy V. Lord, 2 Conn. 389, however, it was held that the owner of the vessel was liable for 
 the acts of the master in selling, on the ground that a consignment to the master was 
 a consignment to him in his ofBcial capacity, and was the same as a consignment to 
 the owners of the vessel, though it was admitted that if the consignment had been to 
 the master by name, the result would have been different. In Emery v. Hersey, 4 
 Greenl. 407, Kemp v. Coughtry, 11 Johns. 107, and Hamngton v. M'Shane, 2 Watts, 
 443, it was held that where the freight for the carriage of the goods was the only com- 
 pensation paid, the owners of the vessel were liable as common carriers for the pro- 
 ceeds of the sale as well as for the safe transportation of the goods. But in a subse- 
 quent case in New York, it was held that where the master receives a commission for 
 selling the goods aside from the freight, he is to be considered as the agent of the 
 shi])pcr as to the sale, and the owner of the ship is only responsible for the safe trans- 
 portation of the goods. Williams v. Nichols, 13 Wend. 58. 
 
 The power of the master to sell, when goods are consigned to him for that purpose, 
 is not revoked by the owner selling them while the vessel is at sea, the master having 
 no knowledge of the sale ; and he is considered as the agent of the vendee until some 
 one else is appointed to act for him. Smith v. Davenport, 34 Maine, 520. 
 
 2 Cook V. Com. Ins. Co., 11 Johns. 40. 
 8 See ante, p. 124, n. 1 ; p. 135, n. 2.
 
 I 
 
 en, Xr.] CONTRACTS OF BOTTOMRY AND OF RESPONDENTIA. 435 
 
 arises from his acting contrary to the orders of his owners, he 
 has no power to hypothecate the vessel.^ 
 
 Generally, and in the exercise of his duties as master, he is a 
 stranger to the cargo between the lading and the unlading. 
 But exigencies and emergencies may arise, in -which the mas- 
 ter becomes, of necessity, supercargo or consignee, or to speak 
 more correctly, is clothed with whatever agency or authority may 
 be needed to enable him to protect the property and interests 
 intrusted to him.^ In case of capture the master should do all 
 in his power to procure the restoration of the cargo,^ but he is not 
 bound to act fraudulently.'* The question has arisen in the case 
 of the seizure of the vessel and cargo for breach of a blockade, 
 how far the act of the master in attempting to enter is to be con- 
 sidered as the act of the owner of the cargo. The general rule 
 which has been laid down is, that if the vessel sails with a full 
 knowledge that the port of destination is blockaded, there is a 
 presumption that this is done with the full knowledge of the owner 
 of the cargo, and he is not allowed to prove the contrary; but if 
 the blockade is proclaimed subsequently to the sailing of the 
 vessel, the shipper is not bound by the act of the master in seek- 
 ing to enter after being warned off.^ 
 
 He may sell the whole cargo, if he can neither take it on 
 nor transship it, and it is perishable, and will be destroyed or 
 importantly diminished in value, before he can obtain instruc- 
 tions from the owner.*^ So, too, he may sell a' part of the cargo, 
 
 1 The Ecliance, 3 Ilagg. Adm. 66; The JIary Ann, 4 Notes of Cases, 376, 381, 
 10 Jurist, 253. 
 
 - The Gratitudine, 3 Rob. Adm. 240, 257 ; Vlierhoom v. Cliapman, 13 M. & W. 
 230, 239; Douglas v. Moody, 9 Mass. 548 ; Gillctt r. Ellis, 11 111. 579. 
 
 ^ It is sufficient if what he does is done in pood faith, and he is only answerable for 
 fraud or intentional neglect. Cheviot v. Brooks, 1 Johns. 364. 
 
 * Hannay v. Eve, 3 Cranch, 242. 
 
 s The Adonis, 5 Hob. Adm. 256; The Brig Nayade, 1 Ncwb. Adm. 366. 
 
 *■ But if the voyage is broken up, he cannot sell the cargo at the intermediate port 
 to pay for advances to him to repair the vessel for a new voyage, or to ])ay seamen's 
 wages. Watt v. Potter, 2 Mason, 77. A sale without necessity is invalid, and con- 
 veys no rights to the purchaser. Freeman v. East India Co., 5 B. & Aid. 617 ; Mor- 
 ris V. Robinson, 3 B. & C. 196; Cannan r. Meaburn, 1 Bing. 243; Van Omcron v. 
 Dowick, 2 Camp. 42 ; Wil.son v. Millar, 2 Stark. 1 ; Ewbank v. Nutting, 7 C. B. 797 ; 
 Campbell V. Thompson, 1 Stark. 490 ; Arthur v. Schooner Cassius, 2 Story, 81 ; 
 Pope i'. Nickerson, 3 Story, 465, 504; Dodge v. Union Ins. Co., 17 Mass. 471, 478. 
 See also, tiic important case of Post i-. Jones, 19 How. 150. In Peters v. Ballisticr, 3
 
 436 ON THE LAW OF SUIPPING. [eOOK I. 
 
 in order to raise funds to pursue the voyage and carry on the 
 remainder. But not until other means of raising money are 
 exhausted, including the drawing of bills on the owner, hypothe- 
 cating the ship, or making other use of the owner's property or 
 credit. In regard to the exercise of this power, it can only be 
 said that there must be an actual and urgent necessity ; and as 
 to the manner of its exercise, much must be left to the dis- 
 cretion of the master. If he acts in good faith, and under a 
 sufficient necessity, for the best interests of all concerned, and 
 with reasonable discretion, his acts will be valid. But it is not 
 enough that he acts bond fide if no actual necessity existed.^ 
 And although the beneficial effect of the sale will extend to the 
 ship, by enabling her to earn her freight, and even if the ship 
 profit most by it, yet if a part of the purpose and effect be to 
 -carry on the cargo that is not sold, it will be justified as an act 
 for the common benefit. 
 
 M. Of a Respondentia Bond. 
 
 As the master may make a bottomry of the ship, so, either 
 a part, or the whole of the cargo may be hypothecated by 
 him, if necessary ; ^ but only a part can be sold to raise 
 funds ; for if the whole is sold to raise money to repair 
 the ship, this is no benefit to the cargo or to the shipper.^ 
 
 Pick. 495, a case where the same person owned both ship and cargo, it was held that 
 the master had no authority to sell the cargo for the purpose of pajnng a debt of the 
 owner, although the creditor threatened, in case of refusal to detain the vessel and 
 cargo by legal process. We have seen, ante, p. 161, n. 2, when it is the duty of the 
 master to transship, and also, p. 161, n. 3, that he is not obliged to do so if the goods 
 are perishable in their nature. 
 
 1 The Gratitadine, 3 Rob. Adm. 240, 263; Pope v. Nickerson, 3 Story, 465, 491 ; 
 The Packet, 3 Mason, 255; The Joshua Barker, Abbott, Adm. 215; Myers v. Bay- 
 more, 10 Barr, 114; Stillman v. Hurd, 10 Texas, 109; United Ins. Co. v. Scott, 1 
 Johns. 106 ; Fontaine v. Col. Ins. Co., 9 Johns. 29 ; Searle i'. Scovell, 4 Johns. Ch. 218, 
 224 ; Am. Ins. Co. v. Coster, 3 Paige, 323 ; Ross v. Ship Active, 2 Wash. C. C. 226 ; 
 Underwood v. Robertson, 4 Camp. 138. If the cargo belongs to the owner of the 
 ship, the master may sell it at once for the benefit of the ship. Ross v. Ship Active, 
 supra. 
 
 - See cases in note supra, also The Lord Cochrane, 1 W. Rob. 312, 2 id. 320; The 
 Osmanli, 3 W. Rob. 198, 214; Justin v. Ballam, 1 Salk. 34. 
 
 2 See cases in note 1, supra.
 
 en. Xr.] CONTRACTS OF BOTTOMRY AND OF RESPONDENTIA. 437 
 
 If the goods are hypothecated by the master abroad, this is 
 usually done by a respondentia bond. This instrument, 
 although sometimes in the form of a bill of sale, is usually 
 in the form of a bond, and is almost the same thing in re- 
 spect to the goods which a bottomry bond is to the ship.^ 
 And like that it may be made by the owner of the goods at 
 home, without any necessity, either before or during a- voyage ; 
 and it may be so made to take up a former bond ; and it is not 
 necessary that the money so raised by respondentia on the goods 
 should be expended in the purchase of them or in any way 
 about them.^ If made by the master, it can only be made from 
 necessity, and undoubtedly all the law and the rules in refer- 
 ence to this necessity would be the same as in a case of bot- 
 tomry .^ A loan on respondentia is a loan on maritime interest; 
 it must therefore be a loan which is secured by the goods on 
 their safe arrival, but which puts both the principal and interest 
 at risk, and gives the lender no claim for any payment what- 
 ever if the goods be lost.* In practice the goods are also trans- 
 ferred to the obligee by an indorsement and delivery of the bills 
 of lading, as collateral security; and this gives to the obligee a 
 constructive possession of the goods.^ 
 
 1 The Gratitudinc, 3 Rob. Adm. 240, 2G0 ; The Osmanli, 3 W. Rob. 198, 214; The 
 Nostra Senora del Carmine, 29 Enp;. L. & Ecj. 572. The master has no autliority to 
 give a bond on the cargo alone. If he docs, the ship and freiglit are first liable, and 
 then the cargo, because it is the same as if he had given a bond on tlie ship, freight, 
 and cargo. La Constancia, 4 Notes of Cases, 285. And where a bond was given on 
 the ship and cargo, it was held that the freight was also liable. The Prince Regent, 
 cited 2 W. Rob. 83. 
 
 " Conard v. Atlantic Ins. Co., 1 Pet. 386 ; Franklin Ins. Co. v. Lord, 4 Mason, 248. 
 
 ^ See ante, cases on bottomry bonds. In many instances the owners of the cargo 
 are the only parties who oppose the bond. See The Bonaparte, 3 W. Rob. 298, 
 I Eng. L. & Eq. 041. 
 
 * In Franklin Ins. Co. v. Lord, 4 Mason, 248, the bond was given on the cargo to 
 secure the sum of ten thousand dollars loaned upon the outward and the homeward 
 cargoes of the vessel from Boston to Copenhagen and back. The vessel and cargo 
 were totally lost upon the homeward passage. There was a clause in the bond that 
 upon both voyages the vessel was to have on board the amount lent in goods. At the 
 time of the loss she had only goods to the amount of nine thousand dollars on board. 
 The lenders claimed to recover the whole amount on the ground that the having goods 
 to the value specified was a condition precedent. But it was held that they could 
 recover only the difi'ercnce between the amount lent and the amount on board. 
 
 ^ In Johnson v. Greaves, 2 Taunt. 344, the master of a ship detained as a prize, and 
 libelled in the prize court at Jamaica, gave bills of lading of the cargo, to a person 
 
 37*
 
 38 ON THE LAW OF SHIPPING. [bOOK I. 
 
 A bond of bottomry upon " the ship and freight" was held to 
 bind them only, and to exclude the cargo, although in the recital 
 of the same bond, it was said that the master was compelled 
 to take up money " on the said schooner, her cargo and 
 freight." i 
 
 If a portion of the cargo be pledged by respondentia, it has a 
 right of contribution for the purpose of redemption against the 
 rest of the cargo ; and it is said that the court would be inclined 
 to enforce this right against the other shippers, and not turn the 
 party over to his remedy against the owner alone. But this 
 must depend on circumstances. It might be a case in the 
 nature of general average, and then all the interests benefited 
 should contribute. But if, as would generally be the case, the 
 ship was bound to carry the goods, and thereby earn her freight, 
 and a part of the cargo was pledged for money to enable her to 
 do this, the ship would be responsible in the first place, and the 
 rest of the cargo would contribute only in case the ship could 
 not be made to pay. For whatever other shippers contributed, 
 they, too, could recover from the ship.- 
 
 who became bail for the ship and cargo there. The court held that the master had no 
 authority to contract that the cargo should be sold in London, and the proceeds remit- 
 ted back to Jamaica, the owners being ready to give a sufficient security to indemnify 
 the bail in London. Blackstone, in his Commentaries, vol. 2, p. 458, says that when 
 money is lent upon the cargo only the borrower is liable, and the lender has no claim 
 against the goods. And the very obscure case of Busk v. Fearon, 4 East, 319, may 
 seem to confirm this remark. But it is absurd to say that money is lent upon a cargo, 
 if it gives no lien on the cargo ; and the whole law of respondentia would be defeated 
 by such a rule. At most it can go no further than that a contract gives no lien on the 
 cargo when it is plain that the cargo is to be sold, free from all lien, and the return 
 cargo, which had no existence when the bond was made, cannot be subjected to the 
 lien. 
 
 1 The Schooner Zephyr, 3 Mason, 341. 
 
 2 See ante, p. 302, n. 3 ; p. 303, n. 1 ; also Alers v. Tobin, before Lord EUmborough, 
 Abbott on Shipping, 372 ; Duncan v. Benson, 1 Exch. 537, 3 Exch. 644 ; Pope v. 
 Nickerson, 3 Story, 465. In Hallett v. Wigram, 9 C. B. 580, an action of assumpsit 
 was brought by a shipper against the owner of the ship to recover damages for 
 the sale of a portion of a quantity of copper ore, shipped on a voyage from Adelaide 
 in Austi-alia to Swansea in South Wales. After having sailed, the vessel met 
 with a storm, and was obliged to put back to Adelaide for repairs. To pay for 
 these repairs a portion of the cargo was sold. The plea stated that the vessel met with 
 a storm, and was obliged to put back, that repairs were necessary to enable her to 
 deliver her cargo, and that no other ship could be obtained to take on the cargo, and 
 that the master was unable by bottomry, hypothecation, or otherwise, than by such sale 
 to raise the money necessary for the repairs, and that the ship when repaired was not
 
 en. XI.] CONTRACTS OF BOTTOMRY AND OF RESPONDENTIA. 439 
 
 N. Some Special Rules in regard to Bottomry Bonds. 
 
 In payment of a bottomry bond where all the interests are 
 bound, the assets are to be marshalled. In the first place the prop- 
 erty of the owner of the ship will be applied. Then, the money 
 of the master, or perhaps his other property, before the goods of 
 shippers.^ In making up the decree, the sum lent, together with 
 the marine interest up to the time when the bond is payable, 
 constitutes the principal, and legal interest is to be added to this 
 from that time to the time of the decree.^ 
 
 worth the cost of rcpiiir. To this plea the plaintiff demurred, and the demurrer was 
 sustained. The court held that the injury which obliged the vessel to put I)ack not 
 being itself a subject of general average, the expenses consequent thereon could not be 
 compensated for l)y all the parties in interest, but must fall upon the shii)-owner. In 
 answer to the argument that the repairs were solely for tlie benefit of the cargo, be- 
 cause when put on the ship they cost more than the ship was worth, it was said by the 
 court that the plea merely stated that the expense was greater than the value of the 
 ship, and not, than the value of the ship and freight. They also held that the ore was 
 a species of jjroperty which would not deteriorate by being kept, even if no other ship 
 could be obtained at that, time, but tliis, they said, did not appear I)y the plea, for the 
 cargo consisted of other goods than the plaintiff's, and the plea merely stated that no 
 other sliip could be obtained to carry on the cargo, and not that none could be found 
 to take tiie plaintiff's goods. There are also similar decisions in this country. Hassam 
 V. St. Louis Perpet. Ins. Co., 7 La. Ann. 11 ; The Gold Hunter, 1 Blatclif. & H. Adm. 
 300 ; The Boston, id. 309, 3.30 ; Am. Ins. Co. v. Coster, 3 Paige, 323. But the shipper, 
 whose goods are sold, is not entitled to claim from the ship-owner, the price wliich 
 they might have realized at the port of delivery, unless the ship arrives. An averment 
 of the arrival of the ship is therefore necessary. Atkinson v. Stephens, 7 Exeh. 5G7, 
 14 Eng. L. & Eq. 407. 
 
 1 The Ship Packet, 3 Mason, 255, 267. Both ship and freight are liable before the 
 cargo, and this is true, although the bond is given on the cargo alone. Tlie Constan- 
 cia, 4 Notes of Cases, 285. For the way the court will marshal the assets where there 
 .are several bonds, one on ship and freight, and another on sliip, freight, and cargo, see 
 The Trident, 1 W. Hob. 29, ante, p. 430, n. 3. 
 
 2 The Ship Packet, 3 Mason, 255, 267 ; Furniss v. The Brig Magoun, Olcott, Adm. 
 55, 66 ; The Ship Panama, id. 342, 352. In England, it would seem that the practice is 
 to allow interest only on tlie bond, and not on the bond and interest. Marsliall on Ins. 
 b. 2, cli. 4, p. 752. Mr. Arnould, however, is of opinion that the law as laid down by 
 Mr. Justice Storij in the case above, is now the law of England. 2 Arnould, Ins. 1340. 
 No authority is cited for this, and the practice seems to be the otiier way. Sec Tlie 
 Cognac, 2 llagg. Adm. 377, 393 ; The St. Catharine, 3 llagg. Adm. 250. After judg- 
 ment, interest is not allowed unless the losing party occasion unnecessary delay. Tiic 
 Exeter, 1 Kob. Adm. 173. In The New Brunswick, 1 W. Kob. 28, it was held that where 
 the legal iiolders of a bond reside out of the countrj-, and have no agent there, interest 
 will be decreed only from the time of tiie arrival of a power of attorney authorizing 
 the receipt ^f the principal.
 
 440 • ON THE LAW OF SHIPPING. [bOOK I. 
 
 Although the last bottomry has a preference over all former 
 ones, yet if the property will not pay all, and they are really 
 concurrent, the parties being equally interested and on equal 
 terras, they will be paid pro rata, although the dilTerent bonds 
 may bear different actual dates. ^ 
 
 A bottomry bond in admiralty is generally regarded as a 
 negotiable instrument or interest, which being transferred in 
 good faith and for consideration, may be put in force by the 
 holder in his own name.^ 
 
 By the English statute of 7 Geo. 1, ch. 21, § 2, contracts 
 made by English subjects upon loans by way of bottomry on 
 ships in the service of foreigners, designed to trade within the 
 limits of the East India's Company's charter, were made void. 
 And by 19 Geo. 2, ch. 87, § 5, loans on bottomry upon ships be- 
 longing to English subjects, bound to or from the East Indies, 
 were required to be made only on the ship and cargo, and to be 
 so expressed in the bond. 
 
 In England courts of equity, as well as courts of admiralty, 
 exercise jurisdiction over bottomry bonds.^ 
 
 It may be added, that if a bond is obtained from the master 
 by duress, it is of course void ; but the fact that he was under 
 duress at the time it was executed, does not prove that the bond 
 was obtained by duress."^ 
 
 If the bond contains such clauses as are proper to mortgages; 
 as that the master " grants, bargains, and sells thelehip, with 
 the usual proviso, that on payment of the money it is to be 
 void," this does not prevent it from being a bottomry bond, if 
 the maritime risk is incurred.^ 
 
 1 The Exeter, 1 Eob. Adm. 173, 176 ; La Constaricia, 4 Notes of Cases, 512, 518. 
 
 2 The Rebecca, 5 Rob. Adm. 102, 104 ; The Prince of Saxe Cobourgr, 3 Hagg. Adm. 
 387, s. c. Soares v. Rahn, 3 Moore, P. C. 1 ; The Osmanli, 3 W. Rob. 198. The 
 Code de Commerce, art. 313, 314, provides that a bond payable to order may be nego- 
 tiated like any other commercial instrument, but the guaranty of payment by indorse- 
 ment does not extend to the maritime interest, unless it is expressly so stipulated. 
 
 3 Glascott V. Lang, 8 Sim. 358, 3 Mylne & C. 451 ; Dobson v. Lyall, 3 Mylne & C. 
 453, note ; Duncan v. M'Calmont, 3 Beav. 409. 
 
 *.The Heart of Oak, 1 W. Rob. 204 ; The G.auntlet, 3 "W. Rob. 82. 
 5 Robertson v. United Ins. Co., 2 Johns. Cas. 250.
 
 CH. XII.] now SEAJMEN ARE REGARDED BY THE COURTS. 441 
 
 CHAPTER XII. 
 
 OF THE SEAMEN, 
 
 SECTION I. 
 
 now SEAMEN ARE REGARDED BY THE COURTS. 
 
 TnE common law courts in some degree, and admiralty courts 
 still more, regard these persons as peculiarly in need of, and en- 
 titled to, the protection of the courts, because peculiarly exposed 
 to the wiles of sharpers and unable to take care of themselves.^ 
 The statutes of England and of this country contain many pro- 
 visions in their behalf, and in some respects we carry them 
 further than any other nation. Early in our legislation there 
 was a prohibition against the shipping on board of our vessels 
 of foreign %eamen not naturalized.^ But this act was made to 
 apply only to the subjects and citizens of countries which pro- 
 
 1 Mr. Justice (Story, in Harden v. Gordon, 2 Mason, 541, 553, states the law with 
 great accuracy: "Every court should watch with jealousy an encroachment upon the 
 rights of seamen, because they are unprotected and need counsel ; because they 
 are thoughtless and require indulgence ; because they are credulous and comply- 
 ing, and are easily overreached. But courts of maritime law have been in the 
 constant habit of extending towards them a peculiar protecting favor and guardian- 
 ship. They are emphatically the wards of the admiralty ; and, although not 
 technically incapable of entering into a valid contract, they arc treated in the same 
 manner as courts of equity are accustomed to treat young heirs, dealing witli their ex- 
 pectancies, wards with their guardians, and cesluis que trust with their trustees. The 
 most rigid scrutiny is instituted into the terms of every contract in which they engage. 
 If there is any undue ine(iuality in the terms, any disproportion in the bargain, any 
 sacrifice of rights on one side, which are not conqiensatcd by extraordinary benefits on 
 the other, the judicial interpretation of the transaction is, that the bargain is unjust and 
 unreasonable, that advantage has been taken of the situation of the weaker party, and 
 that pro tanto the bargain ought to be set aside as inequitable." 
 
 2 Act of March 3, 1813, ch. 42, 2 U. S. Stats, at Large, 809. See Appendix.
 
 442 ON THE LAW OF SUIPPING. [lOOK I. 
 
 hibit the employment in their vesi?els of our citizens.^ And as 
 these are very few, this circumstance and the necessities of com- 
 merce have caused this statute to be very seldom regarded or 
 enforced. 
 
 The most important points in which the statutes of the United 
 States provide for the protection of our sailors are in relation to, 
 1st. The shipping articles ; 2d, Wages ; 3d. Provisions and sub- 
 sistence ; 4th. Sea-worthiness of the ship ; 5th. The care of sea- 
 men in sickness; 6th. The bringing them home; 7th. Regulation 
 of punishment; to which we may add, 8th. Provisions in respect 
 to desertion and discharge, either at the beginning or during the 
 course of the voyage. The principal statutes on these subjects 
 we shall give in our Appendix. Here we shall state generally 
 the purport and effect of these provisions and of the adjudica- 
 tions respecting them. 
 
 SECTION II. 
 
 OP THE SHIPPING ARTICLES. 
 
 Every master of a vessel bound from a port in the United 
 States to any foreign port, or of any ship or vessel of the burden 
 of fifty tons or upwards, bound from a port in one State to a 
 port in any other than an adjoining State, is required to have 
 shipping articles, under a penalty of twenty dollars for every 
 person who does not sign,^ which must be signed by every sea- 
 man on board, and these must describe accurately the voyage, 
 and the terms for which the seaman ships.-^ The courts interfere 
 
 1 Sect. 10. See Appendix. 
 
 2 One suit should be brought for each penalty, and one count is sufficient. Wolver- 
 ton V. Lacey, U. S. D. C, Ohio, 18 Law Reporter, 672. 
 
 3 Act of July 20, 1790, c. 29, 1 TJ. S. Stats, at Large, 131. A general coasting and 
 trading voyage in which the vessel is trading at different ports is within this act. The 
 Crusader, Ware, 437. And it extends also to the lakes and public navigable waters 
 connecting the same. Wolverton v. Lacey, U. S. D. C, Ohio, 18 Law Reporter, 672. 
 The 6th section of the above act provides, that the master shall produce the contract 
 and log-book when required, otherwise parol evidence of their contents may be given. 
 The first section of the Act of 1840, .5 U. S. Stats, at Large, 394, has been considered 
 to imply that the owner must deposit the original articles with the collector of the port
 
 en. XII.] SHIPPING ARTICLES. 443 
 
 to protect a seaman against loose and indefinite language, or 
 unfair, or new and unusual stipulations ; ^ and wherever there is 
 a doubt as to their meaning or obligation, the seaman has the 
 benefit of the doubt.^ Thus a voyage from one place to an- 
 other being stated, and the words "and elsewhere" being added, 
 these mean nothing, or only such further procedure by the vessel 
 as fairly belongs to the voyage described ; and this the law 
 would permit without them.^ But a definite usage may give a 
 
 where tlicy contract, and it has been suggested that this so far modifies the former act, 
 that the master or owner, if not relieved from producing them at the call of the sea- 
 man, because, being in the custom-liouse, they are as much at the command of the sea- 
 man as of the owner, yet at least the seaman should give distinct and reasonalde notice 
 that he desires them. The Brig Osceola, Olcott, Adm. 450, 459. This case also de- 
 cides that in the absence of the shipping articles the statement of the mariner in the 
 libel is only evidence of what the master is obliged to put in the articles, namely, " a 
 declaration of the voyage or voyages, term or terms of time for which the seaman or 
 mariner shall be shipped." And also, that if the owners prove a reasonable excuse for 
 not producing the articles, they may contradict by parol the statement of their contents 
 by the mariner. See Piehl v. Balchen, Olcott, Adm. 24. The shipping articles are 
 admissible as evidence of the terms of hire in an action brought by the master, or his 
 administrator against the owners, as well as in suits between the seamen and owners. 
 Willard v. Dorr, 3 Mason, 161. 
 
 1 The leading cases on this point are The Juliana, 2 Dods. 504 ; Harden v. Gordon, 
 2 Mason, 541 ; Br(Wvn v. Lull, 2 Sumner, 44-3. If the articles are signed under duress 
 and protest, they are invalid. Stratton v. Babbagc, U. S. D. C, Mass., 18 Law Kc- 
 portcr, 94. 
 
 2 See The Minerva, 1 Hagg. Adm. 347, 355; The Iloghton, 3 Hagg. Adm. 100, 
 112; Jansen v. The Heinrich, Crabbe, 226; Wape v. Ilemcnway, 18 Law Beportcr, 
 390. 
 
 2 Brown v. Jones, 2 Gallis. 477. In an early case before Mr. Justice Winchettcr, 
 Anonymous, 1 Hall, Am. Law Journal, 209, the shipping articles were for a voyage 
 from Baltimore to Curacoa, and elsewhere. It was held, that this did not authorize a 
 voyage from Baltimore to St. Domingo, and that the words "and elsewhere" must be 
 construed either as void for uncertainty, since they did not contain any proper descrip- 
 tion of the terminus a quo and ad quern, as required by the act of congress, or as subor- 
 dinate to the principal voyage stated, and authorizing t.Iie ship in the progress of the voy- 
 age to pursue such course as might be necessary to accomplish the principal voyage, 
 and this would be no more than was implied by the law itself. And in Ely v. Peck, 7 
 Conn. 239, a description of a voyage from New London to Oporto and elsewhere, was 
 held to mean a voyage from^New London to 0])ort() ; and the words "and elsewhere" 
 were rejected for uncertaint}'. Sec also, Gilford v. Kollock, TJ. S. D. C, Miiss., 19 Law 
 lleporter, 21 ; The Countess of llarcourt, 1 Hagg. Adm. 248 ; The Eliza, id. 182, 185 ; 
 The Minerva, id. 347, 354; The George Home, id. 370, 374. In this last case it was 
 decided that under an engagement to go " from London to Batavia in the East India 
 seas, or elsewhere, and until the final arrival at any i)ort or jiorts in Europe," the sea- 
 men were not bound, upon the arrival of the vessel at Cowes for orders, according to 
 previous agreement between the owners and the master, to proceed on a further voyage
 
 444 ON THE LAW OF SHIPPING. [eOOK I. 
 
 precise meaning to these words.^ And the shipping articles 
 ought to declare explicitly the ports of the beginning and of the 
 
 to Rotterdam. See also, The Westmorland, 1 W. Rob. 21 G, 22.5 ; Piehl v. Balchen, 
 Olcott, Adm. 24. In Douglass v. Eyre, Gilpin, 147, it was held, that the deseription of 
 a voyage from Philadelphia to Gibraltar, other ports in Europe, or South America, and 
 back to Philadelphia, authorized a voyage from Gibraltar to South America, direct. 
 Mr. Justice Uopkinson was also of the opinion, in the case of Magee v. The Moss, 
 Gilpin, 219, that a voyage from Philadelphia to Buenos Ayres, thence to Havana, 
 thence to Marseilles, thence to a port in South America, and thence back to Philadel- 
 phia, came within the description of a voyage "from Philadelphia to South America, 
 or any other port or ports, backwards and forwards, when and where required, and 
 back to Philadelphia." This proceeds upon th(! ground that although the description be 
 too broad to satisfy the act of congress, yet if the master does under it only what the 
 court tliinks reasonable, the seaman cannot leave the ship. This construction is opposed 
 by Mr. Justice Ware, in the case of The Crusader, Ware, 437. 
 
 And it is now provided, by the Act of July 20, 1840, ch. 48, 5 TJ. S. Stats, at Large, 
 395, § 10, that all shipments of seamen contrary to the provisions of acts of congress 
 shall be void. Accordingly it has been held, in a recent case, that a description of a 
 voyage " from the port of Boston to Valparaiso, and other ports in the Pacific Ocean, 
 at and from thence home, direct, or via ports in the East Indies or Europe," was not 
 a compliance with the Act of 1790. Snow v. Wope, 2 Curtis, C. C. 301. Mr. Justice 
 Curtis said : " It is manifest that no definite and specific voyage, nor even any limited 
 number of voyages, is here described ; but liberty exists, to carry on any number of voy- 
 ages, during such time as the vessel may last, at the discretion of the master, provided 
 that the first port to which the vessel goes is Valparaiso, and her gltimate port of des- 
 tination is Boston. These are the only fixed termini, and between them there are no 
 limits of time, and scarcely any of space. If this is a sufficient description to satisfy 
 the requirement of the act, it is an idle requirement, and affords no protection to the 
 seaman." See the same case in the District Court, 18 Law Reporter, 390. As to the 
 meaning of the word "cruise" in the shipping articles, see The Brutus, 2 Gallis. 526. 
 A trading voyage does not include a freighting voyage. Brown v. Jones, 2 Gallis. 477. 
 Nor docs a whaling voyage include a trading voyage to dispose of the cargo after it is 
 obtained. GiflFord v. Kollock, 19 Law Reporter, 21. In The United States v. Staly, 
 1 Woodb. & M. 338, a voyage from the home port to Apalachicola, or elsewhere for a 
 market, was held to be sufficiently described in the shipping articles to be binding. In 
 Stratton v. Babbage, U. S. D. C., Mass., 18 Law Reporter, 94, the question arose as 
 to the meaning of " a port of discharge in the United States." It was held, that a port 
 in the slave States, where colored seamen are obliged to remain in jail, or on board the 
 vessel while she remains in port, is not a port of discharge for them. In The Varuna, 
 Vice Adm. Ct., Lower Canada, 18 Law Reporter, 437, the voyage was "from the port 
 of Liverpool to Constantinople, thence (if required) to any ports or places in the 
 Mediterranean or Black seas, or wherever freight may offer, with liberty to call at a port 
 for orders, and until her return to a final port of discharge in the United Kingdom, or 
 
 1 Thus the same objection does not apply to the use of the word "elsewhere" in a 
 whaling, as in a trading or freighting voyage. But even in such a case, there must be 
 a terminus to the voyage specified. Gilford v. Kollock, 19 Law Reporter, 21. See 
 also. Brown v. Jones, 2 Gallis. 477.
 
 CH. XII.] SHIPPING ARTICLES. 445 
 
 termination of the voyage.^ If a number of ports are named, 
 they must be visited in their geographical, or rather commercial 
 order, or as they stand in the articles, without returning to any 
 which have been visited.^ But if the shipping articles contain 
 expressions not obviously oppressive, indicating distinctly that 
 the master is to have a discretion in these matters, the courts will 
 not interfere.^ 
 
 So as to other stipulations, they will be sustained or rejected, 
 as they seem to be fair or otherwise.* Any stipulation contra- 
 
 for a term not to exceed twelve months." The ship went to Constantinople, and then 
 returned to INIalta, and thence sailed direct to Quebec in search of freight. The court 
 held, that the voyage to Quebec was not justified by the articles, because the words 
 "wherever freight may offer" should be construed with reference to the previous 
 description of the voyage, and must be considered as meaning any ports or places in 
 the two seas mentioned in the articles, or some place in their immediate neighborhood, 
 or between them and the United Kingdom. And in Peterson v. GiI)Son, Superior Ct., 
 Suffolk Co., Mass., 20 Law Reporter, 380, the description " a voyage from Liverpool 
 to Havana, thence (if required) to any ports or places in the West Indies, or wherever 
 freight may offer, and back to a final port of discharge in the United Kingdom, or for 
 a term not exceeding twelve months," was held not to cover a voyage from the "West 
 Indies to Boston and back during the period. The following has been held to be a 
 sufficient description : " From Boston to one or more ports south, thence to one or 
 more jiorts in Europe, and back to a port of discharge in the United States." Thomp- 
 son V. Sliip Oakland, U. S. D. C, Mass., 4 Law Reporter, 349. Where the voyage 
 was described in the shipping articles to be to a "final port of discharge," it was held 
 that tlie voyage was not ended until the cargo was wholly unladen, and that the owner 
 might order the vessel from port to port till that was done. United States v. Barker, 
 5 Mason, 404. 
 
 1 Anonymous, 1 Hall, Am. Law Journal, 209 ; The Ciiisadcr, Ware, 437 ; Magee v. 
 The Moss, Gilpin, 219, 226; Gifford v. Kollock, 19 Law Reporter, 21. 
 
 2 Douglass V. Eyre, Gilpin, 147; Bro^^-n f. Jones, 2 Gallis. 477, 480. 
 
 8 Wood V. The Nimrod, Gilpin, 83. But see The Brookline, U. S. D. C, Mass., 8 
 Law Reporter, 70. 
 
 * The Minerva, 1 Hagg. Adm. 347, 355 ; Harden v. Gordon, 2 Mason, 541,555; 
 Brown v. Lull, 2 Sumner, 443; The Sarah Jane, 1 Blatchf & H. Adm. 401, 406; 
 The Brig Cadmus v. Matthews, 2 Paine, C. C. 229. In The Prince Frederick, 2 Hagg. 
 Adm. 394, the articles contained a clause that if contraband goods should be found in 
 the forecastle, the seamen living therein should forfeit their wages and £10 besides. 
 Held, tliat the penalty of .£10 could not be enforced at all in a court of admiralty, and 
 that only those seamen forfeited their wages who were proved to be directly implicated 
 in the offence. In Harden v. Gordon, 2 Mason, 541, 555, the following stipulation was 
 set aside as grossly inequitable : " We further agree and bind ourselves to pay for all 
 medicines and medical aid, further tlian the medicine chest affords." See also. Free- 
 man V. Baker, 1 Blatchf. &. II. Adm. 384. So a stipulation, that the seamen will sue 
 for wages in courts of common law only, is void, unless it be proved that the matter 
 was clearlv explained to them, before they entered into the agreement ; and their 
 
 VOL. I. 38
 
 446 02f THE LAW OF SUIPPING. [bOOK I. 
 
 veiling the language or the )3olicy of a statute, is of course void.^ 
 Not unfrequently clauses are introduced lessening the rights of 
 the seamen to their wages, or the like ; and though confimon 
 law courts allow some force to these,"'^ admiralty courts never 
 do;^ nor do they give any effect to the receipt of a sailor for his 
 
 rights •will be in no way prejudiced by such a change. The Sarah Jane, 1 Blatchf. 
 & H. Adm. 401. It was also held, in this case, that under a stipulation that all differ- 
 ences between the master or owners and the crew, shall be referred to arbitration, 
 where wages due were demanded, but payment refused, there was no difference within 
 the meaning of the stipulation. In Brown v. Lull, supra, Mr. Justice Story said : 
 " Courts of admiralty are not, by their constitution and jurisdiction, confined to the 
 mere dry and positive rules of the common law. But they act upon the enlarged and 
 liberal jurisprudence of courts of equity; and, in short, so far as their powers extend, 
 they act as courts of equitj*. Whenever, therefore, any stipulation is found io the 
 shipping articles, which derogates from the general rights and privileges of seamen, 
 courts of admiralty hold it void, as founded on imposition or an undue advantage 
 taken of their necessities and ignorance and improvidence, imless two things concur ; 
 first, that the nature and operation of the clause is fully and fairly explaiued to the 
 seamen ; and, secondly, that an additional compensation is allowed, entirely adequate 
 to the new restrictions and risks imposed upon them thereby." In Neave v. Pratt, 5 
 B. & P. 408, the articles contained a clause that the seamen might leave the ship at the 
 end of three months, if the ship was in port or in perfect safety, of which the captain 
 was to be the sole judge. Held, that even if this proviso were not void, yet the captain 
 could not refuse without reason, of which the jury were to judge. In Granon v. Harts- 
 horne, 1 Blatchf. & H. Adm. 454, it was held, that a stipulation that the seamen should 
 not sue for wages until the vessel was unladen, was binding if fairly made. And in 
 The Atlantic, Abbott, Adm. 451, a stipulation in the articles for a whaling voyage, 
 that if either of the officers or crew should be prevented by sickness or any other cause 
 from performing their duty during the whole of the voyage, he should receive of his 
 lay in proportion as the time served, or duty performed by him should be to the whole 
 time of the voyage, was held valid. 
 
 1 Harden v. Gordon, 2 Mason, 541 . 
 
 2 Cutter V. Powell, 6 T. K. 320; Appleby v. Dods, 8 East, 300; Jesse v. Eoy, 4 
 Tyrw. 626, 1 Cromp. M. & R. 316. In this case Lord Lyndhurst, C. B., said: "I 
 know no principle by which a contract entered into by mariners is to be construed dif- 
 ferently from those made among other persons." See also. Rice v. Haylet, 3 Car. & 
 P. 534 ; "Webb v. Duckingfield, 13 Johns. 390 ; Dunn v. Comstock, 2 E. D. Smith, 
 142, and cases in next note. 
 
 3 In The Juliana, 2 Dods. 504, it was held, that in a divided voyage, where, by the 
 general law, the seamen are entitled to their wages up to the last port of delivery, a 
 stipulation in the articles, that they should not be entitled to any part of their wages in 
 case of the loss of the vessel before her arrival at the final port of discharge, was void. 
 See also. Buck v. Rawlinson, 1 Bro. P. C. 137 ; Edwards v. Child, 2 Vem. 727. So 
 in Johnson v. Sims, 1 Pet. Adm. 215, where the agreement was as follows : " No officer 
 or seaman belonging to the said ship shall demand or be entitled to his wages, or any 
 part thereof, until the arrival of the said ship at the port of discharge in Philadelphia." 
 This was held to mean merely that the wages for the outward voyage should be paid 
 only in Philadelphia ; and that if the vessel was lost or captured the wages due should
 
 CH. XII.] SHIPPING ARTICLES. 447 
 
 wages, whether sealed or parol, unless there was an actual pay- 
 ment of thera;^ and if the shipping articles be sealed by the 
 mariners but not by the master, assumpsit lies on them by 
 the seamen, at common law.^ In admiralty, seals have no 
 effect.'^ The stipulation in the shipping articles is conclusive as 
 to wages ;^ and no more can be recovered on any special promise 
 
 be paid after the ordinary time for her amval had elapsed. See also, Millot v. Lovett, 
 Sup. Jud. Ct., Mass., 2 Dane, Abr.461 ; Swift v. Clark, 15 Mass. 173. In the case of 
 Goodridgc v. Peabody, before the same court, 2 Dane, Abr. 462, the special agreement 
 wa? fully explained to the seaman before he signed, and the case was, therefore, decided 
 differently from those above cited. In Brown v. Lull, 2 Sumner, 443, the following 
 stipulation was held to be void : " In case of the said vessel being taken or lost in the 
 course of the said voyage, no wages shall be demanded or received by the persons sub- 
 scribing the same, except the advance wages received by them respectively, at the time 
 of entry on board ; and that, if the said vessel should be restrained for more than thirtv 
 days at any one time, tlie wages should cease during such restraint and no longer." 
 So in The Cj'press, 1 Blatchf. & H. Adm. 83, it was held, that a stipulation was void 
 which provided that the seamen should not, in any case, demand their wages until the 
 expiration of twelve months, if the voyage was completed, or the men discharged before 
 that time. But a stipulation, that the seamen shall not sue for wages, until the vessel 
 is unladen, is binding, if fairly made. Granon v. Hartshorne, 1 Blatchf. & H. Adm. 454. 
 So a clause, usual in the Baltic trade, that the officers and seamen agree to accept half 
 wages in case of the vessel wintering abroad, is valid. The Hoghton, 3 Hagg. Adm. 100. 
 
 1 Thorne v. White, 1 Pet. Adm. 178; Jackson v. White, id. 179 ; Whiteman v. The 
 Neptune, id. 180, 182 ; Harden v. Gordon, 2 Mason, 541 ; Thomas v. Lane, 2 Sumner, 1, 
 11 ; Piehl v. Balchen, Olcott, Adm. 24. And in Whitney v. Eager, Crabbe, 422, a release 
 of all complaints against the officers of the vessel which the seaman had to sign in 
 order to get his wages, was held to bo void. But the evidence to control a receipt in 
 full for wages must be clear and explicit. Leak i'. Isaacson, Abbott, Adm. 41. 
 
 ^ This is in accordance with the head note in Sutherland v. Lishnan, 3 Esp. 42, but 
 it docs not appear certainly wliat point the case decided. The action was assumpsit 
 for wages. In defence it was shown that the ship's articles were under seal, that they 
 were signed by the plaintiff but not by the defendant, and it was contended that, the 
 articles being under seal, the action ought to have been covenant. The report then 
 adds : " Lord Eldon ruled, that the binding by deed ought to be mutual to make it 
 necessary for the plaintiff to sue in covenant, that the defendant never having sealed 
 the articles could not be sued in that form of action, and that the present action was 
 not rightly brought. Tiie defendant had a verdict." To make this language consistent, 
 cither tlie word "not," in tlie phrase "not riglitly brought," must be struck out, and the 
 word "plaintiff" be substituted for "defendant" in the last sentence, or we must sup- 
 pose that, owing to some facts not mentioned, assumpsit would not lie. 
 
 8 The David Pratt, Ware, 495. 
 
 * White V. Wilson, 2 B. & P. 116 ; Elsworth v. Woolmore, 5 Esp. 84 ; The Isabella, 
 2 Rob. Adm. 241 ; Veacock v. M'Cali, Gilpin, 329. But sec Parker v. Tiie Ship 
 Calliope, 2 Pet. Adm. 272 ; Page r.Shetlield, 2 Curtis, C. C. 377. In Carter v. Hall, 
 2 Stark. 361, it was held, that a purser's steward, who receives a specific salary from 
 the crown, cannot recover wages from the purser on an implied contract for his services
 
 448 ON THE LAW OF SUIPPING. [bOOK I. 
 
 to pay for severe or extra labor or exposure in the course of duty.^ 
 If, however, a seaman be promoted, he takes the wages of his 
 
 on board tlie ship. See also, Daftcr v. Cresswell, 7 Dowl. & R. 650. But in Clutter- 
 buelv V. CofBn, 4 Scott, N. R. 509, it was held, that, the plaintiff having, at the request 
 of the defendant, a captain in the navy, entered on board his ship as cook, on condition 
 that he should be paid wages over and above the government pay, he might recover 
 from the defendant. If a cook performs services out of the line of his employment, 
 as where he acts as caulker, he may recover additional compensation. The Exchange, 
 1. Blatchf. & H. Adm. 366. And the same rule applies where the captain paints his 
 ship himself. String v. Hill, Crabbe, 454. But the master is entitled to call on the 
 cook to do seaman's work, when the vessel is in port. Allen v. Hallet, Abbott, Adm. 
 573. In the case of The Brookline, U. S. D. C, Mass., 8 Law Reporter, 70, the crew- 
 were shipped on a voyage " to a port or ports easterly of the Cape of Good Hope, or 
 any other port or ports to which the master should see fit to go in order to procure a 
 cargo." The owners intended to go to Ichaboe for a cargo of guano. This was con- 
 cealed from the seamen. The seamen refused to work at loading the guano, and the 
 master finally agreed to pay them a certain sum, over and above their wages, for every 
 ton they should load. The court held, that the seamen were not bound to work for 
 their ordinary wages ; because fraud had been practised upon them to get them there, 
 and that they might recover compensation in addition to the sum agreed upon at the 
 island. If mariners are shipped during a war, but while on the voyage peace ensues, 
 their wages are not diminished. M'CuUoch v. The Lethe, Bee, Adm. 423 ; Shaw v. Tho 
 Lethe, id. 424. But if the ship do not enter upon the high seas, the scene of danger, 
 until after peace is declared, the wages will be decreased, after the time of such declara- 
 tion. Brice v. The Nancy, Bee, Adm. 429. 
 
 1 Harris v. Watson, Peake, Cas. 72. So, where some of the crew deserted and the 
 captain could not obtain any men to fill their places, a promise by him to divide the 
 wages of those who had deserted, among the crew remaining, was held to be void. 
 Stilk V. Myrick, 2 Camp. 317 ; Harris v. Carter, 3 Ellis & B. 559, 25 Eng. L. & Eq. 
 220. And in a case where the master had distributed the wages of the deserters among 
 the rest of the crew, it was held, that in an action by the crew for wages the owners 
 could retain a sum equal to the amount so paid over. Dr. Lushington, however, said 
 that he did not wish it to be inferred that seamen, when the outward voyage is com- 
 pleted, are bound to make the return voyage when the number of the crew is so small 
 that risk of life may be incurred. The Araminta, 29 Eng. L. & Eq. 582. And if the 
 vessel becomes so short-handed at an intermediate port as to be unseaworthy, a note 
 voluntarily given by the captain to a seaman to secure an extra remuneration, in con- 
 sideration of the seaman's assisting to carry on the ship, is valfd. Hartley v. Ponsonby, 
 Q. B. 20 Law Reporter, 389. In Thompson v. Havelock, 1 Camp. 527, the plaintiff^, 
 who was captain of a vessel, let her to the government for a fixed price, and also stip- 
 ulated that he should be paid, in consideration of the extra services he would be obliged 
 to perform, one shilling per ton per month. The government paid this over to the 
 owuei-, and in an action against him by the captain, it was held, that the latter could 
 not recover it. A promise of higher wages made to seamen tlu'catening to desert, is 
 void. Bartlctt v. Wyman, 14 Johns. 260. See also, Johnson v. Dalton, 1 Cow. 543. 
 In Frazer v. Hatton,.2 C. B. n. s. 512, 40 Eng. L. & Eq. 318, the plaintiff signed ship- 
 ping articles, by which he agreed to serve as stew.ard on a certain voyage at the rate of 
 £3 per month. The articles also provided that "the crew, if required, might be trans- 
 ferred to any other ship in the same employ." It was held, under this provision, that
 
 en. Xri.] SHIPPING ARTICLES. 449 
 
 new office.^ But it seems that if he be afterwards degraded for 
 incapacity, he cannot recover his advanced wages during the 
 period of his advancement, but only wages as a seaman.^ 
 
 The power of the master, however, to degrade an officer-^ or a 
 seaman, is limited and cannot be exercised for trivial offences.* 
 And as the power to disrate is remedial only, and not penal, the 
 
 any member of the crew might be transferred without the rest, and that articles signed 
 by the captain stipulating for higher wages for the plaintiff, lie having been transferred, 
 were null and void. In Mesner v. The Suffolk Banic, 1 Law Rej)orter, 249, it was 
 held, where a steaml)oat came into collision with a sailing vessel, and was in imminent 
 danger of sinking, that a promise of a reward by a passenger to the officers or crew 
 to secure their exertions in saving his property, was not binding. 
 
 But if the ship is captured, and tlie captain, to induce one of the crew to become a 
 hostage, promises to pay him wages, at the same rate as before the capture, as long as 
 he shall remain a hostage, sucli promise is binding on the owners. Yates i". Ilall, 1 
 T. R. 73. 
 
 1 The Providence, 1 Ilagg. Adm. 391 ; The Gondolier, 3 Hagg. Adm. 190; Hicks r. 
 Walker, Exch. 1 856, 37 Eng. L. & Eq. 542. Where the mate succeeds to the command 
 of the vessel, on the death of the captain, he becomes entitled to extra wages, but a ques- 
 tion has arisen whether he can sue in rem for his services as master. In England it is set- 
 tled that lie cannot. Read v. Chapman, 2 Strange, 937 ; The Favourite, 2 Rob. Adm. 
 232. The case of The Brig George, 1 Sumner, 151, has been supposed to advance a 
 contrary doctrine. The action was in rem by the mate to recover his wages. The claim 
 was admitted, but the owners sought to set off' a claim for money expended on account 
 of his sickness, after he had become master. It docs not appear that the increased 
 wages due him as master were included in his demand, and the only point in contro- 
 versy was as to the validity of the set-off". The English authorities have been followed 
 by Mr. Justice Belts in the case of The Schooner Leonidas, Oleott, Adm. 12. See 
 also, Airey v. The Brig Ann C. Pratt, 1 Curtis, C. C. 395, 398. 
 
 2 Wood V. The Nimrod, Gilpin, 83. 
 
 8 In the case of The Ship Mentor, 4 Mason, 84, 101, Mr. Justice Story said : "I 
 must be permitted to say, that when a man ships in any particular capacity on board 
 a ship, it is not for sliglit causes that he is to be degraded or compelled to perform 
 other duty, lie is not to be subject to tiic caprice, or distaste, or petulance of the mas- 
 • ter. He stipulates for fair and reasonable knowledge, and due diligence ; but not for 
 extraordinary talents. If he is guilty of fraud or misrcin-csentation he is doubtless 
 subject to all just consequences. But when he acts bona jide, and is willing to perform 
 his duty, if he should be more tardy in Ids movements tlnui other men, it constitutes 
 no just ground for degradation." See also, Atkyns v. Bun'ows, 1 Pet. Adm. 244, 247 ■ 
 The Exeter, 2 Rol). Adm. 261 ; Thompson v. Busch, 4 Wash. C. C. 338. But if an 
 officer or seaman is incompetent he may be disrated. The Elizabeth Frith, 1 Bhitchf. 
 & II. Adm. 195, 210 ; Tlie Exciiange, id. 366 ; ]\Iorris v. Cornell, 6 Law Rcjjorter, 304. 
 And a steward may be disrated for embezzling the ship stores. Burton«i". Salter, U. 
 S. C. C, Mass., 21 Law Reporter, 148. 
 
 * Sherwood v. Mcintosh, Ware, 109. It was licld, in this case, that a steward could 
 be degraded for acts of dishonesty or habits of intemperance, but not for a single act 
 of intemperance. 
 
 38*
 
 450 ON THE LAW OF SHIPPING. [bOOK I. 
 
 master canuot degrade a person to the lowest station if there be 
 an intermediate one which he is competent to fill.^ But if an 
 officer is promoted during the voyage by the captain, it seems 
 that he may send him back to his former situation for a less offence 
 than he could, if he had originally been shipped for the higher 
 station.^ Accidental omissions in the shipping articles may be 
 supplied by parol; and if seamen sail without any shipping 
 articles, they are then entitled to the highest rate of wages paid 
 at the place at which they ship, within the preceding three 
 months, for the same voyage.^ All interlineations, erasures, or 
 alterations, are presumed to be fraudulent, unless satisfactorily 
 
 1 Smith V. Jordan, U. S. C. C, Mass., 1857, 21 Law Reporter, 204. It was held, 
 in this case, that a cooper could not be disrated, and ordered to do the duty of a fore- 
 mast hand, but he should be first tried as cooper's mate. 
 
 2 Wood V. The Nimrod, Gilpin, 83. 
 
 3 Stat. 1790, ch. 29, § 1, I U. S. Stats, at Large, 131 ; Stat. 1840, ch. 48, § 10, 5 U. 
 S. Stats, at Large, 394. The former of these acts has been held not to be applicable 
 to a seaman on board a tug boat which ran from tlie mouth of the River Detroit to 
 Port Huron. Milligan v. Propeller B. F. Bruce, 1 Newb. Adm. 539. In England if the 
 articles are signed, and the rate of wages omitted, parol evidence of the rate agreed on 
 is admissible. The Porcupine, 1 Hagg. Adm. 378; The Harvey, 2 Hagg. Adm. 79; 
 The Prince George, 3 Hagg. Adm. 376. The same rule has been adopted in this 
 country. Wickhara v. Blight, Gilpin, 452 ; The Warrington, 1 Blatchf. & H. Adm. 
 335. It seems to have been supposed, by Mr. Justice Betts, that the highest rate of 
 wages payable within the three months previous might be recovered in such a case. 
 But the statute of 1790 applies only when the master neglects to insert in the contract 
 the voyage and the length of time, and docs not apply to the omission to insert the rate 
 of wages. Under the statute of 1790, Mr. Justice Peters, in the case of Jameson v. 
 The Ship Regulus, 1 Pet. Adm. 212, staled that he had been of the opinion that if 
 there was a verbal agreement for wages, this superseded the law, and was to be taken 
 as the contract. Mr. Justice Story, in a note to Abbott on Shipping, 607, said : " No 
 case is referred to where such a decision had been made ; and before it could be made, 
 it would require very grave consideration, how far such a verbal agreement, in contra- 
 vention of the statute, should be admitted to supersede the positive direction of the 
 statute as to the highest wages." In The Cmsader, Ware, 437, parol evidence was 
 held inadmissible to prove that a lower rate of wages or a different mode of compen- 
 sation was agreed on. The Act of 1840 has enlarged that of 1790 to some extent. 
 The tenth section provides that " all shipments of seamen made contrary to the pro- 
 visions of this and other acts of congress, shall be void ; and any seaman so shipped 
 may leave the service at any time, and demand the highest rate of wages paid to any 
 seaman shimjed for the voyage, or the sum agreed to be given him at his shipment." 
 The Act 01 1790, does not exempt the seaman from penalties and forfeitures incurred 
 under the maritime laws preexistent to that act. Jameson v. The Ship Rcgulus, 1 Pet. 
 Adm. 212. If a seaman ship without signing the articles, an implied contract is pre- 
 sumed by which he is bound to remain with the ship till the voyage is terminated. 
 Jansen v. The Heinrich, Crabbe, 226.
 
 CH. XII.] SHIPPING ARTICLES. 451 
 
 explained.^ It may be added, that the usual rules of evidence 
 and of construction apply to the shipping articles;^ but a sea- 
 man may show by parol that written statements were made to 
 jndace him to sign,^ as that the voyage or time of service repre- 
 sented was not that which is on the paper;"* or that the articles 
 have been altered since they were subscribed.^ In the United 
 
 J Stat. 1840, ch. 48, M, 5 U. S. Stats, at Large, 395. In the case of The Sch. 
 Eagle, Olcott, Adm. 232, it was held, that this applied only to such alterations 
 as would vary the effect of the shipping articles in regard to seamen, and not to imma- 
 terial erasures. 
 
 ^ But a court of admiralty will construe the articles liberally. Mr. Justice Story, ia 
 the case of The Brutus, 2 Gallis. 526, 537, said, speaking of shipping articles : "These, 
 like all other mercantile instruments, are drawn up in a very lax and inartificial man- 
 ner. To construe the language hy the technical rules of literal interpretation would 
 be to defeat the manifest intention of the parties. We are, therefore, bound to construe 
 it with great lil)erality, and to look to tiie general scope and object of the instrument, 
 rather than to weigh minutely the force of detached expressions." 
 
 3 Baker v. Corey, 19 Pick. 496 ; The Enterprise, 2 Curtis, C. C. 317, 320. 
 
 * In The Cypress, 1 Blatchf. & H. Adm. 83, twelve months was the time of service 
 mentioned in the articles. Held, that it could be shown by parol that nine was the 
 time agreed upon. The question, in regard to the admissibility of parol evidence to 
 change the voyage descril)ed in the shipping articles, was elaborately discussed in the 
 late case of Page v. Sheffield, 2 Curtis, C. C. 377. Tlie action was for wages alleged 
 to be due on a voyage from San Francisco to Calcutta, and thence to Boston. The 
 libellant was discharged against his will at Calcutta. In the articles the voyage was 
 descril)ed to be from San Francisco to Calcutta. Evidence was offered to prove that 
 the libellant shipped for the whole voyage from San Francisco to Boston. Mr. Justice 
 Curtis held, that it was admissible on two grounds. First, that the voyages from San 
 Francisco to Calcutta, and from the latter place to Boston, might be considered as dis- 
 tinct, and the articles for the first not being intended to include the second, the latter 
 might be proved by parol. Second, if the contract was entire, then the articles did not 
 describe the voyage, and the master was, therefore, prohil)ited from taking the libellant 
 to sea under such articles, and parol evidence is always admissible to impeach a con- 
 tract, by showing it to be made in violation of law. See also, the same case in the 
 District Court, 18 Law Reporter, 99. But the shii)-owner cannot vary the voyage by 
 parol evidence. The Triton, 1 Blatchf. & II. Adm. 282 ; The Exchange, id. 366. 
 
 ^ See supra, note 1. The general rule in regard to parol evidence is stated in 
 Willard v. Dorr, 3 Mason, 161, 169. Mr. Justice Story there said : " But prima fdcie 
 the shipping articles are presumed to import verity, and to be as well known to the 
 owner as master; and it is incumbent on the owner, if he means to contest the fact, to 
 offer some evidence of fraud, mistake, or interpolation." If there is a stipulation in 
 writing for a series of voyages, tliis may be terminated or varied by the mutual consent 
 of the master and crew, and a new voyage substituted by a parol agreement. Piehl v. 
 Balclien, Ulcott, Adm. 24. In The Trial, 1 Blatchf. & II. Adm. 94, it was held, that 
 in a suit for wages if the owners do not produce the shipping articles, even though they 
 are not called upon to do so, parol evidence of the terms of hiring may be given. But 
 sec The Brig Osceola, Olcott, Adm. 450.
 
 452 ON THE LAW OF SniPPINQ. [BOOK I. 
 
 States the shipping -articles for a fishing voyage are required to 
 be indorsed or countersigned by the owners, but the seaman is 
 not restricted to those who sign, in an action for his wages, but 
 may show aliunde who are the actual owners.^ The master of 
 a vessel has no power to bind the owner to pay a seaman three 
 months' wages after the voyage has terminated and all services 
 on his part have ceased, but if a seaman is hired in a foreign 
 country the master may bind the owners to pay him such sum 
 as will enable him to return.^ 
 
 Wages, excepting as just above stated, and by limiting the 
 right to demand wages in a foreign port to one third the amount 
 then due, unless it be otherwise stipulated,^ do not enter particu- 
 larly into the provisions of our statutes. But seamen have a 
 lien on the ship and freight for their wages, enforceable in admi- 
 ralty, as we shall hereafter state. In general, as freight is the 
 mother of wages, none are earned unless freight is earned, or 
 might have been ; but, to avoid repetition, we shall not consider 
 this subject until we speak of wages in connection with admi- 
 ralty jurisdiction. 
 
 SECTION III. 
 
 OF PROVISIONS. 
 
 Provisions, of due quality and quantity, are to be furnished by 
 the owner under the general principles of law as applied to this 
 particular contract."^ The quantity for each person on board is, 
 however, prescribed by statute, under penalty of a day's wages 
 
 1 Wait V. Gibbs, 4 Pick. 298. It would seem, however, that he coiild not bring an 
 action on the shipj^ing articles except against those whose names appeared on that 
 instrument. 
 
 2 Canizares v. The Santissima Trinidad, Bee, Adm. 353. 
 
 3 Act of 1790, eh. 29, § 6, 1 U. S. Stats, at Large, 133. See also, cases ante, p. 446, 
 note 3. 
 
 * This has been the custom among maritime nations from the earliest times. Pothier 
 on Slaritime Contracts, n. 21.5 (Cushing's ed.), 131 ; Consolato del Mare, ch. 100. 
 See also, 1 Pardes. 335, 381, 483; 2 id. 510; The Madonna DTdra, 1 Dods. 37; 
 Dixon V. The Cyrus, 2 Pet. Adm. 407, 411.
 
 CH. XII.] PROVISIONS. 453 
 
 extra, to every seaman, for the days on which he is on short 
 allowance.! jf^ however, the necessity of short allowance springs 
 from a peril of the sea, or any accident of the voyage, or the de- 
 livery of a part of the provisions to another vessel in distress, 
 the extra wages are not given.^ 
 
 It has been held that a deficiency in one kind of provisions is 
 not compensated by an abundance in another; as a deficiency 
 in bread by an excess of beef;^ but it is clear that the master 
 must have in every port a certain discretion in supplying whole- 
 some and abundant food, of such kinds as can be most economi- 
 cally procured, if those specified in the act cannot be obtained 
 by reasonable exertions.^ The master must see to the expendi- 
 ture of the provisions ; he should guard against waste ; and put- 
 ting the crew on an allowance is by no means the same thing 
 as putting them on short allowance.^ 
 
 1 Act of 1790, ch. 29, § 9, 1 U. S. Stats, at Large, 131, 135. In Gardner v. The 
 Ship New Jersey, 1 Pet. Adm. 223, the voyage was an entire one from Pliiladelphia to 
 Canton, with liberty to go to other intermediate ports, and back to Philadelphia. It 
 was contended tliat as some of the mariners shipped at foreign ports, they did not 
 come witliin the statute. But the objection was overruled. 
 
 ^ Though we are not aware of any case where tliis point has been expressly decided, 
 yet it follows as a necessary deduction from the fact tliat to enable the seaman to recover 
 the extra wages, not only must he be pnt on short allowance, but it must be shown also 
 that the vessel sailed without having on board the stores prescribed in the act. The 
 Ship Elizabeth y. Rickers, 2 Paine, C. C. 291 ; Ferrara v. Tiie Barque Talent, Crabbe, 
 216 ; The Bark Childc Harold, Olcott, Adm. 275. If the vessel sailed with the requi- 
 site quantity on board in good condition, but part was spoiled afterwards, so that the 
 crew were put on short allowance, their remedy is by an action for the special damage 
 done them, but they caimot claim extra wages. The Bark Childe Harold, Olcott, 
 Adm. 275. If it is clearly proved that the crew were put upon short allowance, the 
 burden is on the ship-owner to show that the vessel had the requisite provisions on 
 board at the time of sailing. Piehl r. Balchen, Olcott, Adm. 24, 31. In The Bark 
 Childe Harold, Olcott, Adm. 275, 279, it was contended that the same rule applied 
 ■where the libellant showed that bread of a bad and unwholesome quality had been 
 served out to them. But the court held, that the rule ought not to be extended to re- 
 quire the owner to give evidence of tlie quantity and quality of provisions stored on 
 board, when the testimony of the liliellants showed that tlicre was an abundant supply 
 in the ship and only accused it of being unwholesome in fpiality when shipped. 
 
 8 Coleman v. Brig Harriet, Bee, Adm. 80. In this case the captain left port with 
 only ninety pounds of bread per man instead of one hundred, but there was a great 
 ovcri)lus of meat and water. It was held that the seamen should receive one third of 
 the amount of wages contracted for over and above tlieir common wages. 
 
 * Mariners v. The Ship Washington, 1 Pet. Adm. 219. But in such a case the arti- 
 cles substituted must be a full equivalent both in (juantity and quality for those required 
 by law. The JIary, Ware, 454. 
 
 ^ Wliat is a proper allowance is to be determined by the navy ration. Mariners i-.
 
 454 ON TUB LAW OF SHIPPING. [bOOK I. 
 
 SECTION IV. 
 
 OF THE SEA-WORTHINESS OF THE SHIP. 
 
 So, too, the owner would be bound to provide a sea-worthy 
 ship ; 1 and our statutes provide the means of lawfully ascer- 
 taining her condition, on the complaint of the mate and a 
 majority of the seamen, by a regular survey, at home or abroad.^ 
 
 Ship Washington, 1 Pet. Adm. 219; The Mary, Ware, 454, 460; Ship Elizabeth v. 
 Eickers, 2 Paine, C. C. 291, 298. In this case Mr. Justice Thompson said : " To sub- 
 ject the master or owners to the extra wages, the crew must be put upon short allow- 
 ance ; by which I should understand that there must be some order or command to 
 that effect given, or some gross negligence in the master. An accidental or uninten- 
 tional deficiency in weight, would not subject the master or owner to the penalty." 
 
 If extra wages are claimed, the answer must set forth precisely whether the vessel 
 shipped the quantity and quality of provisions, required by the statute. The Elizabeth 
 Frith, 1 Blatchf. & H. Adm. 195. See Appendix for the navy ration. 
 
 1 In Couch V. Steel, 3 Ellis & B. 402, 24 Eng. L. & Eq. 77, an action was brought 
 by a seaman to recover damages for injuries sustained in consequence of the vessel 
 leaving port in an unseaworthy condition. There was no allegation that the owners 
 knew the vessel was unseaworthy. On demun-er the court held that the plaintiff could 
 not recover, as there was no implied warranty on the part of the owners that the ship 
 should be sea-worthy. This decision is clearly repugnant to the principles of the 
 American authorities on this subject, independent of statute provisions. In the case of 
 Dixon V. Ship Cyrus, 2 Pet. Adm. 407, 411, decided in 1789, it was held that both 
 law and reason implied that at the commencement of the voyage the vessel should be 
 sea-worthy. See also. Rice v. The Polly & Kitty, id. 420. In the case of The Ship 
 Moslem, Olcott, Adm. 289, the vessel put into Cape Town in a leaky condition. The 
 libellants shipped there for the home voyage to New York. The condition of the ves- 
 sel was known to them, and they shipped with the express notice that their services 
 would be i-equired in pumping out the vessel on her voyage. Yet it was held that if 
 the vessel was actually unseaworthy when she sailed, that is if she was unfit for the 
 voyage, the libellants were not bound by their contract, and could rightfully refuse to 
 continue their voyage, and compel the master to return to port. In Eaken v. Thorn, 
 5 Esp. 6, it was held that where the ship sailed in an unseaworthy condition, and in 
 consequence thereof the voyage was afterwards abandoned, no freight being earned, 
 the seamen were not entitled to their wages. This case was doubted by Kent, C. J., 
 in Hoyt v. Wildfire, 3 Johns. 518. As the vo3'age was lost by the default of the owner 
 in sending the vessel to sea in such a condition, it seems clear that the wages should 
 have been paid. See Hindman v. Shaw, 2 Pet. Adm. 264, 266. 
 
 2 Act of July 20, 1790, ch. 56, § 3, 1 U. S. Stats, at Large, 132 ; Act of July 20, 
 1840, ch. 48, § 12, 13, 14, 5 U. S. Stats, at Large, 396. The former of these acts pro- 
 vides that if the mate or first ofBcer under the captain, and a majority of the crew of
 
 CH. XIT.] SEA-WORTHINESS OF THE SHIP. 455 
 
 The third section of the statute of 1794, provides that the mas- 
 ter shall pay the costs of the survey in the first instance, and if 
 the complaint appears to have been without foundation, the 
 <30sts and a reasonable sum for the detention shall be paid out 
 of the wages of the crew. But it has been held that if there 
 was reasonable cause for the survey, the owners could not 
 charge the expense to the seamen.^ Seamen, after shipping, 
 often refuse to proceed on the voyage ; and if then arrested for 
 the mutiny, the condition of the vessel, if that be their excuse, 
 is inquired into by the court ; and if she is found to be unsea- 
 worthy, their punishment is reduced and mitigated accordingly.^ 
 
 any vessel bound on a voyage to a foreign port, shall, before the vessel has left the 
 land, require the sea-worthiness of the vessel to be inquired into, the master shall stop 
 at the nearest port for the purpose of having such inquiry made. On the construction 
 of this act, Ware, J., remarked in the case of The William Harris, Ware, 367, 373, that 
 the reason of the law applied as strongly to the case of a vessel departing from a for- 
 eign port on her return, as leaving her home port on a foreign voyage. This is now 
 settled by the statute of 1840. By this act the consul, or commercial agent at the for- 
 eign port, is directed on complaint being made in writing by any officer and a majority 
 of the crew, to appoint two persons to inspect the vessel, etc. By the Act of 1850, 
 ch. 27, § 6, 9 TJ. S. Stats, at Large, 441, the Act of 1840 is so far amended, as to re- 
 quire the complaint to be signed, by the first, or the second and third officers, and a 
 majority of the crew. If the crew, instead of availing themselves of their statute 
 remedy, suffijr the owner to repair the vessel of his own accord, and he employs an 
 agent who pronounces her sea-worthy, they cannot refuse to proceed on the ground 
 that the repairs are insufficient, if they are not so in fact. Porter v. Andrews, 9 
 Johns. 350. 
 
 1 The William Harris, Ware, 367. The statute of 1840, provides that the expenses 
 shall be deducted from the wages of the seamen, on the inspectors certifying that the 
 complaint was made without good and sufficient cairse. 
 
 2 United States v. Nye, 2 Curtis, C. C. 225. Mr. Justice Curtis in this case said : 
 " I think the correct rule is, that after the men have rendered themselves on board, 
 
 . pursuant to their contract, and before the voyage is begun, tlicy may lawfully refuse to 
 go to sea in the vessel, if they have reasonable cause to believe, and do believe the 
 vessel to be unseaworthy. But the presumption is that the vessel was sea-worthy ; and 
 the seamen must prove that they acted in good faith, and upon reasonable grounds of 
 belief tliat the ship was not in a fit condition to go to sea, by reason of unseaworthi- 
 ness. If they prove this, they are justified in their refusal, and ai-e not guilty of any 
 offence." See also, United States v. Staly, 1 Woodb. &. M. 338 ; Dixon v. The Ship 
 Cyrus, 2 Pet. Adm. 407. So unseaworthiness is a sufficient defence to the charge of 
 endeavoring to commit a revolt by compelling tiie master to return to port. United 
 States V. Ashton, 2 Sumner, 13. See also, The William Harris, Ware, 367.
 
 456 ON THE LAW OF SIIIPPINQ. [bOOK I. 
 
 SECTION V. 
 
 OF THE CARE OF SEAMEN IN SICKNESS. 
 
 Sickness is provided for by statute, so far as to require that 
 every ship of the burden of one hundred and fifty tons, navi- 
 gated by ten or more persons in the whole, and bound on a voy- 
 age without the limits of the United States, should have a 
 proper medicine chest on board.^ This act has been extended 
 to vessels of seventy-five tons, navigated by six or more persons 
 in the whole, bound from the United States to any port in the 
 West Indies.^ By other statutes the master may deduct twenty 
 cents a month from every seaman's wages, to make up a fund for 
 the support of marine hospitals, in which every sailor may have 
 medical treatment.^ There is, however, by the general law- 
 merchant, an obligation upon every ship-owner or master to 
 provide for a seaman who becomes sick, or wounded, or maimed 
 in the discharge of his duty, whether at home or abroad, at sea 
 or on land, — if it be not by his own fault, — suitable care, 
 medicines, and medical treatment, including nursing, diet, and 
 lodging.* At first it was held that the statute requiring a medi- 
 
 1 Act of 1790, ch. 29, § 8, 1 U. S. Stats, at Large, 134. 
 
 2 Act of 1805, ch. 28, 2 U. S. Stats, at Large, 330. 
 
 3 Act of 1798, ch. 77, 1 U. S. Stats, at Large, 605 ; Act of 1799, ch. 36, 1 U. S. 
 Stats, at Large, 729 ; Act of 1802, ch. 51, 2 U. S. Stats, at Large, 192 ; Act of 1811, 
 ch. 26, 2 U. S. Stats, at Large, 650. The Act of 1802, § 3, extends a similar pro- 
 vision to the case of boats, rafts, or flats, descending the Mississippi to New Orleans. 
 In Reed v. Canfield, 1 Sumner, 195, 201, Mr. Justice Story said it seemed that these acts 
 had been construed in practice not to impose upon sliips and vessels in the whale and 
 other fisheries, the payment of hospital money. By the Act of March 1, 1843, ch. 49, 
 5 U. S. Stats, at Large, 602, the provisions and penalties of the Act of 1798 are ex- 
 tended to registered Vessels in the coasting-trade. 
 
 * Laws of Oleron, arts. 6, 7 ; Laws of Wisbuy, art. 19. Laws of the Hanse Towns, 
 art. 39 ; Molloy, 243 ; L'Ord. de la Mar. liv. 3, tit. 4, art. 11 ; Valin, Comm. tome 1, 
 p. 721 ; Pothier on Maritime Contracts, n. 190, Cushing's translation, 115; Pothier, 
 Us et Const, de la Mer, p. 31 ; Harden v. Gordon, 2 IMason, 541 ; Walton v. The Ship 
 Neptune, 1 Pet. Adm. 142; Hastings v. The Ship Happy Return, id. 253,256, n. ; The 
 Forest, Ware, 420 ; The Brig George, 1 Sumner, 151 ; Reed v. Canfield, id. 197 ; Lamson 
 V. Westcott, id. 591, Appen.; Johnson v. Huckins, 6 Law Reporter, 311 ; Freeman v.
 
 en. XII.] CARE OF SEAMEN IN SICKNESS. 457 
 
 cine chest, substituted this requisition for the more general re- 
 quirement of law; but it may be doubted whether this is so, in 
 any degree ; and it seems to be well settled, that the general 
 obligation of the law-merchant remains in force, unless the medi- 
 cine chest is provided with medicines and means of medical treat- 
 ment which the particular case requires, and there is sufTicient 
 skill on board to make a proper use of those medicines.^ 
 
 Baker, 1 Blatchf. & H."Adm. 372, 382 ; Ncvitt v. Clarke, Olcott, Adm. 316. In Eeed 
 r. Canfield, supra, it was held that if the seaman was injured while in the service of 
 the ship, he was entitled to the expenses of his cure until it was completed, as far as 
 the ordinary medical means extend, but that the owners were not liable for conse- 
 quential damages. In Nevitt v. Clark, Olcott, Adm. 316, it was held that the own- 
 ers were only liable for expenses while the seaman was in their employ. See also. 
 The Atlantic, Abbott, Adm. 451, where this question is discussed at length. In Rin- 
 gold V. Crocker, Abbott, Adm. 344, the seaman went on shore without leave, and on 
 returning to the vessel, when asked by the mate why he went ashore, answered in an 
 insolent manner, whereupon the mate struck him with a belaying pin and injured him 
 severely. The master was boarding on shore at the time, and when the seaman went 
 to him he placed him in a house there, and directed a physician to attend him. Held 
 that the seaman was entitled to be cured if injured while in the service of the ship, and 
 that he was to be deemed in the service while under the power and authority of the 
 officers, and that an injury received in executing an improper order, or inflicted on him 
 by the wrongful violence of an officer, would equally entitle him to this privilege. 
 
 1 If from the nature of the disease or from other circumstances, there is no person 
 on board by whom the medicines can be safely administered under the printed medical 
 directions accompanying the chest, the attendance of a physician will be a charge on 
 the owners. The Forest, Ware, 420. Cases requiring extraordinary assistance, such 
 as surgical aid, which the medicine chest cannot supply, are not within the spirit of 
 the statute, which it seems "is limited to the ordinary cases of illness on board the 
 ship ; a sickness of such a character that the patient may be and is kept on board, 
 and receives or may receive the benefit of the medicine chest and directions, and the 
 advice and assistance of the master of the ship or some other competent jierson, 
 attached to the ship, in the application of the medical directions accompanying the 
 chest, and such nursing and attendance as the situation of the ship may admit." Per 
 Davis, J., in Lampson v. Westcott, 1 Sumner, 591, 595, Appen. Sec also, the 
 remarks of Peters, J., in Hastings v. The Happy Return, 1 Pet. Adm. 253, 256, n. ; and 
 the case of Reed v. Canfield, 1 Sumner, 195, where a seaman, whose feet had been 
 frozen in the service of the ship, so that partial amputation became necessary, was 
 allowed to recover the expenses of his care from the owners under the general mari- 
 time law. The charge for nursing and attendance is not affected by the act. Slori/, 
 J., in Harden v. Gordon, 2 Mason, 541. Tlie burden of proof, as to the sufficiency of 
 the medicine chest, is always upon tlie owner. The Forest, Ware, 420 ; The Nimrod, id. 
 9 ; Harden v. Gordon, supra ; Freeman v. Baker, 1 Blatchf. & II. Adm. 372, 382 ; The 
 William Harris, Ware, 367, 375. It was also held in this case that the captain is not a 
 proper person to prove the sufficiency of the medicine chest, but tlie testimony of some 
 reputable physician, who has examined it, is requisite. In Knight v. Parsons, U. S. 
 D. C, Mass., 18 Law Reporter, 96, one of the crew of a mackerel vessel was taken 
 VOL. I. 39
 
 458 ON THE LAW OF SHIPPING. [BOOK I. 
 
 Where that is the case, a seaman has no right to demand 
 to be taken on shore for better medical treatment, or to have a 
 physician from on shore sent for; and if such demand is com- 
 plied with, the expenses may be charged to the seaman.^ This 
 right of care extends to the officers of the ship, including the 
 master.2 If a seaman be put on shore for the safety of the 
 crew, his disease being contagious, then, of course, the whole 
 expense falls on the ship.^ 
 
 SECTION VL 
 
 OF THE RETURN OF SEAMEN TO THIS COUNTRY. 
 
 The right of the sailor to be brought back to his home, is very 
 jealously guarded by our laws. Every ship must be provided 
 with the shipping articles and a shipping list, verified under the 
 
 sick, and went on shore and bought medicine, and consulted a physician. Afterwards, 
 being worse, he was put on shore at his own request, and did not return to the vessel. 
 There was no medicine chest on board. It was held that he was entitled to recover all 
 these expenses, although evidence of a usage was shown to the effect that fishermen in 
 mackerel vessels were cured at their own expense in case of sickness. 
 
 ^ Holmes v. Hutchinson, Gilpin, 447. And it has' been held that the rule is the 
 same, whatever may be the nature of the disease ; even if it be of a violent and danger- 
 ous kind, and the physician was sent for without the request of the seaman. Pray v. 
 Stinson, 21 Maine, 402. But this is certainly at variance with the authorities cited in 
 the preceding notes. 
 
 2 The Brig George, 1 Sumner, 151. In Winthrop v. Carleton, 12 Mfiss. 4, 
 the master of a vessel, while in port, was taken sick with the smallpox and went to 
 a boarding-house, where he died. The consignee paid the board, the physician's bills, 
 and the funeral expenses, and brought this action to recover back the money so paid. 
 The owner of the ship was held liable, a usage being shown that it was customary for 
 the consignee to pay such charges, and look to the owners. 
 
 3 Harden v. Gordon, 2 Mason, 541 ; Walton v. The Neptune, 1 Pet. Adm. 142, 152 ; 
 Hastings v. The Happy Return, id. 253, 256, n. ; The Forest, Ware, 420 ; The Brig 
 George, 1 Sumner, 151. But, semWe, not when the seaman is removed at his own 
 request from a vessel properly provided in all respects. Pierce v. Patten, Gilpin, 436. 
 See also. Pray v. Stinson, 21 Maine, 402. But in Johnson v. Donbty, 1 Ashm. 165, it 
 was held, that a seaman, who, when sick with the yellow fever, was asked whether he 
 would stay on board or go to the hospital, chose the latter, was entitled to full wages, 
 on the ground that it was the duty of the master to send him ashore at all events. 
 See also, The Atlantic, Abbott, Adm. 451, 477.
 
 CH. XII.] RETURN OF SK\MEN TO THIS COUNTRY. 459 
 
 oath of the master ;i this he is required to present to the consul 
 or commercial agent of the United States, at every foreign port 
 which he visits, when so requested,^ and is under bond to deliver 
 to the boarding officer who comes on board his ship at the first 
 home port which he reaches, and to produce the persons named 
 therein,^ that it may be ascertained that he has his whole crew 
 on board. If it appears that any of them are missing, he must 
 account for their absence.^ If he discharges any of them abroad, 
 with his or their own consent, he must pay to the American 
 consul of the port or the commercial agent, over and above the 
 wages then due, three months' wages, of which two thirds are 
 paid to the seaman, and one third retained by the consul and re- 
 mitted to the treasury of the United States, to form a fund for the 
 maintenance of American seamen abroad and for bringing them 
 home.^ If the discharge is caused by any disaster which breaks 
 
 1 Act of 1803, ch. 9, § 1, 2 U. S. Stats, at Large, 203. 
 
 2 The Act of 1840, ch. 48, § 3, 5 U. S. Stats, at Large, 395, requires thg master to 
 produce the list above mentioned to the consul or other commercial agent, " whenever 
 he may deem their contents necessary to enable him to discharge the duties imposed 
 upon him by law toward anj' mariner applying to him for his aid or assistance." 
 
 3 Act of 1803, ch. 9, § 1, 2 U. S. Stats, at Large, 203. 
 
 * The bond is not forfeited, however, if any of the persons not produced have been 
 discharged in a foreign country with the consent of the consul, vice-consul, commercial 
 agent, or vice-commercial agent there residing, and such consent is signified in writing 
 under his hand and official seal, and produced to the collector with the rest of the 
 crew, nor if any such persons have died or absconded, or have been forcibly impressed 
 into other service, of which satisfactory proof shall be then exhibited to the collector. 
 Act of 1803, ch. 9, § 1. Under this section it has been held that the certificate of the 
 consul must state that the seamen were .left in the foreign port with their consent, and 
 a certificate that they were left in a hospital unable to return, and that the master 
 had paid for their maintenance, and left the amount of their wages, was held insuffi- 
 cient, and parol evidence of the consent of the consul or seamen was not admitted. 
 United States v. Hatch, 1 Paine, C, C. 336. 
 
 *» Act of 1803, ch. 9, § 3, 2 U. S. Stats, at Large, 203. If a seaman is left in a for- 
 eign port, and the vessel is subsequently sold, it is doubtful if he can recover the extra 
 wages allowed by this act in the case of sale. Nevitt v. Clarke, Olcott, Adm. 316. 
 The Act of 1840, ch. 48, ^ 5, 5 U. S. Stats, at Large, 395, allows a consul, upon the 
 application of both the master and any mariner under him, to discharge such mariner, 
 if he thinks it expedient, without requiring tlie payment of three months' wages. 
 And it seems tliat the certificate of the consul that the seaman was discharged with 
 his own\ . ^^.it, is conclusive of tlic fact unless fraud on the part of the consul is 
 shown. Lamb r. Briard, Abbott, Adm. 367. But the certificate must show on wliat 
 ground the consul proceeded, and it is not enough for him to certify that he gave the 
 discharge "lawfully," or that he gave it "in accordance with the law of the United 
 States," but it must set forth that the discharge was made on the application of the mas-
 
 460 ON THE LAW OF SHIPPING. [bOOK I. 
 
 up the voyage, so that the ship cannot be repaired and the voy- 
 age resumed in a reasonable tinie and at a reasonable cost, the 
 above requirement does not apply to it.^ 
 
 tei" and the mariner, or on that of the mariner alone. And to entitle it to the respect 
 accorded to documents under an official signature and seal, tlie signature must be 
 legible, and the impression of the seal sufficiently distinct to allow the vignette and 
 motto to be distinguished. The Atlantic, Abbott, Adm. 451. And to avail the owner 
 in a suit brought against him for the two months' wages, it must appear that the con- 
 sul personally made an official entry of his act both upon the list of the crew, and 
 upon the shipping articles. Miner v. Harbeck, Abbott, Adm. 546. In Emerson v. 
 Rowland, 1 Mason, 45, it was held that where seamen were discharged abroad, with- 
 out the payment of the three months' wages, required by the above act, the court 
 would enforce the payment in this country by a libel in personam, for wages, against 
 the owners of the vessel. See also, Orne v. Townsend, 4 Mason, 541 ; The Saratoga, 
 2 Gallis. 164, 181 ; Wells v. Meldrun, 1 Blatchf. & H. Adm. 342; Pool v. Welsh, 
 Gilpin, 193. But in Ogden v. Orr, 12 Johns. 143, the court refused to sustain an 
 action at law brought by a seaman discharged by his own consent, in a foreign port, 
 against the owners of a vessel, to recover two thirds of the three months' wages. 
 The ground taken by the court was, that the statute does not require the master to 
 pay the money to the seamen, but to the consul, and that the payment was in the 
 nature of a penalty for the discharge of American seamen in foreign countries. See 
 also, Van Beuren v. Wilson, 9 Cow. 158. The English Admiralty court has also 
 refused to enforce this provision, on the ground of their having no jurisdiction, it 
 being a municipal regulation of a foreign country. The Courtney, Edw. Adm. 239. — 
 Where a vessel is sold, the seaman is entitled to his wages up to the actual sale of the 
 vessel, and not merely to the time of the advertisement of such sale. Lang v. Holbrook, 
 Crabbe, 179. The Act of 1856, eh. 127, § 26, 11 U. S. Stats, at Large, 62, makes it 
 obligatory upon the consul, upon the application of any seaman or mariner for a dis- 
 charge, if it appear that he is entitled to it under any act of congress, or according to the 
 general principles or usages of maritime law, as recognized in the United States, to dis- 
 charge him, and to require the three months' extra wages, as provided in tlie Act of 1803, 
 ch. 9, and the master shall pay this in all cases, unless the consul shall be satisfied that 
 the contract has expired, or the voyage been protracted by circumstances beyond the con- 
 trol of the master, without any design to violate the articles of shipment, in which case 
 if he deems it just he may discharge the mariner without exacting the additional pay. 
 The three months' wages are to be held by the consul for the same purposes as pro- 
 vided in the Act of 1803, and if the consul neglects to require the payment of, and to 
 collect tlie said wages, he shall be answerable to the United States, and to the seaman, 
 respectively, for their shares of such wages. 
 
 1 The Dawn, Ware, 485, Daveis, 121 ; Ilenop v. Tucker, 2 Paine, C. C. 151 ; The 
 Saratoga, 2 Gallis. 164, 181. This is now so provided by statute in the case of wrecked 
 or stranded vessels, or where they are condemned as unfit for service. Act of 1856, 
 ch. 127, § 26, 11 U. S. Stats, at Large, 62. In Brown v. The Independence, Crabbe, 
 54, it was held, where a seaman was injured by the mate, and the police authorities 
 of the place took him on shore to the hospital without his request, and against the 
 will of the master, who also wanted to take him away with him when he left, that the 
 seaman was not entitled to the benefit of the Act of 1803.
 
 CH. XII.] RETURN OF SEAMEN TO THIS COUNTRY. 461 
 
 The ship must be repaired,^ or if captured, all proper means 
 used to obtain restoration, and the seamen may hold on, a 
 reasonable time, for this purpose. And if discharged before, 
 they may claim their extra wages.^ Our consuls and commercial 
 agents may authorize the discharge of a seaman for good cause, 
 but this must be disobedience, or misconduct, or disability by 
 his own fault, of an extreme degree.^ If the stipulations of the 
 shipping articles are violated by the master,^ if the vessel be un- 
 
 1 Pool V. Welsh, Gilpin, 193 ; The Dawn, Ware, 485. In Wells v. Meldrun, 1 Blatchf. 
 &,H. Adm. 342, it was held that where a vessel was condemned, in a foreign port, as 
 unscaworthy, and sold on that account, and the voyage relinquished, the seamen were 
 entitled to their extra wages under the act. Beits, J., states the reasons of the decision, 
 as follows : " The necessity for the sale, in this instance, for unseaworthiness, was not 
 the result of any casualty to the vessel ; nor was the sale compulsory, under any coer- 
 cion, judicial or administrative, at the foreign port, so as to take away the discretion 
 and free action of the master. There is no proof that the vessel was even irreparable, 
 or that the unseaworthiness was more than the result of the natural wear of the ship 
 on her voyage, or of her imperfect condition when sent to sea." 
 
 2 The Saratoga, 2 Gallis. 164; Emerson v. Howland, 1 Mason, 45. 
 
 3 Under the Act of 1803, ch. 9, § 1, 2 U. S. Stats, at Large, 203, a discharge of a 
 seaman in a foreign port, in order to justify a master for not producing him on tlie 
 return of the vessel, must have been " with the consent of the consul, vice-consul, com- 
 mercial agent, or vice-commercial agent, there residing, signified in writing under his 
 hand and official seal." In regard to what degree of misconduct will justify the master 
 in putting an end to the contract with seamen, see cases in/j-a. In Hutchinson v. 
 Coombs, Ware, 65, 70, Ware, J., after admitting that, by the marine law, a master 
 could, in certain cases, turn a mariner out of the vessel, said : "But this he cannot do 
 for slight or venial offences, and certainly not for a single offence, unless of a very ag- 
 gravated character. Tlie cases stated, in which a master is permitted to discharge a 
 seaman are, when he is incorrigibly disobedient, and will not submit to do his duty, 
 Thorne v. White, 1 Pet. Adm. 168, 175 ; or if he is mutinous and rebellious, and per- 
 sists in such conduct, Ilclf v. Tlie Maria, 1 Pet. Adm. 186 ; or guilty of gross dishon- 
 esty, as embezzlement or theft. Black v. Tiie Louisiana, 2 Pet. Adm. 268 ; or if lie is an 
 habitual drunkaixl, a stirrer up of quarrels and broils, to the destruction of the discipline 
 of the crew ; or by his own fault renders himself iucapalilc of performing his duty." 
 In Nieto v. Clark, U. S. D. C, Mass., Boston Courier, Marcii 23, 1858, it was held that 
 the master was justified in discharging a seaman who entered the state-room of a lady 
 passenger, and conducted himself there in a grossly indecent manner. See also, Orne v. 
 Townsend, 4 Mason, 541, 548 ; Whitton v. The Ship Commerce, 1 Pet. Adm. 160, 164 ; 
 Atkyns v. Burrows, id. 244, 248. The Nimrod, Ware, 9. If the seaman is taken from a 
 vessel in a foreign port and sent home for a crime, his contract with the vessel is at an 
 end, and he cannot recover any wages subsequently accruing. Smith v. Treat, Daveis, 
 266. So, if the seaman is sent home by the consul. Tingle v. Tucker, Abbott, Adm. 
 519. 
 
 * Act of 1840, ch. 48, § 9, 5 U. S. Stats, at Large, 395. 
 
 39*
 
 462 ON THE LAW OF SUIPPING. [bOOK V 
 
 seaworthy,^ or the seaman subjected to cruel treatment, he may 
 be discharged by the consul or commercial agent, and his three 
 months' wages allowed him, as if it were a voluntary discharge 
 by the master. And this even if the sailor has deserted the 
 ship by reason of such cruelty.^ 
 
 They may also send home our seamen in other ships, which 
 are bound to take them, for a compensation not exceeding ten 
 dollars for each man, and the sailor so sent is bound to work 
 and obey as if he had originally shipped in that vessel.'^ If a 
 master discharges a seaman against his consent and without 
 good cause, in a foreign port, he is liable to a fine of five hun- 
 dred dollars or six months' imprisonment.* And the seaman 
 may recover besides, full indemnity for his time lost or expenses 
 incurred by reason of such discharge.^ 
 
 1 Act of 1840, § 14. 
 
 2 Act of 1840, § 17. 
 
 3 Act of 180.3, ch. 9, § 4, 2 U. S. Stats, at Large, 204. This act provides a penalty 
 of one hundred dollars, in case any master refuses to bring home destitute seamen. 
 In Matthews r. Offlcy, 3 Sumner, 115, it was held that an action for this penalty must 
 be brought in the name of the government. It was also held in this case, that if the 
 seaman deserted from an American ship, and she was in port at the time he became 
 destitute, the consul might require another American vessel to bring him home. It was 
 also held that foreigners, while employed as seamen on American ships, are entitled to 
 the privileges of the act; and, that the certificate of the consul is prima facie ey'iAence 
 of all the facts stated in the enacting clause of the section, which are necessary to bring 
 the case within the penalty. 
 
 * Stat. 1825, ch. 65, § 10, 4 U. S. Stats, at Large, 117. In United States v. 
 Netcher, 1 Story, 307, Mr. Justice Story, speaking of the tenth section of the above 
 act, said: "In my judgment, this section enumerates three distinct and independent 
 offences. 1. The maliciously and without justifiable cause, forcing any officer or 
 mariner on shore in any foreign port. 2. The maliciously and without justifiable 
 cause, leaving such officer or mariner behind in any foreign port ; and 3. The mali- 
 ciously and without justifiable cause, refusing to bring home again all the officers and 
 mariners of the ship in a condition to return and willing to return on the homeward 
 voyage." In United States v. Kuggles, 5 Mason, 192, " maliciously" in this act was 
 held to mean an act wantonly done, that is with a wilful disregard of right and duty, 
 an act done contraiy to a man's own convictions of duty. See also, United States v. 
 Coffin, 1 Sumner, 394; United States v. Lunt, 18 Law Eeporter, 683. 
 
 * In Emerson v. Howland, 1 Mason, 45, 53, Mr. Justice Story said : " In some 
 adjudged cases, indeed, wages up to the successful termination of the voyage, have 
 been allowed ; in others, wages up to the return of the seaman to the country, where 
 he was originally shipped, without reference to the termination of the voyage. The 
 Beaver, 3 Rob. Adm. 92 ; The Ship Exeter, 2 Rob. Adm. 261 ; Hoyt v. Wildfire, 3 
 Johns. 518 ; Brooks v. Dorr, 2 Mass. 39 ; Ward v. Ames, 9 Johns. 138 ; Sullivan v.
 
 en. XII.] DISOBEDIENCE OF SEAMEN. 463 
 
 SECTION YII. 
 
 OF THE DISOBEDIENCE OF SEAMEN. 
 
 Disobedience, or misconduct of a sailor is, of necessity, pun- 
 ishable with great severity, because disciphne must be preserved, 
 as without it the ship would always be in great peril, and no 
 voyage could be successfully conducted.^ Formerly, there was 
 
 Morgan, 11 Johns. 66 ; Eice v. The Polly and Kitty, 2 Pet. Adm. 420, 423, note ; The 
 Gloucester, 2 Pet. Adm. 403, 406, note; The Littlejohn, 1 Pet. Adm. 115, 119, 120. 
 But these apparent contrarieties are easily reconcilable, when the circumstances of 
 each case are carefully examined. In all the cases, a compensation is intended to be 
 allowed, which shall be a complete indemnity for the illegal discharge, and this is 
 ordinarily measured by the loss of time, and the expenses incurred by the party. It 
 is presumed that after his return home, or after the lapse of a reasonable time for that 
 purpose, the seaman may, without loss, engage in the service of other persons, and 
 where this happens to be the case, wages are allowed only until his return, although 
 the voyage may not then have terminated. On the other hand, if the voyage have 
 terminated before his return, or before a reasonable time for that purpose has elapsed, 
 wages are allowed up to the time of his return, for otherwise he would be M-ithout any 
 adequate remedy. Cases, however, may occur of such gross and harsh misbehavior, 
 or wanton injustice, as might require a more ample compensation than could arise 
 from either rule." See also. The Union, 1 Blatchf. & II. Adm. 545 ; Farrell r. 
 French, I Blatchf. & H. Adm. 275 ; The Maria, id. 331 ; Brunent v. Taber, U. S. D. C, 
 Mass., 18 Law Reporter, 685; Nevitt v. Clarke, Olcott, Adm. 316; The Nimrod, 
 Ware, 9 ; Hutchinson r. Coombs, id. 65 ; Ex parte Giddings, 2 Gallis. 56. No deduc- 
 tions are made except that the wages earned on the homeward voyage are to be 
 deducted from the expenses allowed for the return. Emerson v. Ilowland, 1 Mason, 45, 
 54; Hutchinson v. Coombs, Ware, 65. In SheflSeld v. Page, U. S. D. C, Mass., 18 
 Law Reporter, 99, the mate was tortiously discharged at Calcutta. Ko situation was 
 offered him as mate,' and he came home before the mast. Held that the wages thus 
 earned by him should not be deducted from the amount decreed against the owner. 
 See Hoyt v. Wildfire, 3 Johns. 518; Nevitt v. Clarke, Olcott, Adm. 316, 320. Where 
 seamen were turned off from a privateer without lawful cause, they were held to be 
 entitled to their proportion of the prizes taken during their absence. Mahoon v. The 
 Glocester, 2 Pet. Adm. 403. — As a general rule of law a breach of a statute by a 
 master, which subjects him to a penalty, does not take away the right of a seaman, 
 who has been injured, in consequence of such breach. Couch v. Steel, 3 Ellis &, B. 
 402, 24 Eng. L. & Eq. 77. 
 
 1 Thome v. White, 1 Pet. Adm. 168; Gardner v. Biblnns, 1 Blatchf. & II. Adm. 
 356; The Elizabeth Frith, id. 195, 208; The United States v. Wickham, 1 Wash. 
 C. C. 316 ; Jordan v. Williams, 1 Curtis, C. C. 69 ; United States v. Smitii, 3 Wash. 
 C. C. 525 ; Michaelsoa y. Dcnison, 3 Day, 294 ; United States v. Freeman, 4 Mason,
 
 464 ON THE LAW OF SniPPINQ. [BOOK I. 
 
 no specific limit to the right of punishment. It might be ad- 
 ministered by the master in any form, and in any measure, he 
 always being answerable for his excess or cruelty, both crimi- 
 nally ^ and in damages to the seaman.^ But if the mate, in 
 
 505, 512 ; Carlcton v. Davis, Daveis, 221 ; Tui'ner's case, Ware, 83 ; United States v, 
 Peterson, 1 Woodb. & M. 305; Fuller v. Colby, 3 id. 1. Sec also cases infra. In 
 Sheridan v. Furbur, 1 Blatchf. & H. Adm. 423, it was held that general orders from 
 one officer would not excuse disobedience to the specific orders of another. 
 
 A hammer is an improper weapon to strike a seaman with, nor is it any excuse that 
 the weapon was casually in the hands of the captain, and that he used it in a moment 
 of excitement, and under circumstances, which would have justified some punishment. 
 Saunders v. Buckup, 1 Blatchf. & H. Adm. 264. So a sword is an improper weapon 
 to strike a seaman with, but a bucket of water thrown over a person to make him 
 move quicker, has been held to be no severe punishment, especially in the month of 
 August. Schelter v. York, Crabbe, 449. And it has been held in the same court, that 
 a blow with a dirty frying-pan, or wiping a dirty knife on the face of the person, whose 
 duty it was to keep these articles clean, is not a very aggravated or cruel assault. 
 Forbes v. Parsons, Crabbe, 283. See also, Benton v. Whitney, id. 417. A belaying pin 
 is an improper instrument for punishment. Carlcton v. Davis, Daveis, 221 ; Shorey v. 
 Rennell, U. S. D. C, Mass., 1858, per Sprague, J. ; Eingold v. Crocker, Abbott, 
 Adm. 344 ; as is a log of firewood. Brown v. The Independence, Crabbe, 54. But 
 if a person is indicted for committing an assault with a dangerous weapon, it is a 
 question for the jury, and not for the court, whether the instrument used was a dan- 
 gerous weapon. United States v. Small, 2 Curtis, C. C. 241. In Jarvis v. Sherwood, 
 Bee, Adm. 248, it is held that a cutlass should only be used when a mutiny exists or 
 is threatened, but modei'ate correction with the fist is justifiable. This case also de- 
 cides that a captain who encourages disorderly conduct in his men is the less excusable 
 for inflicting unusual punishment for conduct arising, in some measure, out of that. 
 
 1 Act of 1825, ch. 65, § 22, 4 U. S. Stats, at Large, 122 ; Act of 1835, ch. 40, § 3, 
 4 U. S. Stats, at Large, 776. For decisions under the former of these acts, see United 
 States V. Crush, 5 Mason, 290; United States v. Hunt, 2 Story, 120. In United 
 States V. Cutler, 1 Curtis, C. C. 501, the master was indicted under the Act of 1835, for 
 beating one of his crew with malice and without justifiable cause. Curtis, J., said : 
 " The government must prove : 1, the beating; 2, the want of justifiable cause ; 3, mal- 
 ice." See also, United States v. Alden-, 7 Law Reporter, 469 ; United States v. Winn, 3 
 Sumner, 209 ; United States v. Small, 2 Curtis, C. C. 241. Although flogging is now 
 abolished, yet it is not a cruel and imusual punishment, within the meaning of the 
 third section of the Act of 1835. United States v. Collins, 2 Curtis, C. C. 194. 
 
 2 In Forbes v. Parsons, Crabbe, 282, it was held that a seaman is, in general, enti- 
 tled to recover damages for an assault from the master, first, where personal violence 
 is inflicted, not excessively, but wantonly, and without provocation or cause ; second, 
 where there was provocation and cause, but the punishment was cruel, or excessive ; 
 third, where the punishment is inflicted with a dangerous weapon. See also, The 
 Agincourt, 1 Hagg. Adm. 271 ; Watson r. Christie, 2 B. & P. 224 ; Shorey v. Rennell, 
 U. S. D. C, Mass., 1858 ; Brown v. Howard, 14 Johns. 119; Sampson v. Smith, 15 
 Mass. 365; Rice v. The Polly & Kitty, 2 Pet. Adm. "420; Roberts v. Dallas, Bee, 
 Adm. 239 ; Jarvis v. Sherwood, Bee, 248 ; Jenks v. Lewis, Ware, 51 ; 3 Mason, 503 ; 
 Elwell V. Martin, Ware, 53; Butler v. McLellan, id. 219; Hutson v. Jordan, id.
 
 en. XII.] DISOBEDIENCE OF SEAMEX. 465 
 
 obedience to the commands of the master, assists him in punish- 
 ing a seaman, he will not be answerable as a joint trespasser, 
 unless the punishment is obviously and grossly excessive and 
 unjust.i Seamen have a right to the protection of the master 
 against illegal violence from the other officers of the vessel, and 
 he is bound to hear their complaints and prevent a repetition of 
 their wrongs. If, therefore, seamen are illegally treated by the 
 mate, and the captain refuses to hear their complaints, and the 
 ship is in port and safely moored, the seamen are entitled to 
 their discharge.^ It has also been held that no one but the 
 highest officer on board can inflict punishment for a past offence 
 for the purpose of reformation or example.^ Now, however, 
 flogging is abolished and .prohibited by law.* This has been 
 declared, by very high authority, to include the use of the cat, 
 and every similar form of punishment ; but not necessarily to in- 
 clude all corporal punishment, such as a blow with the hand, or 
 a stick or rope ;'^ and in a case tried in Boston in the Common 
 
 385 ; Polydorc v. Prince, id. 402 ; Bangs v. Little, id. 506 ; PettinglU v. Dinsmore, 
 Daveis, 208 ; Thomas v. Lane, 2 Sumner, 1 ; Morris r. Cornell, 6 Law Reporter, 304, 
 310; Whitney v.. Eager, Crabbe, 422; Sheridan v. Furbur, 1 Blatchf. & H. Adm. 
 423. 
 
 1 Butler V. McLellan, Ware, 219. 
 
 2 Shorcy v. Rcnnell, U. S. D. C, Mass., 1858. 
 8 Ibid. 
 
 * Act of 1850, ch. 80, 9 U. S. Stats, at Large, 515, contains the following clause : 
 "Provided, That flogging in the navy, and on board vessels of commerce, be, and the 
 same is hereby abolished, from and after the passage of this act." Mr. Justice Curtis, 
 in a charge to the grand jury, delivered at Providence, R. I., November 15, 1853, 
 instructed them tliat the words " vessels of commerce," in the above statute, included 
 vessels engaged in the whale and other fisheries. 1 Curtis, C. C. 509. So held also 
 in United States v. Cutler, 1 Curtis, C. C. 501. The Act of 1850 is not a penal law, 
 and no indictment can be framed upon it. But it has an important bearing upon tiic 
 Act of 1835, in regard to the question of justifiable cause and malice. Same case. In 
 a case decided by Mr. Justice Sprur/uc, in the District Court of the United States for 
 the Massachusetts District, February, 1857, Captain Lcndliolm of the ship Josephine 
 was charged with maltreating his crew of Lascars. The court held tliat although the 
 captain was apparently honest in tlie belief that the men had conspired to poison him, 
 yet he had no right to flog them. 
 
 ^ Charge to tiie Grand Jury, 1 Curtis, C. C. 509. In United States v. Cutler, 1 
 Curtis, C. C. 501, the master of a vessel was indicted under the Act of 1835, for beat- 
 ing one of his crew maliciously, and without justifiable cause. The master had j)un- 
 ishcd the seaman by iiiflic'iing six blows upon him with a piece of ratlin stuff". ]\Ir. 
 Justice Curtis said : " If the i)unisliment inflicted was the punishment of flogging, 
 within the meaning of the Act of 1850, there could be no justifiable cause, the author-
 
 466 ON THE LAW OP SHIPPING. [bOOK I. 
 
 Picas, February, 1854, it was held, on what seems to us to be 
 good reasons, that the statute was intended to apply to deliberate 
 flogging by way of punishment, and not to a blow or blows of 
 any kind inflicted upon an emergency to produce immediate 
 obedience.! Generally the only punishments which can now be 
 resorted to, to enforce obedience and good conduct, are, forfeiture 
 of wages,^ irons,'^ imprisonment,* hard labor,'^ or such other means 
 
 ity of the master to punish by flogging being taken away. And it is for the jury to 
 find whether what was done, amounted to the punishment of flogging abolished 
 by that act. In order to decide this question, it is necessary for the jury to attend to 
 •what is the punishment of flogging referred to in that law ; and my instruction is, that 
 it is corporal punishment by stripes inflicted with a cat, or any punishment which, in 
 substance and effect, amounts thereto. The particular form of the instrument is not 
 material ; what you must look to is the effect produced. If the man was punished by 
 stripes, inflicted with a rope, and this, in substance and effect, is the same hind of pun- 
 ishment as the punishment of flogging with a cat, then it is prohibited by this law. 
 The degree of severity of the punishment is not material. It is the kind, and not the 
 degree, of punishment which is important. It may be, that one blow with a cat would 
 inflict stripes more painful to be borne, than one blow with a piece of ratlin stuff. But 
 this is not material, if both are corporal punishment by stripes, and both are in sub- 
 stance the same kind of punishment." 
 
 1 And Sprague, J., in the case of Shorey v. Rennell, U. S. D. C, Mass., IS.'SS, said : 
 " Any officer may use violence when necessary to coerce the performance of a duty, 
 when an exigency requires instant obedience." 
 
 2 Relf V. Ship Maria, 1 Pet. Adm. 186; Atkyns v. Burrows, id. 244; Thorne v. 
 White, id. 168 ; Buck v. Lane, 12 S. & li. 266. 
 
 3 Turner's Case, Ware, 83 ; Macomber v. Thompson, 1 Sumner, 384, 389 ; Samp- 
 son V. Smith, 15 Mass. 365, 369 ; Shorey v. Eennell, U. S. D. C, Mass., 1858. 
 
 * Under some circumstances the master may imprison the seamen on shore. United 
 States V. Ruggles, 5 Mason, 192; Relf v. Ship Maria, 1 Pet. Adm. 186; Wood v. 
 The Nimrod, Gilpin, 83, 89. But, as is said by Mr. Justice Hopldnson, in Wilson v. 
 The Mary, Gilpin, 31, 32, "The practice of imprisoning disobedient and refractoiy 
 seamen in foreign gaols is one of doubtful legality. It is certainly to be justified only 
 by a strong case of necessity. It is not among the ordinary means of discipline put 
 into the hands of the master. I am inclined to think there should be danger in keep- 
 ing the offender on board, or some great crime committed when this extreme measure 
 is resorted to. It should be used as one of safety rather than discipline, and never 
 applied as a punishment for past misconduct. The powers given by the law to the 
 master, to preserve the discipline of his ship, and compel obedience to his authority, 
 are so strong and full, that they can seldom fail of their effect : they should be clearly 
 insuflBcient, before we should allow the exercise of a power which may so easily be 
 
 s In Allen v. Hallet, Abbott, Adm. 573, it was held in an action brought against a 
 master by a cook who had secreted himself on board, to recover damages for being 
 punished for refusal to obey orders, that it was incumbent on the master to prove, in 
 order to justify the punishment, that the man possessed the experience and capacity 
 which would enable him to fulfil the order with safety.
 
 \ 
 
 CH. XII.] DISOBEDIENCE OF SEAMEN. 467 
 
 as may be invented to take the place of flogging. In connection 
 with this subject we will consider briefly the offences for which 
 
 made an instrument of cruelty and oppression, and may be so terrible in its conse- 
 quences." See also, Thome v. White, 1 Pet. Adm. 168, 175, note; Magee v. The 
 Moss, Gilpin, 219 ; The Nimrod, Ware, 9, 18; The William Hams, id. 367; The 
 David Pratt, id. 496, 503 ; Jay v. Almy, 1 Woodb. & M. 262 ; Snow v. Wope, 2 Curtis, 
 C. C. 301 ; Johnson v. Ship Coriolanus, Crabbe, 239 ; Gardner v. Bibbins, 1 Blatchf. 
 & H. Adm. 356; Buddington v. Smith, 13 Conn. 334. "When a master of a ship 
 thinks it necessary to cause any of his crew to be confined in a foreign jail, he should 
 pay some regard to their condition and treatment there, and should from personal 
 examination, see that they are such as humanity requires." Per Sprague, J., Shorey 
 V. Eennell, U. S. D. C, Mass., 1858. K a seaman is imprisoned by the authorities 
 of a foreign country for the violation of its laws, the costs and charges may be de- 
 ducted from his wages. Magee v. The Moss, Gilpin, 219. But if he is imprisoned 
 by the master, neither the costs and charges, nor the pay for the hire of another, are to 
 be deducted from his wages. Same case. See also, Thome v. White, 1 Pet. Adm. 
 168, 176, note; Wilson v. The Mary, Gilpin, 31 ; Wood v. The Nimrod, id. 83, 89; 
 Tlie Nimrod, Ware, 9', 19 ; The William Harris, id. 367 ; Johnson v. Ship Coriolanus, 
 Crabbe, 239; The Maria, 1 Blatchf. & H. Adm. 331; Thomas v. Gray, id. 493. 
 But see Jordan v. Williams, 1 Curtis, C. C. 69, 86. In Johnson v. Ship Coriolanus, 
 supra, it was held that the certificate of a consul setting forth the facts that led to the 
 imprisonment was not evidence, and aff'orded no justification for the master, and that 
 the court would examine the whole question de novo, and determine whether the 
 imprisonment was justifiable. See also to the same effect. Brown v. Brig Independ- 
 ence, Crabbe, 54; Wilson v. The Mary, supra; The William Hams, Ware, 367, 372. 
 The eleventh section of the Act of 1840, ch. 48, 5 U. S. Stats, at Large, 395, is as 
 follows : " It shall be the duty of consuls and commercial agents to reclaim deserters 
 and discountenance insubordination by every means within their power ; and where 
 the local authorities can be usefully employed for that pui-pose, to lend their aid and 
 use their exertions to that end in the most effectual manner." In Jordan v. Williams, 
 1 Curtis, C. C. 69, 80, this section was considered to change the law above stated, and 
 it was there held that if the master in a foreign port lays a complaint against any of 
 his crew before the consul, and the latter, upon examination, finds it expedient or neces- 
 sary to make use of the local authorities, the master is not responsible for their impris- 
 onment as for a tort, the consul being answerable to the injured party for any malver- 
 sation or abuse of power. See also, Tingle v. Tucker, Abbott, Adm. 519. But, if 
 the consul is absent, his clerk or assistant has no power to procure the interposition of 
 the local authorities, and if the master imprison a seaman, he is liable as for a tort. 
 Snow V. Wope, 2 Curtis, C. C. 301. In Shorey v. Rennell, U. S. D. C, Mass., 1858, 
 Sprague, J., said : " Upon the authority of the case of Jordan v. Williams, the captain 
 must be exonerated from liability for the imprisonment on shore by the order and war- 
 rant of the consul. But I cannot extend the same immunity to what was done on 
 board the ship. There the captain was supreme, and must be responsible in damages 
 for wrongs done to his men liy his authority or acquiescence. The instructions of the 
 consul might avail him much in a criminal prosecution, in which malice is an essential 
 agreement, and a mistake without evil intent would be a good defence, but in a civil 
 suit the question is whether a wrong has been done to the libellants, and if so they are 
 entitled to indemnity."
 
 468 ON THE LAW OF SHIPPING. [bOOK I. 
 
 the penalty of forfeiture of wages is imposed. A trivial act of 
 irregularity will not work a forfeiture,^ nor will a single act of 
 intemperance, nor an occasional act, but it must be habitual to 
 have this effect.^ If, during the voyage, either the master or a sea- 
 man smuggle goods, he either forfeits all his wages, or the dam- 
 age actually sustained by the owners of the vessel may be 
 charged upon his wages.'^ Embezzlement by the master or crew 
 also works a forfeiture.* In England it seems that the court have 
 
 1 The Gondolier, 3 Ilagg. Adm. 190. In The Bhike, 1 W. Bob. 73, 74, Dr. Lush- 
 ington said : " Wages may be forfeited, not in cases of discharge for mere misconduct 
 alone, but where the misconduct has been such as to render the discharge of the sea- 
 man imperatively necessary for the safety of the ship and the due preservation of dis- 
 cipline." " The disobedience must be either an act of a veiy gross nature, involving 
 serious danger, or mischief, or malignancy ; or it must be habitual, and produce such a 
 general diminution of duty, as goes to the very essence of the contract." Per Story, J., 
 The Ship Mentor, 4 Mason, 84, 92. See also, Drysdale v. Sch. Eanger, Bee, Adm. 
 148 ; The jSIaria, 1 Blatchf. & H. Adm. 331. In a suit for wages where misconduct is 
 set up as a defence, there must be a special allegation of the focts with due certainty of 
 time, place, and other circumstances. Macomber v. Thompson, 1 Sumner, 384. 
 
 ^ The New Phoenix, 1 Hagg. Adm. 198; The Lady Campbell, 2 Hagg. Adm. 5 ; 
 The Ealing Grove, id. 15; The Malta, id. 158, 168; The Duchess of Kent, 1 W. 
 Eob. 283. 
 
 3 Willard v. Doit, 3 Mason, 161 ; Freeman v. "Walker, 6 Greenl. 68; Scott v. Eus- 
 sell, Abbott, Adm. 258. 
 
 * This is a well-settled principle of maritime law, Alexander v. Galloway, Abbott, 
 Adm, 261 . But the question how far a seaman is liable where an embezzlement is proved 
 to have taken place, but the actors in it are not known, is one of a difficult nature, and 
 the decisions respecting it are conflicting, though we consider the matter as virtually at 
 rest at the present time. In Crammer v. The Ship Fair American, 1 Pet. Adm. 242, 
 Mr. Justice Peters held, that in case of an embezzlement all the crew, including the 
 captain and officers, were bound to contribute for the damage sustained, although one 
 of the crew was on shore, and confined in prison at the time of the embezzlement, the 
 learned judge remarking : " The innocence of an individual is not the r^uestion ; it turns 
 on the joint obligation of all, to make retribution ; it is part of the conditions upon 
 which they engage in their occupation." In Jlariners v. Ship Kensington, 1 Pet. Adm. 
 239, where the defence was, that certain laborers, who assisted in stowing the vessel, 
 embezzled the goods, the court held, that the burden was on the seamen to prove this 
 fact, and, there being no direct evidence who committed it, the seamen were held liable. 
 The severity of the rule laid down in these decisions was somewhat modified in Sulli- 
 van V. Ingraham, Bee, Adm. 182, where proof that some of the crew could not have 
 committed the offence was admitted. And in Knap v. Brig Eliza and Sarah, 1 Pet. 
 Adm. 200, where the mate and two seamen were sent ashore in a boat, and one of the 
 men was sent off on the business of the ship, after which the mate and the other sea- 
 man left, and the boat was stolen, it was held, that only the two latter were liable. 
 And in Lewis v. Davis, 3 Johns. 17, Kent, C. J., held, that where part of the crew 
 were on shore by permission of the mate, the master not being on board, and goods 
 were stolen in their absence, they were not liable. In Spurr v. Pearson, 1 Mason, 104,
 
 en. Xir.] DISOBEDIENCE OF SEAMEN. 4G9 
 
 only power to decree the whole wages forfeited or none.^ But 
 in this country, a part may be forfeited according to the nature 
 of the offence.2 Only those wages earned before the act of mis- 
 conduct, are forfeited.^ So if the mate is promoted during the 
 voyage, and while master, commits an offence, it cannot be set 
 up as working a forfeiture of the wages earned as mate.* If the 
 seaman repents and offers to return to duty, the master should 
 receive him, and, if he does so, this acts as a condonation of 
 the offence.^ And if he punishes him severely the forfeiture is 
 considered as remitted.^ 
 
 Mr. Justice Story, after an elaborate review of the authorities, stated as his opinion : 
 " That where the embezzlement has arisen from the fault, fraud, connivance, or negli- 
 gence of any of the crew, they arc bound to contribute to it, in proportion to their 
 wages ; that where the embezzlement is fixed on an individual, he is solely responsible : 
 that where the embezzlement is clearly shown to have been made by the crew, but the 
 particular offenders are unknown, and from tlie circumstances of the case, strong pre- 
 sumptions of guilt apply to the whole crew, all must contribute ; but that where no 
 tault, fraud, connivance, or negligence is proved against the crew, and no reasonable 
 presumption is shown against their innocence, the loss must be borne exclusively by the 
 owner or master : that in no case are the innocent part of the crew to contribute for 
 the misdemeanors of the guilty ; and further, that in a case of uncertainty, the burden 
 of the proof of innocence does not rest on the crew ; but the guilt of the parties is to 
 be established beyond all reasonable doubt, before the contribution can be demanded." 
 See also, Joy v. Allen, 2 Woodb. & M. 30.3. The rule in England is similar. Thomp- 
 son V. Collins, 4 B. & P. 347 ; The Prince Frederick, 2 Hagg. Adm. 394 ; The 
 Duchess of Kent, 1 W. Kob. 283, 285. In Anderson v. Sloop Solon, Crabbe, 17, it 
 was held not to be embezzlement for a seaman to sell part of the cargo by direction of 
 the mate in order to procure provisions for the vessel, the master being permanently 
 liable. Nor are the crew liable if a slave, who is entered on board as seaman, escapes. 
 Carey v. Sch. Kitty, Bee, Adm. 255. 
 
 1 The Blake, 1 W. Rob. 73, 87. 
 
 2 Sprague v. Kain, Bee, Adm. 184; Humphreys v. Brig America, Bee, Adm. 237 ; 
 Macomber v. Thompson, 1 Sumner, 384 ; The Maria, Blatchf. & H. Adm. 331 ; 
 The Moslem, Olcott, Adm. 300 ; Orne v. Townsend, 4 Mason, 541 ; Mitchell v. The 
 Ship Orozimbo, 1 Pet. Adm. 250. 
 
 3 The Ship Mentor, 4 Mason, 84 ; Smith v. Treat, Daveis, 266. 
 * The Brig Ann C. Pratt, 1 Curtis, C. C. 395, 398. 
 
 5 Atkyns v. Burrows, 1 Pet. Adm. 244 ; Home v. White, id. 168 ; Black v. The Ship 
 Louisiana, 2 Pet. Adm. 208 ; llelf v. The Ship Maria, 1 Pet. Adm. 186; Dixon v. 
 The Ship Cyrus, 2 Pet. Adm. 407 ; Johnson v. The Eliza, U. S. D. C, Mass., Abbott 
 on Shipping, 652, n. ; The Shij) Mentor, 4 Mason, 84 ; Drysdale v. Schooner Hanger, 
 Bee, Adm. 148. 
 
 •5 Sprague v. Kain, Bee, Adm. 184 ; Buck v. Lane, 12 S. & R. 266. In The Ship 
 Moslem, Olcott, Adm. 289, 300, Mr. Justice Belts said : " The after submission of the 
 men to the authority of the ship, and return to duty, with tlie acquiescence of the mas- 
 ter, and their continuing to servo on board until her arrival at Pernambuco, should 
 VOL. L 40
 
 470 ON THE LAW OF SHIPPING. [BOOK I. 
 
 SECTION VIII. 
 
 OF THE DESERTION OF SEAMEN. 
 
 Desertion is an offence which it is of great importance to 
 prevent, as otherwise a ship, with all her cargo, might be left 
 unmanageable. It is distinguished from absence without leave, 
 by the intention not to return.^ But it is desertion to refuse to 
 
 operate in equity to preserve the wages agreed in the shipping articles. I do not hold 
 the transaction an entire condonation of their oifence, yet I do not think the master 
 should be allowed to inflict corporeal punishment sufficient to bring the men back to 
 dut}"^, avail himself of their services, and then exact a confiscation of their whole wages 
 for conduct, although highly disorderly and mutinous, yet based upon colorable 
 grounds of wrong towards them, and of right on their part to hold themselves dis- 
 charged of all obligation to the ship." 
 
 1 Cloutman v. Tunison, I Sumner, 373, 375 ; Coffin v. Jenkins, 3 Story, 108 ; Spencer 
 V. Eustis, 21 Maine, 519 ; The Rovena, Ware, 309 ; The Brig Cadmus v. Matthews, 2 
 Paine, C. C. 229 ; Borden v. Hiern, Blatchf. & H. Adm. 293 ; The Union, id. 545, 
 552; Ship Union v. Jansen, 2 Paine, C. C. 277; The Westmorland, 1 W. Kob. 216; 
 The Two Sisters, 2 W. Rob. 125. In The Westmorland, it was held, that the going on 
 shore without leave to seek advice as to the effect of the articles, was not a desertion 
 by the maritime law. So it has been uniformly held, that it is not desertion for the 
 seamen to leave the vessel against orders to go before the consul, at a foreign port, to 
 complain of their treatment. Freeman v. Baker, Blatchf. & H. Adm. 372 ; Hart v. 
 The Brig Otis, Crabbe, 52. The Act of 1840, ch. 48, § 16, 5 U. S. Stats, at Large, 
 396, provides that " the crew of any vessel shall have the fullest liberty to lay their 
 complaints before the consul or commercial agent in any foreign port, and shall in no 
 respect be restrained, or hindered therein by the master or any officer, unless some suf- 
 ficient and valid objection exist against their landing ; in which case, if any mariner 
 desire to see the consul or commercial agent, it shall be the duty of the master to ac- 
 quaint him with it forthwith ; stating the reason why the mariner is not permitted to 
 land, and that he is desired to come on board ; whereupon it shall be the duty of such 
 consul or commercial agent to repair on board, and inquire into the causes of the com- 
 plaint, and to proceed thereon as this act directs." In Morris v. Cornell, 6 Law Reporter, 
 304, 309, Mr. Justice Sprague said of this act : " It may be called the habeas corpus of 
 the seaman, and the court will carefully and vigorously guard its inviolability." The 
 right of the seaman under this act to lay his complaints before the consul has been held 
 to extend only to those complaints over which the consul has jurisdiction, as where the 
 seaman is detained contrary to his agreement, or after he has fulfilled it, or where the 
 vessel is unseaworthy, but not to a case of complaint by the seamen that they are 
 badly treated. But even if they have a right to see the consul, they cannot refuse to 
 attend to duty at any moment until they have seen him, unless such refusal is abso-
 
 CH. Xir.] DESERTION OF SEAMEN. 471 
 
 return when ordered, after an absence without leave,^ or other 
 temporary separation ; as by capture, or wreck.^ Desertion is 
 justified, or rather it is not desertion, when the vessel is left for 
 good cause, as a change of the voyage without consent,^ cruelty,* 
 insufficient provisions,^ or unseaworthiness of the ship.^ It has 
 been held that if desertion is attempted to be justified on the 
 ground that the deserter was a negro, and that the captain threat- 
 ened to sell him as a slave, it must be averred that the place 
 where the threat was to be executed was one where slaves could 
 be sold.' If the seaman returns after desertion, and is received 
 by the master or by the owner, this is a condonation of the 
 
 lutcly necessary to prevent the loss of that right. The master is to be allowed some 
 discretion as to the time and mode of landing. Jordan v. Williams, 1 Curtis, 
 C. C. 69. 
 
 1 The Bulmer, 1 Hagg. Adm. 163 ; Pichl v. Balchen, Olcott, Adm. 24. 
 
 2 Boardman v. The Brig Elizabeth, 1 Pet. Adm. 128. 
 
 3 The Cambridge, 2 Hagg. Adm. 243 ; Moran v. Baudin, 2 Pet. Adm. 415 ; Ingra- 
 ham V. Albee, Blatchf. & H. Adm. 289 ; United States v. Matthews, 2 Sumner, 470. 
 See also, cases ante, p. 443, note 3. But the crew are not justified in such a case in 
 seizing the vessel and bringing it home. The Mary Ann, Abbott, Adm. 270. 
 
 * The Minerva, 1 Hagg. Adm. 347, 368 ; Limland v. Stephens, 3 Esp. 269 ; Prince 
 Edward v. Trevellick, 4 Ellis & B. 59, 28 Eng. L. & Eq. 205 ; Ward v. Ames, 9 Johns. 
 138; Relf v. The Ship Maria, 1 Pet. Adm. 186, 193; Rice v. The Polly and Kitty, 
 2 id. 420; Sherwood v. Mcintosh, Ware, 109 ; The America, Blatchf. & H. Adm. 185. 
 In Steele v. Thatcher, Ware, 91, 94, Mr. Justice Ware said : " I am, as at present ad- 
 vised, far from being prepared to hold that a battery, simply because it is excessive, will 
 be a justification, even though it should pass very considerably beyond the limits of a 
 moderate discretion. As a general rule, it seems to me that another ingredient should 
 enter into the case. The seaman who proposes, on this ground, to justify a desertion, 
 should not only exhibit proof of the injury, but a just and reasonable ground of appre- 
 hension that it would be causelessly repeated, either by showing a general disposition 
 to cruelty on the \rxrt of the master, or the existence of some particular pique or 
 malevolence toward him personally." See also, Magee v. The Moss, Gilpin, 219, 
 228. 
 
 ^ If no provisions at all are provided, then it is clear that a desertion for this cause is 
 justifiable. The Castalia, 1 Hagg. Adm. 59; The Eliza, id. 182, 186; Dixon r. The 
 Ship Cyrus, 2 Pet. Adm. 407. See also, Sigard r. Roberts, 3 Esp. 71. But to justify 
 a desertion on account of bad provisions, it must be shown that the food is not merely 
 not of the best, but positively bad and unfit for the support of the crew. Ulary v. The 
 Ship Washington, Crabbe, 204. 
 
 6 In Savory v. Clements, Sup. Jud. Ct., Mass., March T. 1857, 20 Law Reporter, 
 296, an action was brought by a seaman for work and lalior done, etc. The defence 
 was desertion. On the trial it appeared that the ship was unseaworthy, and the court 
 hold, that the plaintiff was entitled to recover. See also. Bray v. Ship Atalauta, Bee, 
 Adm. 48 ; Buckcr v. Klerkgctcr, Abbott, Adm. 402 ; and cases ante, p. 454, note 1. 
 
 •? Prince Edward v. Trevellick, 4 Ellis & B. 59, 28 Eng. L. & Eq. 205.
 
 472 ON THE LAW OF SHIPPING. [bOOK I. 
 
 offence and a waiver of the forfeiture ; ^ and it has this effect even 
 if there be a clause to the contrary in the shipping articles.^ He 
 must be received if he offer to return in a proper way, and with- 
 in a reasonable time, before any other person is engaged to take 
 his place.'^ If he desert before the voyage begins, by not ren- 
 dering himself on board, he forfeits the advance wages and an 
 equal sum in addition ;* or he may be apprehended under the 
 warrant of a justice, and compelled forcibly to go on board ; ^ but 
 if this be done the forfeiture is waived.^ It has, however, been 
 held, that receiving a seaman on board after the proper time is 
 no waiver of the penalty.'^ He may be apprehended if he deserts 
 ■on the voyage.*' And for such desertion he forfeits all his wages, 
 
 1 Millej- V. Brant, 2 Camp. 590 ; Beale i-. Thompson, 4 East, 546 ; Train v. Bennett, 
 3 Car. & P. 3; Whitton v. The Brig Commerce, 1 Pet. Adm. 160; Cloutman v. 
 Tunison, 1 Sumner, 373 ; Austin ?;. Dewey, 1 Hall, 238 ; The Ship Elizabeth i-. 
 Eickers, 2 Paine, C. C. 291 ; Ingraham v. Albee, Blatchf. & H. Adm. 289. 
 
 2 Lang V. Holbrook, Crabbe, 179 ; Freeman v. Baker, Blatchf. & H. Adm. 372. 
 
 3 The Rovena, Ware, 309, 320 ; Cloutman v. Tunison, 1 Sumner, 373 ; Coffin v. Jen- 
 kins, 3 Story, 108, 119. See also, cases post. 
 
 4 The second section of the Act of 1790, ch. 29, 1 U. S. Stats, at Large, 131, pro- 
 vides that if the mariner shall neglect to render himself on board, at the time mentioned 
 in the contract, and if the master, or other officer, shall, on that day, make an entry in 
 the log-book of the name of the mariner, and the time that he neglected to render him- 
 self (after the time appointed) ; such mariner shall forfeit for every hour which he shall 
 so neglect to render himself, one day's pay according to the rate agreed upon, to be 
 deducted out of his wages. And if he shall not render himself on board at all, or, 
 after he is on board, shall desert, then he forfeits the advance wages, and an equal sum 
 in addition. See Cotel v. Hilliard, 4 Mass. 664. 
 
 5 Act of 1790, ch. 29, § 7, 1 U. S. Stats, at Large, 134. It is provided ])y this sec- 
 tion that if the seaman, who has signed a contract to perform the voyage, shall desert, 
 or absent himself without leave, any justice of the peace within the United States may, 
 upon the complaint of the master, issue his warrant to apprehend the deserter and 
 bring him before him, and if it shall then appear that he had signed the contract and 
 that the voyage is not finished, altered, or the contract otherwise dissolved, the justice 
 shall commit him to the house of correction or common jail of the town, there to re- 
 main until the vessel is ready to sail, or the master requires his discharge, etc. The 
 Act of 1842, ch. 188, ^ 1, 5 U. S. Stats, at Large, 516, extended somewhat the powers 
 above set forth to United States commissioners. It has been held, that justices of 
 the peace alone have the power to try and commit deserting seamen and that commis- 
 sioners of the United States can only arrest and commit them for trial. Ex parte 
 Crandall, 2 Calif. 144. 
 
 6 Bray v. Ship Atalanta, Bee, Adm. 48 ; Brower v. The Maiden, Gilpin, 294 ; Sher- 
 wood r. Mcintosh, Ware, 109, 118. See also, cases ante, p. 466, note 2. 
 
 1 Malone v. Brig Mary, 1 Pet. Adm. 139. 
 
 ^ Act of 1790, ch. 29, § 7. If the voyage is broken up by a disaster, while he is im- 
 prisoned, he must be discharged. Sims v. Sundry Mariners, 2 Pet. Adm. 393 ; Bray v.
 
 en. XII.] DESERTION OF SEAMEN. 473 
 
 and all his property on board the ship, unless he is received 
 again on board, and he is liable to pay all damages and costs 
 sustained by the owner in hiring another seaman in his place.^ 
 
 By this statute, desertion seems to be defined as an " absence 
 from the ship for more than forty-eight hours without leave." ^ 
 
 Ship Atalanta, Bee, Adm. 48. The Act of 1829, ch. 41, 4 U. S. Stats, at Large, 359, 
 .provides for the appreliension and delivery of deserters from foreign vessels. See 
 In re Bruni, 1 Barb. 187. 
 
 1 The fifth section of the Act of 1790, ch. 29, § 5, 1 U. S. Stats, at Large, 133, pro- 
 vided that if the seaman absented himself without permission, and the specified entry 
 was made thereof in the log-boolv, if he should return to duty within forty-eight hours, 
 he should forfeit three days' pay for every day he was absent, but if he should be absent 
 for a longer time he should forfeit all the wages due, all his property on board, or 
 lodged in any store at the time of the desertion, to the use of the owners of the ship, 
 and should pay them all damages they might sustain by being obliged to hire other sea- 
 men in his place. This has been materially changed by the twenty-fifth section of the 
 Act of 1856, ch. 127, 11 U. S. Stats, at Large, 62, which provides that in case of deser- 
 tion in a foreign country, the fact and the date thereof shall be noted by the master or 
 commander on the list of the crew, and the same shall be officially authenticated at the 
 first port or place of consulate or commercial agency visited after such desertion, and if 
 there shall be no port visited where there is such an agency, or if the desertion occurred 
 in this country, the fact and time of such desertion shall be officially authenticated before 
 a notary-public immediately at the first port or place where such vessel shall arrive after 
 such desertion. The wages of the seaman, and his interest in the cargo if any, are for- 
 feited to the use of the United States, and are to be paid over to the collector of the port 
 where the crew are to be accounted for. The owners of the vessel may deduct any ex- 
 penses they have necessarily incurred in consequence of such desertion, and money 
 actually paid, or goods at a fair price supplied, or expenses incurred to, or for such 
 seaman. By the general maritime law desertion is a forfeiture of wages. Ord. Wisbuy, 
 art. 61 ; Hanse Towns, art. 53 ; 2 MoIIoy, ch. 3, § 10 ; Cloutman v. Tunison, 1 Sumner, 
 373; Coffin v. Jenkins, 3 Story, 108; The Rovena, Ware, 309 ; Spencer v. Eustis, 21 
 Maine, 519 ; The Brig Osceola, Olcott, Adm. 450, 461 ; The Brig Cadmus v. Matthews, 
 2Paine,C. C. 229 ; The Baltic Merchant, Edw. Adm. 86 ; The Pearl, 5 Rob. Adm. 224. 
 But the court is not obliged to pronounce an entire forfeiture in all cases, but may take 
 into consideration palliating circumstances not amounting to an excuse. Gifford v. 
 Kolloch, U. S. D. C, Mass., 19 Law Reporter, 21. 
 
 If a minor is shipped on a whaling voyage by his father, and, after serving several 
 years, deserts after having become of age, the fiither is entitled to his wages earned 
 during his minority. Coffin v. Shaw, U. S. D. C, Mass., 19 Law Reporter, 146. So 
 tlic minor, if he ships after the death of his father, may avoid the contract by deserting, 
 and recover on a quantum meruit. Vent v. Osgood, 19 Pick. 572. And if he ships 
 during the lifetime of his father, and then deserts, his father may recover for his services 
 prior to the desertion. Bishop v. Shepherd, 23 Pick. 492. 
 
 If there be a scries of voyages, wages earned in one will not be forfeited by a deser- 
 tion in a subsequent voyage. Piehl v. Balchcn, Olcott, Adm. 24. 
 
 - Act of 1790, ch. 29, ^ 5. An important question has arisen in regard to the con- 
 struction of this act. On the one hand it has been held, that as the statute defines the 
 offence of desertion, and provides the method by which it is to be proved, there can be 
 
 40*
 
 474 ON THE LAW OF SIIIPPI^Tg. [bOOK I. 
 
 And there must be an exact entry of the fact on the log-book set- 
 ting forth the circumstances, made on the day when the absence 
 begins ; ^ and it must be a continued absence for forty-eight sue- 
 
 no forfeiture of wages by the maritime law. This was the view taken by the District 
 Court for the Southern District of New York in numerous cases. See The Cadmus, 
 Blatchf. & H. Adm. 139; The Martha, id. l.'jl ; The Elizabeth Frith, id. 195; The 
 Union, id. 545, 555. The same view seems to have been taken in the Eastern District 
 of Pennsylvania. See Wood v. The Nimrod, Gilpin, 83 ; Snell v. The Independence, 
 id. 140; Knagg v. Goldsmith, id. 207. See also. The Schooner Phoebe v. Dignum, 1 
 Wash. C. C. 48 ; Brig Betsey v. Duncan, 2 Wash. C. C. 272 ; Herron v. Schooner 
 Peggy, Bee, Adm. 57. On the other hand Mr. Justice Stori/, in Cloutman v. Tunison, 
 1 Sumner, 373, 380, speaking of this act, said: "But, inasmuch as such prolonged 
 absence might endanger the safety of the ship, or the due progress of the voyage, it 
 deems forty-eight hours' absence without leave, to be ipso facto a desertion, and inflicts 
 upon it a total forfeiture of wages. It thus creates a statute desertion, and makes that 
 conclusive evidence of the fact, which would, upon the common principles of the mari- 
 time law, be merely presumptive evidence of it. It does not supersede the general 
 doctrine of the maritime law, or repeal it ; but merely in a given case applies a par- 
 ticular rule in paiiam, leaving the maritime law in all other cases in full efficiency." 
 Although these remarks are to a great extent obiter, there being neither maritime nor 
 statutable desertion in that case, yet the doctrine therein contained was fully sustained 
 by the same learned judge in a subsequent case. Coffin v. Jenkins, 3 Story, 108, and it 
 may now be considered as the settled construction. See The Brig Cadmus v. Mat- 
 thews, 2 Paine, C. C. 229 ; Barton v. Salter, U. S. C. C, Mass., 21 Law Reporter, 
 148 ; Ship Union v. Jansen, 2 Paine, C. C. 277 ; The Rovena, Ware, 309 ; The Brig 
 Osceola, Olcott, Adm. 450, 461. If a seaman remains on shore more than forty- 
 eight hours without leave, seeking redress before a public tribunal for an assault com- 
 mitted on board the vessel, it would seem that he could not be treated as a deserter. 
 Sherwood v. Mcintosh, Ware, 109. 
 
 1 Act of 1790, ch. 29, § 5, 1 U. S. Stats, at Large, 100. In Cloutman v. Tunison, 
 1 Sumner, 373, 381, Mr. Justice Story said : " To work the statute forfeiture, it is made 
 an indispensable condition that the mate, or other officer having charge of the log-book, 
 should make an entry therein of the name of such seaman, on the day on which he 
 shall so absent himself; and the entry must not merely state his absence, but that he is 
 absent without leave. The entry on the very day is, therefore, a sine qua non." See 
 also, Spencer v. Eustis, 21 Maine, 119; The Schooner Phcebe v. Dignum, 1 Wash. C. 
 C. 48; Brig Betsey v. Duncan, 2 id. 272; The Brig Cadmus v. Matthews, 2 Paine, C. 
 C. 229; The Rovena, Ware, 309, 312; Lord v. Kimball, Sup. Jud. Ct., Mass., 1804, 
 Abbott on Shipping, 648, n. ; The Cadmus, Blatchf. & H. Adm. 139; The Martha, 
 id. 151 ; The Union, id. 545 ; Wood v. The Nimrod, Gilpin, 83 ; Snell v. The Inde- 
 pendence, id. 140; Knagg v. Goldsmith, id. 207; Magee v. The Moss, id. 219; Hunt 
 V. The Brig Otis, Crabbe, 52 ; Bray v. Ship Atalanta, Bee, Adm. 48 ; Herron v. Sch. 
 Peggy, id. 57. In Ulary v. The Ship Washington, Crabbe, 204, the entry in the log- 
 book on the day the men left was " they ran away," and on subsequent days, "absent 
 without leave." Held, that the latter entries were explanatory of the first, and suffi- 
 cient. But see The Rovena, Ware, 309, 313. The entry is necessary although the 
 absence is permanent, Knagg v. Goldsmith, stipra. The entry in the log is not con- 
 clusive, and parol is admissible to falsify it. Malone r. The Brig Mary, 1 Pet. Adm.
 
 CH. XII.] DESERTION OF SEAMEN. 475 
 
 cessive hours.^ But where the absence, without leave, and with- 
 out good cause, does not come within the terms of this definition, 
 it is undoubtedly still an offence, punishable as such, and makes 
 the seaman responsible in damages for the consequences.'^ 
 It seems, however, that if the desertion takes place before the 
 vessel is moored on her arrival at the end of the voyage, it 
 is a statute desertion, working a forfeiture ; ^ but if it occurs 
 
 139, 140; Whitton I'. The Brig Commerce, id. 160 ; Jones r. The Brig Phoenix, id. 201 ; 
 Thompson v. The Ship Philadelphia, id. 210; The Rovena, Ware, 309, 312 ; Ornc v. 
 Townsend, 4 Mason, 541. Tiie question has arisen, in the case where a seaman goes 
 on shore without leave, and the sliip sails before the expiration of tlie forty -eight hours, 
 whetlier this amounts to a statute desertion, he being unable to return to the ship. Mr. 
 Justice Story, in Coffin v. Jenkins, 3 Story, 108, 113, speaking of this, said : " In short, 
 the argument went to this, that it was not a desertion at all, either by the maritime law 
 or under the statute, unless at the time of the seaman's leaving, he left it with the 
 intent absolutely to desert, or animo non reverttndi. To this doctrine I cannot, in any 
 manner, subscribe. I understand the statute to declare, that an absence from on board 
 the ship without leave, is a forfeiture of his wages, and a desertion, unless he actually 
 rejoins the ship within forty-eight hours ; and that it is at his own peril, under such cir- 
 cumstances, to absent himself; and if he is unable to rejoin the ship within the forty- 
 eight hours, the forfeiture is complete and absolute. The ship is not bound to wait for 
 him ; but he is bound to rejoin the ship within that period, suo perlcuh." This lan- 
 guage would clearly seem to embrace the case of a seaman leaving the ship without 
 leave, but with no intention of deserting. To this extent the remarks are obiter, for in 
 Coffin V. Jenkins, the seaman left animo non revertendi. In The Union, Blatchf. 
 & H. Adm. 545, 559, Mr. Justice BMs held, that where the seamen left, intend- 
 ing to return, if the ship sailed before the expiration of forty-eight hours, their 
 wages were not forfeited. But this ruling was reversed on appeal, Ship Union 
 V. Jansen, 2 Paine, C. C. 277. If the return is prevented by the act of the captain, 
 they are entitled to their wages. The Westmorland, 1 W. Rob. 216. If seamen, 
 who are absent without leave, attempt to return to the ship at night without saying who 
 they arc, or what they want, this is not a return, which will remit the forfeiture. 
 Ulary v. The Ship Washington, Crabbe, 204. See also, Allen v. Hallet, Abbott, Adm. 
 573. So, if they return, but refuse to do duty. The return must be unconditional. 
 The Brig Cadmus v. Matthews, 2 Paine, C. C 229. See also. The Ship Philadelphia, 
 Olcott, Adm. 216. 
 
 1 The Rovena, Ware, 309, 313; The Cadmus, Blatchf. & II. Adm. 1.19; Borden v. 
 Hiern, id. 293. 
 
 - In Cloutman v. Tunison, 1 Sumner, 373, a desertion was not proved, but the second 
 mate was absent without permission during the unlivery of the ship, and a forfeiture of 
 two months' wages was decreed. See also. The Rovena, Ware, 309, 317 ; Snoll v. The 
 Brig Independence, Gilpin, 140 ; Knagg r. Goldsmith, id. 207, 217 ; Lang v. Ilolbrook, 
 Crabbe, 179; The Ship Philadelphia, Olcott, Adm. 216 ; Herron v. Schooner Peggv, 
 Bee, Adm. 57 ; The Martha, Blatchf. & II. Adm. 151 ; Jansen v. The Ileinrich, Craiibe, 
 226. In Turner's Case, Ware, 83, it was held that the master might retake the person 
 so leaving and confine him on board, although it was in a home ])ort. 
 
 3 The Peari, 5 Rob. Adm. 224; The Baltic Merchant, Edw. Adm. S6.
 
 476 ON THE LAW OF SHIPPING. [bOOK I. 
 
 after she is moored, and before the full unlivery of the cargo or 
 the discharge of the crew, it is not a desertion under the law- 
 merchant,^ but gives to the ship-owner his claim for compensa- 
 tion in damages.^ A desertion of a part of the crew does not 
 exonerate the remainder from their obligation to perform their 
 duties, although it may make these duties more onerous.^ 
 
 SECTION IX. 
 
 OF THE CONTRACT OF THE SEAMEN. 
 
 We would add the general remark, that the contract between 
 a seaman and the owner of the ship, or the master as his agent, 
 is essentially a contract of hiring and service. All that is im- 
 plied in such contracts by the law generally belongs to their con- 
 tract;* as, on the one hand, the doing the work faithfully, obey- 
 ing all proper orders and directions, and possessing and exerting 
 the knowledge, skill, and care requisite for doing in a proper way 
 the service undertaken ; and, on the other, good treatment, and 
 due payment. All of these are somewhat modified by the 
 peculiar nature of this contract, or relation, and by the statutes 
 to which it has given rise. But so far as these modifications or 
 qualifications do not apply specifically, we find the general prin- 
 ciples of the law in force. 
 
 Seamen may be hired and payment promised in four ways. 
 They may be employed for a certain voyage, to receive a certain 
 
 1 Hastings v. The Ship Happy Return, 1 Pet. Adm. 253 ; Cloutman v. Tunison, 1 
 Sumner, 373 ; The Sliip Elizabeth v. Rickers, 2 Paine, C. C. 291 ; The Martha, 
 Blatchf. & H. Adm. 151, 157 ; Granon v. Hartshorne, id. 454 ; Knagg v. Goldsmith, 
 Gilpin, 207 ; Jansen u. The Heinrich, Crabbe, 226; Herron v. Schooner Peggy, Bee, 
 Adm. 57. See also, Frontine v. Frost, 3 B. & P. 302 ; M'Donald v. Joplin, 4 M. & 
 "W. 284; The Two Sisters, 2 W. Rob. 125. See contra, Webb v. Duckingfield, 13 
 Johns. 390. 
 
 - See cases supra, p. 475, note 2. 
 
 3 See ante, p. 448, note 1. 
 
 * The Dawn, Ware, 486, 494 ; The Brig Osceola, Olcott, Adm. 450, 461 ; The 
 Cadmus, Blatchf. & H. Adm. 139; Matthews v. The Cadmus, 2 Paine, C. C. 229.
 
 CH. XII.] CONTRACT OP THE SEAMEN. 477 
 
 proportion of the freight earned ; ^ but we doubt whether this is 
 ever practised in this country, unless, perhaps, in small coasting 
 vessels. They may be hired for a certain voyage,^ or by the run, 
 to be paid a round sum at the close ; ^ and this is not very un- 
 usual. They may be hired on shares, which is in practice con- 
 fined to whaling* and fishing voyages,^ with some exception in 
 the case of coasting vessels.^ But the fourth, which is by far the 
 most common and well-established practice, is to hire them for a 
 definite voyage or voyages, or sometimes for a definite period, on 
 monthly wages.' 
 
 1 The Sarah Jane, Blatchf. & H. Adm. 401 ; Anonymous, 1 Pet. Adm. 205, note. 
 
 2 Tlie Dcbrecsia, 3 W. Rob. 33. 
 
 3 The Louisa Bertha, 1 Eng. L. & Eq. 665; Miller v. Kelly, Alibott, Adm. 564. 
 
 * Barney v. Coffin, 3 Pick. 115; Bishop v. Shepherd, 23 Pick. 492; Coffin r. 
 Jenkins, 3 Story, 108; Joy v. Allen, 2 Woodb. & M. 303; Allen v. Hitch, 2 Curtis, 
 C. C. 147 ; The Sarah Jane, Blatchf. & H. Adm. 401 ; Reed v. Ilussey, id. 525. The 
 contract is one of hiring, and not of partnership. Wilkinson v. Frasier, 4 Esp. 182; 
 Mair v. Glcnnie, 4 M. & S. 240 ; The Frederick, 5 Rob. Adm. 8 ; Baxter v. Rodman, 
 3 Pick. 435 ; Grozier v. Atwood, 4 id. 234 ; Bishop v. Shepherd, 23 id. 492 ; Reed v. 
 Hussey, Blatchf. & H. Adm. 525; Knight v. Parsons, U. S. D. C, Mass., 18 Law 
 Reporter, 96. In the above case of Barney i.-. Coffin, it was held that a usage that the 
 master of a whaling ship should have a lien on the lays of the seamen for necessary 
 clothing furnished during the voyage was reasonable in its nature, and that the lien was 
 not lost by putting the oil marked with the ship's mark on a wharf, whence part of it 
 was taken by one of the owners of the vessel but afterwards returned and delivered up 
 to a general agent to be sold for the purpose of settling the voyage. In Jay v. Almy, 
 1 Woodb. & M. 262, it was held that the master of a whaling ship is not personally 
 responsible for the wages of a seaman, when the vessel has been lost, and the cargo 
 sent home. In Ilussey v. Fields, U. S. D. C, Mass., 20 Law Rei)orter, 673, eight 
 hundred barrels of oil had been sent home, and two thousand more taken when the 
 ship put into a foreign port and was condemned and sold. Tiie master settled with 
 the men for their share on board and gave them orders on the owners for their propor- 
 tion of the eight hundred barrels. The other portion was handed over to the consul to 
 be sent home, when it was illegally seized and sold. The owners claimed, that as the 
 crew were only entitled to sliare the net profits of the voyage, the portion they had 
 received should be deliitcd to them as against the whole amount of oil realized by the 
 voyage. But the court held, that the ca]itain, in making the disposition of the prop- 
 erty, acted as the agent of the owners and not of the crew, and that the latter were 
 entitled to their proportion of the eight hundred barrels. 
 
 5 See Wait v. Gil)bs, 4 Pick. 298. 
 
 6 The Crusader, Ware, 437, 441. 
 
 7 Tiie Brig Cadmus v. Matthews, 2 Paine, C. C. 229 ; The Cadmus, Blatchf. & IT. 
 Adm. 139. See also, The Steamboat Hudson, Olcott, Adm. 396. It is sometimes 
 important to determine whether the contract is for the entire voyage at so much per 
 month, or for that rate so long as tlie party remains during the voyage. In Taylor v. 
 Laird, 1 H. & N. 266, 38 Eng. L. & Eq. 281, the following letter was Avritten to the
 
 478 ON THE LAW OF SHIPPING. [book I. 
 
 If a female serves on board as a cook, or in any capacity, she 
 is entitled to all the rights and is subject to all the disabilities of 
 a seaman.^ 
 
 plaintiff by the owner of the vessel : "I am willing to give you the command of the 
 steamer destined for an exploring and trading voyage up the River Niger and its tribu- 
 taries. Your pay to be at the rate of £50 per month, commencing from the first of 
 December, 1853, and a commission of twenty per cent, on the net proceeds of the 
 produce you may bring down." The plaintiff accepted the offer. Held, that this was 
 not an entire contract for the whole voyage, but a contract which gave a cause of action 
 for the salary as each month arose, and which, when once vested, was not subject to be 
 lost, or divested by the plaintiff's abandonment of the voyage. 
 
 - The Jane and Matilda, 1 Hagg. Adm. 187 ; Wolverton r. Lacey, IT. S. D. C., 
 Ohio, 18 Law Reporter, 672; Sageman v. Scb. Brandywine, 1 Newb. Adm. 5.
 
 CH. XIII.] WHO PILOTS ARE AND WHAT THEIR DUTIES. 479 
 
 CHAPTER XIII. 
 
 OF PILOTS. 
 
 SECTION I. 
 
 WHO PILOTS ARE AND WHAT THEIR DUTIES ARE. 
 
 This word had formerly, and now has, perhaps, in some of the 
 countries of Europe, two meanings ; one was the pilot for the 
 whole voyage, or the sea-pilot,^ the other is the pilot who carried 
 the ship out of or into the harbor to which the pilot belonged, or 
 the coast-pilot. But it is only in the latter sense that the word 
 is used with us. He is for many purposes considered as a mar- 
 iner or seaman; 2 but has duties and rights which are quite 
 peculiar to him. The office is one of so much importance, that 
 it is regulated by law in most civilized countries. In this coun- 
 try, an act of Congress ^ expressly authorizes the several States 
 to make their own pilotage laws ; and questions under these 
 laws are cognizable in the State courts.'^ The State statutes 
 
 1 L'Ord. de la Marine, liv. 2, tit. 4. See also, Keclcr v. Fireman's Ins. Co. 3 Hill, 
 250. 
 
 2 Boss V. Walker, 2 G. Wilson, 264 ; Tlie Anne, 1 Mason, 508 ; Hobart v. Drogan, 
 10 Pet. 108. 
 
 3 Act of 1789, ch. ix. § 4, 1 U. S. Stats, at Large, 54. See Appendix, post. By 
 the Act of 1837, ch. xxii., 5 U. S. Stats, at Large, 153, the master of any vessel com- 
 ing into or going out of any port situate upon waters which are the boundary between 
 two States, may employ a pilot duly licensed by cither State. 
 
 * In The Wave, Blatchf. & H. Adm. 235, it was held that the United States courts 
 had concurrent jurisdiction with the State courts to entertain suits for pilotage. On 
 appeal the decision was reversed, on the ground that the act of Congress which adopted 
 the State laws, was passed prior to the passage of the Judiciary Act, and that cases of 
 pilotage were therefore not embraced in the general delegation of admiralty jurisdic- 
 tion to the district courts. Schooner Wave v. Hycr, 2 Paine, C. C. 131. See also, 
 Marshall, C. J., in Gibbonk v. Ogden, 9 Wheat. 1, 207 ; Low v. Commissioners of Pilot-
 
 480 ON THE LAW OF SHIPPING. [bOOK I. 
 
 difTer somewhat; but we give in the Appendix the principal 
 provisions enacted by pilot commissioners in pursuance of the 
 power given them by the statutes of New York and Massachu- 
 setts, to one or other of which those of the other States gener- 
 ally conform.^ It will be seen that no persons can act as such, 
 but those who are regularly commissioned. 
 
 It is true that any person may undertaiie to guide his own or 
 another's vessel anywhere ; but he cannot claim the compensa- 
 tion allowed by law for this service unless he be duly appointed ; 
 nor can he claim any compensation for the service if he falsely 
 pretended to have a commission, or as it is technically termed, a 
 branch, and obtains. the direction of the ship by this pretence; 
 but he is liable not only civilly in damages, but criminally for 
 any losses or injuries resulting from his falsehood. Every pilot 
 
 age, K. M. Charlt. 302, 314. But in Hobart v. Drogan, 10 Pet. 108, Mr. Justice Stonj 
 held that the United States courts had a concurrent jurisdiction with the State courts, 
 although the pilot's compensation was established by the law of the State in which the 
 action was brought. See also, The Anne, 1 Mason, 508 ; Dexter v. Bark Richmond, 
 U. S. D. C, Mass., 4 Law Reporter, 20. The State laws are entitled to a liberal con- 
 struction, as they are especially designed to promote the interests of commerce, and to 
 protect the lives and property of the citizens engaged in it. Smith v. Swift, 8 Met. 
 332. The law of 1789, provides that pilots shall be governed by the existing laws of 
 the States, and also by future laws, " until further legislative provision shall be made 
 by congress." Since this act was passed the several States have enacted new laws, or 
 modified the old laws to a great extent. If the power to regulate commerce belongs 
 exclusively to Congress by the Constitution, Congress has no power to delegate that 
 power to the several States, though it may adopt the acts which they have already 
 passed, and they then become of force. But they are then acts of Congress and cannot 
 be changed by the States, unless Congress has the power to adopt prospectively subse- 
 quent State laws. But Marshall, C. J., in Gibbons v. Ogden, 9 Wheat. 1, 218, declared 
 that Congress cannot enable a State to legislate. We are therefore driven to the alter- 
 native, that either all the pilot acts passed by the several States since 1789, are void, 
 or that the States have concurrentjurisdiction over the subject. And this latter view has 
 been adopted by the Supreme Court of the United States in the case of Cooley v. The 
 Board of Wardens of the Port of Philadelphia, 12 How. 299. Mr. Justice Curtis, in 
 delivering the opinion of the court, said : " It is the opinion of the majority of the 
 court that the mere grant to Congress of the power to regulate commerce, did not de- 
 prive the States of the power to regulate pilots, and that although Congress has legis- 
 lated on this subject, its legislation manifests an intention, with a single exception, 
 not to regulate this subject, but to leave its regulation to the several States. To these 
 precise questions, which are all we are called on to decide, this opinion must be undei"- 
 stood to be confined." Mr. Justice Wayne delivered a very able dissenting opinion, 
 which is worthy of an attentive perusal. 
 
 1 For decisions under the State statutes, see Tilley v. Farrow, 14 Mass. 17 ; Ayers 
 V. Knox, 7 Mass. 306; Shepherd v. Mitchell, 10 Johns. 112; Heridia v. Ayres, 12 
 Pick. 334 ; Hunt v. Card, 14 Pick. 135 ; and cases infra.
 
 CH. XIII.] WHO PILOTS AKE AND WHAT THEIR DUTIES. 481 
 
 should always have with him the evidence of his authority ; for 
 this designates the kind of vessel he may undertake to pilot.^ Of 
 course it is easy to pilot a vessel in proportion as she draws less 
 water, and difficult as she draws more. Therefore those who 
 have been in the service but a certain time, can pilot only the 
 lightest vessels, up to a certain limit; as they have more expe- 
 rience and skill, they are authorized to take charge of larger ves- 
 sels; and their authority increases with their experience accord- 
 ing to defined and established rules, until they may pilot vessels 
 of any size. 
 
 No vessel is bound to take on board a pilot, either going in or 
 coming out of a harbor ; but if a pilot offers and is ready, the 
 ship must pay pilotage fees, whether he is taken on board or 
 not.^ If the pilot refuses to direct the course of the vessel for 
 good reasons, or because the state of the tide or of the wind or 
 weather would endanger the ship if she attempted egress or 
 ingress, but offers to wait until she can move in safety, and then 
 pilot her, we should hold this not as a refusal, but as an offer on 
 the part of the pilot, and therefore as entitling him to claim 
 the fees. 
 
 It is not necessary, to constitute " a valid ofTer of his services," 
 that the pilot should go on board, and tender them to the master. 
 If he hail the vessel when the pilot boat is so near, and in such 
 a position that the hail was heard on board the ship, or might 
 have been, if the officers and crew had been on duty, this is suf- 
 ficient.^ 
 
 In some of our ports the pilots form a kind of association, 
 and take the duty of going out with a ship or lying out in the 
 
 1 Hammond v. Blake, 10 B. & C. 424 ; Commonwealth v. Eickctson, 5 Met. 412, 
 426. 
 
 " Nifkcrson v. Mason, 13 Wend. 64; Commonwealth v. Rickctson, 5 Met. 412; 
 Smith V. Swift, 8 id. 329 ; Martin v. Hilton, 9 id. 371 ; Hunt v. Mickey, 12 id. 346 ; 
 Hunt ?\ Carlisle, 1 Graj% 2.57; Gcrrish v. Johnson, 1 N. C. Law, 335; Beckwith v. 
 Baldwin, 12 Ala. 720. But if lie offers himself and is refused, he cannot maintain an 
 action for work and labor done. Donaldson v. Fuller, 3 S. & R. 505. Sec also the re- 
 marks of Shaw, C. J., in Winslow v. Prince, 6 Cush. 368, 370. The master is bound to 
 approach the pilot ground carefully, and if in the night, he must hold out a light, and 
 wait a rcasonal)lc time for a pilot, and approach one if he can do so with safety. Bol- 
 ton V. American Ins. Co., 3 Kent's Comm. 176, n. (a). 
 
 3 Commonwealth v. Rickctson, supra. But see Peake v. Carrington, 2 Brod. & B. 
 399. 
 
 VOL. I. 41
 
 485 ON THE LAW OF SHIPPING. [bOOK I. 
 
 offing for one, by turns. In others, each pilot gets what he can ; 
 and in such ports the pilots, as might be expected, are, if not 
 more alert, more adventurous, and go further out to sea to board 
 the incoming vessels. It is said to be common for New York 
 pilots to meet ships approaching om* coast, at one or two hun- 
 dred miles distant ; and the question has arisen whether they 
 have at once the same authority, and rights and responsibility, as 
 when they are near or entering their harbors. We know of no 
 adjudication on this subject; but do not believe that the courts 
 will recognize as a coast-pilot^ one who is so far from the land, 
 that he can discharge no duties but as sea-pilot, or able sea- 
 man. Some of our coasting steamers carry a pilot^with them. 
 Thus, for example, the steam-packets between Boston and Phila- 
 delphia have on board a pilot, who has no duties to perform until 
 the vessel is near the Delaware river. 
 
 While a pilot is on board (unless, with the exception arising 
 from extreme distance), he has the absolute and exclusive con- 
 trol in the absence of the master, nor is the master liable for 
 any accident which may then happen.^ How it is when the 
 master is present may not be so certain. So far, however, as we 
 can gather the law from books or from practice, we should say 
 that the pilot has the control of the ship as soon as he stands on 
 the deck.^ But no such absolute control is wholly to supersede 
 the master; for it remains in the master's power, and it is his 
 duty, to observe the pilot,^and in a case of obvious and certain 
 
 1 Siiell V. Rich, 1 Johns. 305. 
 
 2 In Aldrich v. Simmons, 1 Stark. 214, an action of case was brought against the 
 owner of a vessel for the negligence of the pilot who was employed both by the owner 
 and by the master. The pilot was called as a witness for the defendant who had re- 
 leased him. It was objected that the master should also have given a release. But 
 Gibhs, C. J., held that he was competent without a release, since the captain could not 
 be responsible to the owner for the misconduct of the pilot. Bowcher v. Noidstrom, 
 1 Taunt. 568, was a case where an action was brought against the master, not for the 
 negligent act of the pilot, but for a wilful injury on his part, and it was held that the 
 master was not liable. There is also a dictum to the effect that a master is not liable 
 in Yates v. Brown, 8 Pick. 24, per Parker, C. J. But in Denison v. Seymour, 9 
 Wend. 9, where an action was brought against the master of a steamboat for damage 
 caused by a collision, and it was proved that at the time the master was on board but 
 not on deck, and that the pilot was chosen by the owners, and at the time was at the 
 wheel, and had the exclusive command of the vessel, the master was held liable. See 
 also, United States v. Forbes, Crabbe, 558 ; United States v. Lynch, 2 N. Y. Legal 
 Observer, 51.
 
 CH. XIII.] WHO PILOTS ARE AND VTUAT THEIR DUTIES. 483 
 
 disability, or dangerous ignorance or mistake, to disobey him 
 and dispossess him of his authority.^ And although a master, 
 
 1 The question of the respective rights and duties of the pilot and master, has come 
 up in several recent cases in England, in regard to the liability of owners of vessels 
 for torts or acts of negligence of the pilot, it being held, under their pilots acts, as we 
 shall presently see, that if the injury is occasioned by the negligence of the pilot alone, 
 the owners are not responsible, but otherwise if there is negligence in the master, either 
 in acts of commission or omission. In The Girolamo, 3 Hagg. Adm. 169, 176, the 
 collision arose from the vessel's going on in a fog, and it was argued that the master 
 was in pari delicto from not having interposed and brought the vessel up. Sir John 
 Nicholl expressed a strong opinion in favor of tliis view, but left the point undeter- 
 mined. In The Lochlibo, 3 \V. Rob. 310, 1 Eng. L. & Eq. 651, it was held that it 
 was solely the duty of the pilot to determine when the vessel should be brought up ; 
 and on appeal this decision was atTirmed. Pojlok v. McAlpin, 7 Moore, P. C. 427. 
 The court said: "It was contended at the bar that, in this case, the impropriety of 
 sailing through the Downs was so manifest, that the captain ought to have refused in 
 spite of the»{5ilot's opinion. But we cannot assent to this. It would be very dangerous 
 to hold, that there can be any divided authority in the ship with reference to the same 
 subject, and whether the ship was to anchor or to proceed, was a matter which we 
 think belonged exclusively to the pilot to decide." See also, The Maria, 1 W. Rob. 
 95. It is the duty of the pilot to select the time and place of coming to anchor. The 
 George, 2 W. Rob. 386; The Massachusetts, 1 W. Rob. 371. So when a vessel is 
 taking her berth, the time and manner of dropping the anchor arc exclusively within 
 the province of the pilot. The Agricola, 2 W. Rob. 10. And the manner of catting 
 it, preparatory to bringing up for the purpose of taking a berth is within the province 
 of the pilot. The Gipsey King, 2 W. Rob. 537. But in Griswold v. Sharpe, 2 Calif. 
 17, it was held, that it was the duty of the master or harbor master to select a proper 
 berth, and not the pilot's. But it is provided by statute that the pilot shall moor the 
 ship safely where the master of the vessel, or the harbor master direct. Compiled 
 Laws of Cal., ch. viii. § 24. In The Diana, f W. Rob. 131, affirmed, Stuart v. 
 Isemongcr, 4 Moore, P. C. 11, it was held to be the duty of the master to see that a 
 good look-out was kept, although a pilot M'as on board. The court said : "Although 
 the directions of the pilot may be inqierative upon them" (the master and crew), "as 
 to the course the vessel is to pursue, the management of the ship is still under the 
 control of the master." s. r. Netherlands S. B. Co. v. Styles, Privy Council, 40 Eng. 
 L. & Eq. 19. If two vessels are entangled together, and they can be separated by cut- 
 ting away part of the rigging, it is the duty of the master to give orders about it. The 
 Massachusetts, 1 AV. Rob. 371. And in The Christiana, 7 Notes of Cases, 2, affiimed 
 Hammond v. Rogers, 7 Moore, P. C. 160, it was held to be the duty of the master to 
 have the top-gallant and main royal yards sent down when this was necessan,-. When 
 the pilot is remiss in his duty, it is difficult to determine with precision to what extent 
 the master is Ijound to interfere. In the case of The Maria, 1 W. Rob. 95, 110, Dr. TaisH- 
 incjton said : " It would be a most dangerous doctrine to hold, except under most extra- 
 ordinary circumstances, that the master could be justified in interfering with the pilot in 
 his proper vocation. If the two authorities could so clash, the danger would be mate- 
 rially augmented, and the interests of the owners, which are now protected both by 
 the general princijiles of law, and specific enactments from liability for the acts of the 
 pilot, would be most severely prejudiced." In Netherlands Steamboat Co. r. Styles 
 40 Eng. L. & Eq. 19, a case where, in consequence of a defective look-out, a barge
 
 484 ON THE LAW OF SHIPPING. [bOOK I. 
 
 if present, is not answerable for any ordinary accident or injury 
 arising from the pilot's default, he would be answerable if it 
 arose from such act or default on the pilot's part, as, within the 
 rule just stated, made it the master's duty to repossess himself 
 of the control and direction of the ship. 
 
 SECTION II. 
 
 HOW FAR OWNERS ARE RESPONSIBLE FOR THE TORTS OF PILOTS. 
 
 The pilot is the servant of the owner. And if the owner is 
 not obliged to take a pilot, the law only securing to him, and 
 appointing a sufficient pilot if he \yishes one, it follows that the 
 owner is responsible for injuries resulting from the default of the 
 pilot.i In England it is provided by statute that no owner or 
 
 was sunk by a swell caused by the steamer, the court said that if the look-out had 
 informed the pilot, of the barge, and he had insisted on going on, the owners would 
 have been discharged. See also, Pollok v. McAlpin, supra ; The Christina, 3 W. 
 Rob. 27. But, " it is the duty of the master to observe the conduct of the pilot, and 
 in the case of palpable incompetency, whether arising from intoxication, or ignorance, 
 or any other cause, to interpose his authority for the preservation of the property of 
 his employers." The Duke of Manchester, 2 W. Rob. 470, 480. Affirmed on appeal. 
 Shersby v. Ilibbert, 6 Moore, P. C. 90. See also. The Christiana, 7 Notes of Cases, 
 2 ; Hammond v. Rogers, 7 Moore, P.C. 160 ; The Joseph Harvey, 1 Rob. Adm. 306,311. 
 If the pilot goes below for a few minutes, leaving the second mate in command, with 
 general directions how to steer, and a collision occurs partly through the foult of this 
 officer, the ship is responsible. The Mobile, Privy Council, 20 Law Reporter, 172. 
 In The Lochlibo, 3 W. Rob. 329, 1 Eng. L. & Eq. 651, 656, it was held that if there was a 
 hail from the look-out to alter the helm, and the pilot altered it without exercising his 
 own judgment, the owners of the vessel would be liable. Speaking of interference on 
 the part of the master or crew, Dr. Lushington said : " I should never go the length 
 of saying that the mere suggesting to the pilot on the part of the master to take in 
 this sail, or otherwise to keep as near the South Sand light, and vice versa, or to bring 
 the ship up, was interfering, in the legal acceptation of the term, with the duties of the 
 pilot ; illegal inteiference is of a different description. If, for example, in this case 
 the boatswain had called out to the men below to starboard the helm, or if the master 
 called out tor port the helm, it would be interference, but it would not be interfer- 
 ence to consult the pilot, or to suggest to him that the measures pursued were not 
 proper, or that other measures would in all probability be attended with greater 
 success." 
 
 1 The Attorney-General v. Case, 3 Price, 302; The Neptune, 1 Dods. 467; The
 
 en. XIII.] OWNERS RESPONSIBLE FOR TORTS OF PILOTS. 485 
 
 master of any ship or vessel shall be answerable for any loss or 
 damage which shall happen to any person or persons, by reason 
 of any neglect, default, incompetency, or incapacity of any 
 licensed pilot in charge of the vessel in pursuance of the pro- 
 visions of the act.^ It was formerly held, under this statute, 
 that if there was a pilot on board, and there was a neglect in 
 the navigation of the vessel, it was 2Jrimd facie attributable to 
 him.2 But the rule is now well established, that as the owners 
 claim an exemption from a general liability by reason of a 
 special legislative enactment, the burden is on them to show 
 in order to bring themselves within the provisions of the enact- 
 ment, that the pilot was alone in fault.'' The eighty-ninth section 
 
 Transit, cited 1 W. Rob. 50 ; The Eden, 2 W. Eob. 442 ; Yates v. Brown, 8 Pick. 23 ; 
 Bussy V. Donaldson, 4 Dall. 206 ; Williamson v. Price, 16 Mart. La. 399 ; Pilot Boat 
 Washington v. The Saluda, U. S. D. C, S. Car., April, 1831 ; The Bark Lotty, 
 Olcott, Adm. 329; Smith v. The Creole, 2 Wallace, C. C. 485 ; The Carolus, 2 Curtis, 
 C C. 69. In this case the vessel was going out of the harbor with a pilot on board 
 who was employed by the owner of the vessel, and the vessel was held liable. Mr. 
 Justice Curtis said : "If the pilot in charge of this ship had not been selected and em- 
 ployed by the owner, but had been received by the master in obedience to a requisition 
 of law, enforced by a penalty, then, under the authority of Can-uthers v. Sydebotham, 
 4 M. & S. 77; The Maria, 1 W. Rob. 95; and The Agricola, 2 id. 10, the owners 
 would seem not to be liable for the misconduct or mismanagement of the pilot. But 
 in this instance the pilot has testified that he was employed by the owner of the ship ; 
 and no such case is made by the answer as would compel an owner to receive a pilot 
 on board under the statute laws of Massachusetts." 
 
 1 6 Geo. 4, c. 125, § 55. In England it is well settled that if the pilot is alone in 
 fault the owners are not liable. Bcnnct v. Moita, 7 Taunt. 258 ; Ritchie v. Bowsficld, 
 id. 309 ; MTntosh v. Slade, 6 B. & C. 657 ; The Christiana, 2 Hagg. Adm. 183 ; The 
 Protector, 1 W. Rob. 45 ; The Maria, id. 95 ; The Duke of Sussex, id. 270 ; Tlie 
 Vernon, id. 316; The Agricola, 2 W. Rob. 10; The Fama, id. 184; The George, id. 
 386 ; The Batavier, id. 407 ; The Atlas, id. 502 ; The Gipsey King, id. 537. 
 
 2 Bennet v. Moita, 7 Taunt.*258 ; The Christiana, 2 Hagg. Adm. 183 ; The Vernon, 
 1 W. Rob. 316. 
 
 3 The Protector, 1 W. Rob. 45; The Diana, 1 W. Rob. 131, affirmed Stuart v. 
 Iscmonger, 4 Moore, P. C. 11 ; The Rijmn, 6 Notes of Cases, 245; The Christiana, 7 
 Notes of Cases, 2, affirmed Hammond v. Rogers, 7 Moore, P. C. 160. See also, Tiie 
 Massachusetts, 1 W. Rol). 371 ; Rodrigues v. Mclhuish, 10 Exch. 110, 28 Eng. L. & 
 Eq. 474 ; Tlic Mobile, Prify Council, 20 Law Reporter, 172 ; Netherlands S. B. Co. v. 
 Styles, Privy Council, 40 Eng. L. & Eq. 19. In The Batavier, 2 W. Rob. 407, the 
 pilot had been in the constant employ of the owners for fifteen years, but as he was 
 alone in fault the owners were held not liable. In The Christiana, supra, the pilot had 
 done his duty by bringing the vessel to the Downs, where she ancliorcd, but as he 
 could not leave on account of bad weather the owners were held entitled to the legal 
 protection which his presence gave them. Sec also, Lacey v. Ingram, 6 M. & W. 302. 
 The 87th section of the 6 Geo. 4, c. 125, provided that nothing in the act contained 
 
 41*
 
 486 ON THE LAW OF SHIPPIXG. [BOOK I. 
 
 of this statute provides that the act shall not extend to ports in 
 relation to which special provisions have been made in any par- 
 ticular act or acts of parliament. It would clearly seem that by 
 this section the general act does not apply to the ports of Liver- 
 pool and Newcastle, and it has been so held.^ The Liverpool and 
 Newcastle acts contain no clause similar to that in the general 
 statute of 6 Geo. 4, but provide merely, that a master shall take 
 a pilot on board or shall pay pilotage. This is similar to our 
 own statutes, and the question arises whether the pilot can be 
 said to be taken on board by such compulsion that the owner is 
 not liable for his acts. In England the weight of authority is 
 clearly in favor of exonerating the owner.^ But in this country 
 the question does not seem to be fully determined.^ 
 
 should extend to, affect, or impair the jurisdiction of the High Court of Admiralty. 
 Sir Jolm NichoH construed this to mean that the act only applied to the common law 
 courts, and that the vessel was still liable in rem although there was a pilot ou board. 
 The Girolarao, 3 Hagg. Adm. 169. See also, The Baron Holberg, 3 Hagg. Adra. 
 244 ; The Gladiator, id. 340 ; The Eolides, id. 367 ; Smith v. The Creole, 2 Wallace, 
 C. C. 485, 518. But it is now well settled in England that the clause above cited means 
 that the Court of Admiralty shall retain its jurisdiction to administer the law as altered 
 by the act, and therefore, the vessel is not liable if the pilot is alone in foult. The 
 Protector, 1 W. Rob. 45, 52, and cases supra. 
 
 1 Attorney-General v. Case, 3 Price, 302. The King's Bench, in Carruthers v. 
 Sydebotham, 4 M. & S. 77, were of a different opinion. The Supreme Court of the 
 United States, in a case of collision happening in the port of Liverpool between two 
 American vessels, seemed to consider it settled by the English admiralty cases that the 
 owners were not liable if there was a pilot on board. Smith v. Condry, 17 Pet. 20, 1 
 How. 28. It is to be, observed, however, that the cases cited are The Maria, 1 W. Bob. 
 95; The Protector, id. 45; The Diana, id. 131. The last two cases were decided 
 under the general act, and are, therefore, not authorities to the point that the 55th sec- 
 tion applies to the Liverpool act. In The Maria, supra, which was a case under the 
 Newcastle act, which is similar to the Liverpool, Dr. Lushington said he doubted very 
 much whether he could apply the 55th section of the general act to the'case of a New- 
 castle pilot. He expresses the same doubt also in the subsequent case of The Agricola, 
 2 W. Rob. 10. i. 
 
 '■^ The Court of King's Bench, in Carrathers v. Sydebotham, 4 M. & S^ 77, and th«j 
 Court of Exchequer, in Attorney-General v. Case, 3 Price, 302, have arrived at oppo*^ 
 site conclusions in regard to the construction of the Liverpool act. In the former case 
 it was held, that the taking a pilot on board was compulsory, and the owners, there- 
 fore, were not liable. In the latter case a different o])inion was expressed, but the facts 
 of the case did not call for it. The vessel was lying at anchor in the river ilersey. 
 By the 31st and 34th sections of the Liverpool act, it is provided, that anj' vessel, 
 whilst lying at anchor, may require a pilot to remain on board upon payment of five 
 
 ^ It would seem to have been the opinion of ^Ir. Justice Curtis, in the case of The 
 Carolus, 2 Curtis, C. C. 69, cited ante, p. 484, note 1, that had the vessel been home-
 
 cii. xiil] owners responsible for torts of pilots. 487 
 
 If a ship neglects to take a pilot that off'ers, the owners will 
 be answerable in damages to shippers or others, for any loss 
 which may happen by reason of their neglect or refusal.^ And 
 pilots themselves are answerable like other persons for any harm 
 which they may do, by negligence or default.^ 
 
 shillings a day for his services. The pilot was retained ou board, and the owners were 
 held liable. This case, therefore, is not an authority against the construction of the 
 act, as laid down in Carruthcrs v. Sydebotham. See also, Rodrigues v. Melhuish, 10 
 Exch. 110, 28 Eng. L; & Eq. 474. It was held, in The Montreal, 24 Eng. L. & Eq. 
 580, where a pilot had j^n taken on board under the Liverpool act to pilot the vessel 
 to the Queen's Docks at Liverpool, and had subsequently anchored in the river Mersey, 
 and came into collision the next day while proceeding up the river, that the vessel was 
 not liable, the pilot being alone to blame. And in The Maria, 1 W. Rob. 95, and The 
 Agricola, 2 W. Rob. 10, cases under the Newcastle act, it was held, that if the master 
 was obliged to take a pilot on board or to pay full pilotage, such a taking was by com- 
 pulsion and the owners were not liable. In both these cases the vessels were homeward 
 bound. 
 
 1 See M'Millan v. Union Ins. Co., 1 Rice, 248 ; Keeler v. Fireman's Ins. Co., 3 Hill, 
 250. And in an English case, where a vessel, seized on justifiable grounds, as 
 appeared by tlie condemnation of a part of her cargo, was lost by the neglect of the 
 captors to take a pilot on board, the Court of Admiralty decreed restitution in value 
 against them. The William, 6 Rob. Adm. 316. But if no pilot can be obtained, and 
 the most judicious course is for the master to attempt to go into port without one, 
 the owners will not be responsible for a loss happening in consequence of his so 
 doing. Vansycklc v. The Sch. Thomas Ewing, U. S. D. C, Penn., 3 Law Reporter, 
 449. 
 
 2 Yates ('. Brown, 8 Pick. 24; Hcridia v. Ayres, 12 id. 334 ; Campbell v. William- 
 
 ward bound, so that the master would have been obliged to have taken the first pilot 
 that offered, or have paid full pilotage, that the owners of the vessel would not have 
 been liable for the collision. Let us see then whether this opinion is repugnant to the 
 American authorities. In Yates v. Brown, 8 Pick. 23, the vessel was outward bound. 
 In Biyssy i: Donaldson, 4 Dall. 200, and in Williamson v. Price, 16 Mart. 399, it does 
 not appear which way the vessels were going. In the case of The Bark Lotty, Olcott, 
 Adm. 329, it was contended that the exerai)tion from liability continued after the vessel 
 was moored to the wharf by the pilot. But the court, very properly, decided other- 
 wiie. Smith v. The Creole, 2 Wallace, C. C. 485, was also a case of an outward 
 
 «nd vessel. This case was argued at great length, and a very learned opinion pro- 
 need by Mr. Justice Grier, to the effect that the Pennsylvania act, which provides 
 ; every vessel shall be ohiif/ed to receive a pilot, or in default thereof, shall pay a sum 
 equal to half pilotage, is not compulsory. Such also, is the opinion of Mr. Justice 
 Story; Story on Agency, § 456 a, note 1. In Griswold v. Sharpe, 2 Calif. 17, it was 
 said that when a vessel is properly in charge of a licensed pilot, the owner is not respon- 
 sible for damages which may ensue for his negligence or misconduct. But in that case, 
 the master being in f^ault, the owners were held liable. It will thus be seen that there 
 is no deckioH in opposition to the suggestion thrown out by Mr. Justice Curtis, though 
 it cannot be denied that the principles and reasonings upon which the authorities arc 
 based, are against it.
 
 488 ON THE LAW OF SHIPPING. [BOOK I. 
 
 son, 2 Whart. Dig. C80. See also, Slade v. The State, 2 Carter, 33. In Lawson v. 
 Dumlin, 9 C. B. 54, an actio#was brouglit agairfst a pilot for negligently running into 
 the ship of the plaintiff. The pilot, at the time, was in command of another A-essel. 
 He wits held liable. In Stort v. Clements, Peake, 107, the general rule was admitted, 
 but as the collision took place in consequence of the pilot steering the vessel according 
 to the direction of the officer in charge, he was not held responsible. If a steamboat 
 is hired for the purpose of towing a vessel, to which she is fastened, and both arc under 
 the direction of a licensed pilot, if the steamboat is injured in the course of the navi- 
 gation, the owner of her is not entitled to damages, unless it was caused by the undue 
 negligence of the pilot. Reeves v. The Ship Constitution, Gilpin, .579. 
 
 If a pilot refuses to board a vessel he is liable for damages eivilly and criminally. 
 Commissioners of Pilotage v. Low, R. M. Charlt. 298.
 
 en. XIV.] MATERIAL MEN AND TIIEIR LIENS. 489 
 
 CHAPTER XIV. 
 
 OF MATERIAL MEN AND THEIR LIENS. 
 
 The persons employed to repair the ship, or in general, to do 
 any work about her, and those who furnish for her use supplies 
 of things necessary to her equipment and safe navigation, are 
 known in the law of shipping, as material men ; they arc defined 
 in Jacobsen's Sea Laws as " the persons who furnish and con- 
 struct the different materials of a ship ; " ^ but a somewhat 
 broader sense is usually given to this phrase, and Lord Stoivell, 
 in one case, cited a report of Sir Leoline Jenkins, made to the 
 king, in which that learned judge said : " Those are commonly 
 called' material men, whose trade it is to build, repair, or equip 
 ships, or to furnish them with tackle and provision necessary in 
 any kind."^ Those who build a sjiip or who furnish sup- 
 plies to a ship that is building, are not, however, now con- 
 sidered as having a lien upon it by the maritime law, as will 
 be seen presently. It has been held, that a ship broker who ob- 
 tains a crew for a vessel has a lien on her for his services and 
 for advances for their wages.^ And a person who lends money 
 for the use of a foreign ship has the same privilege as a material 
 man.^ But stevedores have no lien in rem for their services in 
 loading a vessel.^ Nor can they sue in personam for their 
 services, in admiralty.^ They may, however, proceed against 
 
 1 Page 357, note. 
 
 2 The Neptune, .3 Ilagg. Adm. 120, 142. 
 8 The Gustavia, Bhitchf. & II. Adm. 189. 
 
 ♦ Davis V. Child, Daveis, 71. See also. The Sophie, 1 "W. Rob. 368. 
 
 s Tiic Amstel, Blatchf. & 11. Adm. 215; The Bark Joseph Cunard, Olcott, Adm. 
 120; M'Dermott v. The S. G. Owens, 1 Wallaec, Jr., 370. 
 
 •^ Cox V. Murray, Abbott, Adm. 340. The action in this case was to recover dam- 
 ages for the breach of an c.vecutory contract, no services having been actually per- 
 formed. But the language of the court, both in this case and in those cited in the pre- 
 ceding note, fully sustains the position of the text.
 
 490 ON THE LAW OP SHIPPING. [bOOK I. 
 
 remnants in the registry.^ And a person employed to visit a 
 vessel from time to time to see to her safety, ventilate her, and 
 try her pumps, etc., cannot sue in the admiralty to recover com- 
 pensation for his services, but he can maintain a suit if he navi- 
 gates the vessel from one anchorage to another.^ And a person 
 hired to scrape the bottom of a vessel preparatory to her being 
 coppered, cannot sue in admiralty.^ So the expense of com- 
 pressing a cargo for the purpose of more convenient stowage, 
 the cost of advertising the vessel for sea, portage, commissions 
 for procuring freight, and wages of lightermen, do not give a 
 lien on the ship.^ Nor has a ship broker any lien on the vessel 
 for services in drawing a contract between the owner of horses 
 shipped as part of the cargo, and persons who were to accom- 
 pany the vessel and take charge of the horses, as hostlers.^ And 
 the general agent of the owners of a steamboat cannot sue in 
 admiralty for the balance of an account for money expended in 
 paying for supplies, repairs, and advertising of the boat, or for 
 his commissions on the disbursements.*' 
 
 That is deemed necessary which a careful and prudent owner 
 would supply." 
 
 By the general maritime law, and the civil law from which 
 many of its provisions are derived, all material men have a lien 
 
 1 Emerson v. Proceeds of The Pandora, 1 Newb. Adm. 438. 
 
 2 Gurney v. Crockett, Abbott, Adm. 490. 
 
 3 Bradley v. Bollcs, Abbott, Adm. 569. 
 
 * The Bark Joseph Cunard, Olcott, Adm. 120. 
 
 6 The Gustavia, Blatchf. & H. Adm. 189. 
 
 6 Minturn v. Maynard, 17 How. 477. 
 
 ■? The Alexander, 1 W. Rob. 346. We have seen that if a vessel belongs to one 
 State and supplies are furnished in another, the master has no authority to give a bot- 
 tomry bond. And it is said, in Pratt v. Reed, 19 How. 359, that the necessity which 
 authorizes the master to impose a lien in the one case, differs from the necessity which 
 authorizes the giving a bond, only ifl respect to the maritime interest. It has accord- 
 ingly been held, in a recent case in New York, by Belts, J., that where a vessel is owned 
 in New Jersey and supplies are furnished in New York, no lien is created by the 
 maritime law. Beach v. Sch. Native, U. S. D. C, N. Y. In Sarchet v. The 
 Sloop Davis, Crabbe, 185, a chain cable was loaned by its maker to a master for 
 the use of his vessel, under an agreement that it should be returned when another 
 chain cable had been made, and delivered on board. The second cable was made and 
 delivered on board, when the master agreed to return the first in a specified time. Be- 
 fore this time arrived the vessel sailed, and the cable was never returned. The court 
 held that the vessel was liable for both. Water casks are included in "materials." 
 Zane v. The Bri^ President, 4 Wash. C. C. 453.
 
 en. XIV.] MATERIAL MEN AND THEIR LIENS. 491 
 
 on the ship.^ This was asserted also, and enforced in the admi- 
 ralty courts in England, until they were compelled to abandon 
 this jurisdiction in the reign of Charles 11.^ Since then, this lien 
 has been confined in that country (until a statute passed in 1840 
 gave a lien to material men generally),^ to the case of a ship- 
 wright or other person to whom possession of the ship has been 
 given for the purpose of repair ; he might retain his possession 
 for his wages or charges as any other workman may any chattel 
 (a tailor, clothing ; a watchmaker, a watch ;) by the common 
 law of bailment.^ This is undoubtedly in force in this country.^ 
 But our admiralty courts claim and exercise a full jurisdiction 
 over all these claims and questions, and give to all material men 
 a lien on the ship ; provided the supplies were necessary and 
 could be obtained only by a credit on the vessel.^ 
 
 1 Dig. 14, 1, 1 ; Casaregis, Disc. 18; Ord. de la Mar. liv. 1, tit. 14, art. IG ; 1 Valin, 
 Com. 363 ; Consulat de la Mer, par Boucher, ch. 32, 33, 34. It is generally stated 
 that this principle of the maritime law is derived from the civil law. See The General 
 Smith, 4 Wheat. 438, 443 ; The Nestor, 1 Sumner, 73, 79 ; The Stephen Allen, Blatchf. 
 &H. Adm. 175, 177. But this has been shown to be ipcorrcct. The Young Mechanic, 
 2 Curtis, C. C. 404; The Calisto, Daveis, 29, 31. 
 
 2 In the case of The Zodiac, 1 Hagg. Adm. 320, 32.5, Lord Stowell remarked : " In most 
 of tSie countries governed by the civil law, repairs and necessaries form a lien on the 
 ship itself. In our country, the same doctrine had for a long time been held by the 
 maritime courts, but, after a long contest, it was finally overthrown by the courts of 
 common law, and by the highest judicature in the country, the House of Lords, in 
 the reign of Charles II." See Hoare v. Clement, 2 Show. 338 ; Justin v. Ballara, 1 
 Salk. 34, 2 Ld. Raym. 805 ; Watkinson v. Bcrnadiston, 2 P. Wms. 367 ; Wilkins r. 
 Carmichael, 1 Doug. 101 ; Ex parte Shank, 1 Atk. 234. See also. The Neptune, 3 
 Hagg. Adm. 129, 140; The John, 3 Rob. Adm. 170. 
 
 '^ 3 & 4 Vict. ch. 65, ^ 6. For decisions under this act see The Alexander, 1 W. 
 Rob. 288; The Sophie, id. 368; The Ocean Queen, id. 457 ; The Ocean, 2 W. Bob. 
 S68. 
 
 * Ex parte Bland, 2 Rose, 91 ; Franklin v. Hosier, 4 B. & Aid. 341 ; The Vibilia, 1 
 W. Rob. 1, 6. But he cannot detain the vessel against tlie autiiority of the Court of Ad- 
 miralty, when the ship is in the possession of its officer, though that court Mill then 
 protect his rights. The Harmonic, 1 W. Rob. 178. 
 
 !> Nicholson v. May, Wriglit, 660 ; The General Smith, 4 Wheat. 438, per Story, 
 3. ; The Sch. Marion, 1 Story, 68. 
 
 * Pratt V. Reed, 19 How. 359. It has accordingly I)een held, that it must be proved 
 that the owner had no funds or credit on wliicli to procure the supplies except the 
 credit of the vessel. Brown v. Propeller Albany, U. S. D. C, N. Y., Boston Courier, 
 Feb. 13, 1858. Mr. Justice Curtis has, however, said, after speaking of the decision in 
 Pratt V. Reed, that " the liens given by the local law do not depend on the same re- 
 quirements." The Young Sam, 20 Law Reporter, 608, 610.
 
 492 ON THE LAW OF SHIPPING. [eOOK I. 
 
 This lien or "privilegium," by the civil law and the general 
 maritime law, extends to all ships without any distinction between 
 foreign and domestic vessels.^ Here, however, it is otherwise ; and 
 there is no lien on domestic ships, unless it is given by the law 
 of the State in which the supplies are furnished.^ For the pur- 
 pose of this distinction, each of our States is considered foreign 
 to the rest ; so that material men in New York would there have 
 a lien in admiralty for work done on a Philadelphia ship.^ So 
 
 1 Sec supra, p. 491, note 1. 
 
 2 In regard to domestic ships we have seen that if the builder, or person making 
 repairs, retains possession, he has a common law lien. This may be enforced in admi- 
 ralty. The Schooner Marion, 1 Story, 68, 72. The case of Peyroux v. Howard, 7 Pet. 
 324, seems to rest upon this principle, for the Civil Code of Louisiana, under which the 
 case was decided, gives no greater privilege than a material man has in other States by 
 the common law. But if the possession is parted with, it is well settled that this lien 
 is gone. The General Smith, 4 Wheat. 438 ; The St. Jago de Cuba, 9 id. 409 ; Bud- 
 dington v. Stewart, 14 Conn. 404; Boon v. The Hornet, Crabbe, 426; Tree v. The 
 Indiana, id. 479 ; The Stephen Allen, Blatchf. & H. Adm. 17.5 ; TurnbuU v. The Ship 
 Enterprise, Bee, Adm. 345 ; Clinton v. The Brig Hannah, id. 419. In cases of foreign 
 ships the lien does not depend upon possession. North v. Brig Eagle, Bee, Adm. 78 ; 
 The Jerusalem, 2 Gallis. 345 ; Ex parte Lewis, id. 483 ; Zane v. The Brig President, 
 4 Wash. C. C. 453; The Gustavia, Blatchf. & H. Adm. 189; The Schooner Active, 
 Olcott, Adm. 286 ; Cole v. The Atlantic, Crabbe, 440 ; Tree v. The Indiana, id. 479. 
 If a vessel is in her home port, but held out by her owners as a foreign vessel, it seems 
 that material men, who rejjair her, or furnish supplies, will have a lien, if the imposi- 
 tion practised upon them is such as to mislead men of ordinary vigilance. The St. 
 Jago de Cuba, 9 Wheat. 409. So if a vessel puts into an enemy's port, and pretends 
 to be a neutral, her owners are liable. Musson v. Fales, 16 Mass. 332. Though the 
 vessel is in a foreign port, yet if the owners are present, or if they have an agent there, 
 who will advance what is necessary, there is no lien. Boreal v. The Golden Eose, 
 Bee, Adm. 131 ; Shrewsbury v. Sloop Two Friends, id. 433 ; Pritchard v. Schooner 
 Lady Horatia, id. 167. The case of North v. Brig Eagle, id. 78, is perfectly consistent 
 with these cases, for the supplies were furnished on the express stipulation that the ves- 
 sel should be liable, and the owners were not known. See also, Williams v. The Polly, 
 cited Bee, Adm. 168. 
 
 3 This doctrine has grown out of a dictum in the case of The General Smith, 4 
 Wheat. 438, but it may now be considered as settled. See Pratt v. Eeed, 19 How. 
 359 ; The Brig Nestor, i Sumner, 73 ; The Barque Chusan, 2 Story, 455 ; Leland v. 
 The Ship Medora, 2 Woodb. & M. 92; Davis v. Child, Daveis, 71 ; Sarchet v. The 
 Sloop Davis, Crabbe, 185; The Stephen Allen, Blatchf. & H. Adm. 175; Nickerson 
 V. Schooner Monsoon, U. S. D. C, Mass., 5 Law Eeporter, 416 ; Eeeder v. The 
 Steamship George's Creek, U. S. D. C, Maryland, 3 Am. Law Eegister, 232; Dudley 
 V. The Steamboat Superior, 1 Newb. Adm. 176 ; Leddo v. Hughes, 15 111. 41. But 
 see Beach v. Sch. Native, U. S. D. C, N. Y., ante, p. 490, note 7. If it is in contro- 
 versy to which State a vessel belongs, the enrolment made under oath by the managing 
 owner, pursuant to the act of congress, requiring it to be made at the port nearest the 
 residence of the owner, is prima, facie evideuco that the vessel belonged to that port,
 
 CH. XIV.] MATERIAL MEN AND THEIR LIENS. 493 
 
 far as this jurisdiction belongs to the admiralty courts and is 
 practised there, we shall not treat of it at length until we reach 
 this topic in our chapters on Admiralty. But many of our States 
 ha,ve, by statute, given this lien to material men against ships in 
 their home ports.^ We must refer to these statutes for their es- 
 
 and will require clear proof of the notorious residence of the owner or owners at some 
 other place to overcome it ; and the presumption is strengthened by the fact that the 
 boat has on its stern its registered name, and the name of the port of enrolment. 
 Dudley v. The Steamboat Superior, supra. In Tree v. The Indiana, Crabbe, 479, the 
 enrolment was considered as conclusive. But this position was held to be incorrect 
 in Hill V. The Golden Gate, 1 Newb. Adra. 308. Taney, C. J., in a case before him 
 in the Circuit Court of Delaware, mentioned in Sarchet v. The Sloop Davis, Crabbe, 
 185, doubted whether a vessel built in Delaware, where her owner lived, and brought 
 up to Philadelphia for the purpose of being rigged, without being enrolled or licensed, 
 could be considei'cd as a foreign vessel, so as to give the court jurisdiction. In Weaver 
 V. The S. G. Owens, I Wallace, Jr., 359, it was said that tlic residence of the owner 
 determined whether a vessel was domestic or not, and for this purpose the person right- 
 fully in possession, or having the control of the vessel by appointing the officers, would 
 be considered as owner whether he was lessee, mortgagee, or parol vendee, even though 
 some other person might be the registered owner and have the legal title or general 
 ownership in himself. And in Hill v. The Golden Gate, 1 Newb. Adm. 308, the char- 
 terers who were in possession were considered as the owners, and the supplies being 
 furnished in the port where they resided, the vessel was held not to be liable. But in 
 Thomas v. Osborn, 19 How. 22, 29, it was held, that the master, though he was the 
 charterer, could bind the vessel for necessary repairs in a foreign port. It was held, in 
 The Sch. Active, Olcott, Adm. 286, that a ship built in this country for alien residents 
 abroad, was a foreign vessel, and could be libelled for supplies furnished on her first 
 voyage, although she had not been documented conformably to the laws of this coun- 
 try or of the domicil of her foreign owners. See also, Parmlee v. The Charles Mears, 
 1 Newb. Adm. 197. Bftt in Scott v. The Plymouth, 1 Newb. Adm. 56, 6 McLean, C. 
 C. 463, it was held, that a vessel built at Cleveland under a contract with parties resi- 
 dent at Buffalo, in New York, belonged to Cleveland until after her delivery and first 
 voyage. 
 
 1 Maine, Eev. Stats, ch. 91, § G-14; New Hampshire, Compiled Statutes of 1853, 
 tit. XV. ch. 139 ; Massachusetts, Acts of 1848, ch. 290, Acts of 1855, ch. 231 ; New 
 York, 2 Rev. Stats. Dcnio and Tracy's ed., 733, Act of 1855, ch. 110, amending 
 the preceding statute, and Act of 1858, ch. 247, providing for the registry of liens 
 and incumbrances upon boats navigating the canals of the State ; Laws of Pennsyl- 
 vania, Dunlop's ed., 681, Act of 1858, No. 404; Georgia, Cobb's Dig. 426, Act of 
 1852, No. 137 ; Alabama, Code of 1852, p. 491 ; Florida, Stat, of 1847, Thompson's 
 Dig. 413, Act of 1848, ch. 268, Act of 1850, ch. 406; Arkansas, Kev. Stats. 
 ch. 14; Tennessee, Act of 1833, ch. 35; Kentucky, Act of 1839, ch. 1088, 
 Act of 1841, ch. 267; Statutes of Ohio, Swan's ed., 1854, p. 185, ch. 26; Compiled 
 Laws of Michigan, 1857, ch. 149, vol. 2, p. 1313; Indiana, Rev. Stats. 1852, vol. 2, p. 
 183; Illinois, Rev. Stats. 1845, p. 71, Ed. of 1858, vol. 2, p. 785; Missouri, Rev. 
 Stats. 1855, vol. 1, p. 302; Iowa, Code of 1851, p. 293, Act of 1854, ch. 125 ; Wis- 
 consin, Rev. Stats. 1849, ch. 116; Laws of California, First Session, p. 189, ch. 75, 
 § 2, Compiled Laws of 1853, p. 576, ch. 6, § 318. In Louisiana a similar privilege 
 exists under the general Spanish law. Sec Bourcier v. Schooner Ann, 1 Mart. La. 
 VOL. L 42
 
 494 ON THE LAW OF SIIIPriNG. [BOOK I. 
 
 pecial provisions, which do not, however, generally differ very 
 much from the rules of admiralty in relation to the same lien. 
 We will here state some of the results of adjudication upon them. 
 In New York the lien of the builder attaches as soon as the 
 structure assumes the form of a ship.^ The statute does not 
 apply to canal boats.^ But it has been held to apply to an old 
 steamboat which was fitted up as a theatre, and used as such at 
 different river ports, and the vessel was held liable though some 
 of the supplies were furnished for the theatre.^ A debt for goods 
 furnished is not contracted till the goods are actually delivered, 
 and an agreement to deliver is not enough.^ If the creditor per- 
 mits the vessel to sail without enforcing his lien he loses it, but 
 if she sails en a trial trip merely, for the purpose of testing her 
 machinery, this is not a departure within the statute.^ So, if she 
 leaves the State in a fraudulent manner, at a time when she 
 was not legally liable to arrest.^ Where repairs were put on a 
 boat running from New York to Albany, at different times 
 under one general order to repair the boat when necessary, it 
 was held that the contract was not an entire or indivisible one, 
 but that each job constituted a separate debt, and that every trip 
 of the boat was a departure within the statute.' Wood for fuel 
 
 165. See also. The Civil Code, art. 2748, and the case of Peyroux v. Howard, 7 Pet. 
 324, 341. 
 
 1 Phillips V. Wright, 5 Sandf. 342. 
 
 2 Many v. Noyes, 5 Hill, 34. But special provision is made for canal boats by the 
 Act of 1858, c. 247. 
 
 3 Pendleton v. Franklin, 3 Seld. 508, affirming the same case, Franklin v. Pendleton, 
 3 Sandf. 572. 
 
 * Veltman v. Thompson, 3 Comst. 438; The Alida, Abbott, Adm. 173. 
 
 ^ Hancox v. Dunning, 6 Hill, 494. 
 
 ^ The Steamboat Joseph E. Coffee, Olcott, Adm. 401. See also, Nicholson v. May, 
 Wright, 660. By the statute under which these decisions were made, the debt ceased 
 to be a lien at the expiration of twelve days after the day of departure to a port within 
 the State. And in all cases the lien was to cease immediately after the tcsscI's leaving 
 the State. This is amended by the Act of 1855, so that the lien remains in force till 
 the expiration of sixty days after the return of the vessel to the port at which she 
 was when the debt was contracted, but in all cases the lien ceases immediately after 
 the vessel leaves such port, unless within ten days after such departure, a specification 
 of the lien is sworn to and filed in the county clerk's office of the county where such 
 lien is created. 
 
 "! Rockefeller v. Thompson, 2 Sandf. 395; The Alida, Abbott, Adm. 165. The 
 same rule was laid down in a suit against the same boat, for coal furnished at different 
 times under one agreement. Abbott, Adm. 173.
 
 CH. XIV.] MATERIAL MEN AND THEIR LIENS. 495 
 
 has been held in New York not to be included within the term 
 " supplies." ^ But in Illinois the point has been determined the 
 other way .2 And in New York it has been held to come within 
 the term " stores." ^ In Maine the lien is on the vessel while 
 building, and continues for four days after she is launched. If 
 the materials are sold on time, and this time is not elapsed at 
 the expiration of the four days, the lien is gone.'* The materials 
 must be actually used in the construction of the vessel, and it is 
 not sufficient that they were furnished under a representation 
 that they were to be used.^ The statute does not embrace tools 
 or other articles used by the workmen in doing their work, but 
 only materials which go into the ship and make part of it when 
 finished.® Nor has a person a lien who procures insurance on a 
 
 1 Johnson v. Steamboat Sandusky, 5 Wend. 510; The Fanny, cited Abbott, Adra. 
 185. 
 
 2 Clark V. Smith, 14 111. 3G1. 
 
 3 Crooke v. Slack, 20 Wend. 177; The Alida, Abbott, Adm. 173, 185. 
 
 * Scudder v. Balkam, 40 Maine, 291. See also, The Kearsarge, Ware, 2d ed. 546, 
 550. 
 
 ^ Taggart r. Buckmore, 21 Law Reporter, 51. It was also held in this case that if 
 the materials were furnished for one vessel and used in another, the lien would attach 
 to the latter; and that if some of the materials were used and others not, and judg- 
 ment should be -obtained for the amount of the whole, the lien would be waived, as 
 the value of the articles not used would be merged in the judgment, and could not be 
 separated from the other part. In The Young Sam, U. S. C. C, 20 Law Reporter, 
 608, Mr. Justice Curtis held, that under the Maine statute, the party furnishing the 
 materials must have reference to some particular vessel, in the construction or repairs 
 of which tlie lien was intended to be created. And a doubt was expressed whether 
 any case could come within the statute, if the particular vessel had not begun to bo 
 built before the sale of the materials. In Sewall v. The Hull of a New Ship, Ware, 
 2d ed. 565, the libellant furnished timber to ship-builders, who, at the time, were 
 building the vessel, against which the lien was sought to be enforced. Nothing was 
 said at the time that the timber was to be used for any particular vessel, and it did not 
 appear that it was charged in the books to this vessel. The court held that no lien 
 existed. So it is not sufficient to prove that the materials were sold for the declared 
 purpose of being used in the building of the vessel, but their positive use must be 
 shown. And if only part was used, the material man must show what that was. 
 Phillips I'. Wright, 5 Sandf. 342. Sec also, Clark v. Smith, 14 111. 361. In The 
 Kicrsagc, 2 Curtis, C. C. 421, it was held, overruling the decision of the Disti-ict 
 Court, in tlie same case. Ware, 2d ed., 546, that if materials arc furnished for two 
 vessels, being built for the ^me person, the party furnishing them has not a lien on 
 one vessel for all the materials, but only for what was used in the vessel proceeded 
 against, though both the vessels were of the s.ime size and model. 
 
 ^ The Kearsarge, Ware, 2d ed. 546. In Ames v. Dyer, 41 Maine, 397, it was held 
 that no lien existed for materials furnished for the moulds of the ship, or for labor em- 
 ployed in making the same.
 
 496 ON THE LAW OF SHIPPING. [bOOK I. 
 
 cargo of timber purchased for and used in the construction of a 
 ship, he being no otherwise interested in the timber. But it 
 would seem that he would have the lien, were he the furnisher 
 of the materials.^ ■ 
 
 The Massachusetts statute of 1848, provided that if the ves- 
 sel sailed from one port in the State to another, the lien should 
 cease at the expiration of twenty days after the day of depart- 
 ure ; and in all cases should cease after the vessel's arrival at a 
 port out of the Commonwealth. In one case the vessel sailed 
 from Newburyport for Boston, but in consequence of head winds 
 and a dense fog, put into Portsmouth in New Hampshire, and 
 it was held that the lien was lost.^ The statute of 1855 gives a 
 lien to certain persons when money is due to them by reason of 
 any contracts express or implied with the owners of any ship or 
 vessel, etc. It has been held that the word "owners" means 
 special as well as general owners, so that a person repairing a 
 vessel under a contract made with a special owner has a lien.^ 
 Under the third section of the statute providing for the mode of 
 enforcing the lien in the State court, it has been held that the 
 petition cannot be filed until the sum has remained unpaid sixty 
 days after it was payable.* A trench excavated in front of the 
 
 1 The Kearsarge, Ware, 2d ed. 546, 549. Sir. Justice Ware, in this ease said : 
 " Another item in the account objected to, is a charge of insui'ance paid by the libel- 
 lants on a cargo of timber procured for the ship and used in her construction. Had 
 such a charge been made by the vendor and furnisher of the materials, it might per- 
 haps, like the freight, be allowed as part of the cost of materials at the place of de- 
 livery, unless by the bargain they were to be delivered at the ship-yard of the builders, 
 and then the insurance, as well as freight, would be involved in the price. But the 
 insurance here was procured by a stranger, and if he can claim in this libel, it must 
 be in the character of a material man. But the mere payment of insurance on a cargo 
 of lumber, though actually furnished for the ship and used in the construction, cannot 
 give him the character of a furnisher of materials in the sense of the law." 
 
 - The Sam Slick, 2 Curtis, C. C. 480, reversing the decree of the District Court, 
 Hooper v. The Sam Slick, 18 Law Eeporter, 162. 
 
 3 Hawes v. Bark James Smith, U. S. D. C, Mass., 1858. The owner of the vessel 
 in this case made a contract of sale by which the vendees were to have possession of 
 the vessel, and if not paid for within a certain time, possession was to revert to the 
 owner. While in the possession of the vendees repairs were put upon the vessel, and 
 it was held that these constituted a lien upon her which" as enforced after the original 
 owner had resumed possession in consequence of a breach of the condition. 
 
 * Tyler v. Currier, S. J. C, Mass., 20 Law Reporter, 657. See also, as to the 
 proper mode of serving the petition, Patrick v. Tafts, Superior Court, Suffolk Co., 
 Mass., 21 Law Reporter, 163.
 
 CH. XIV.] MATERIAL MEN AND THEIR LIENS. 497 
 
 launching ways of a ship for the purpose of deepening the 
 water, does not make part of the launching ways within the 
 statute.^ 
 
 In Pennsylvania the lien continues until the vessel goes to 
 sea, although the owner becomes bankrupt before her departure.^ 
 Among others mentioned in this statute are ship-chandlers, to 
 whom a lien is given for articles used in the jfitting, furnishing, 
 and equipping of a vessel ; and it has been held that every debt 
 contracted with a ship-chandler for articles or materials used for 
 any of these purposes is within the law.^ 
 
 If a barge is necessary to a steamboat, its hire to it will be 
 regarded as a material furnished for its equipment.* And, in 
 some States, money loaned to a person to enable him to build a 
 vessel, gives the lender a lien ; in others it does not.^ 
 
 1 Wooly V. Ship Peruvian, TJ. S. D. C, Mass., 1858, 21 Law Reporter, 153. 
 
 " Shoemaker v. Norris, 3 Yeates, 392. 
 
 ^ Weaver v. The S. G. Owens, 1 "Wallace, Jr. 358. The articles, for which the 
 lien was enforced, were "ropes, ship-tools, sea-stores, provisions, glass and Britannia 
 ware, china, crockery, pencils, varieties of hardware, including cooking stoves, cooking 
 utensils, muskets and other fire-arms," which latter were taken for defence upon a Cali- 
 fornia voyage around Cape Horn. 
 
 * Amis V. Steamboat Louisa, 9 Mo. 621; Gleim v.- Steamboat Belmont, 11 Mo. 
 112; Steamboat Kentucky v. Brooks, 1 Greene, Iowa, 398. 
 
 ^ Lawson v. Higgins, 1 Mann. Mich. 225. See also. The Kearsarge, Ware, 2d ed. 
 546. Nor is there any lien if the money is loaned to pay wages, and it is actually 
 applied to that purpose. Steamboat P. H. White v. Levy, 5 Eng. 411 ; or for the 
 use of the boat generally. McGuire v. Canal Boat Kentucky, 20 Ohio, 62 ; Dewitt v. 
 Schooner St. Lawrence, 3 Ohio State, 325. If the statute of Illinois does apply to 
 such a case, the party lending the money must show that a necessity existed. Leddo 
 V. Hughes, 15 111. 41. And in Pearsons i-. Tincker, 36 Maine, 384, it was held that if 
 a person pays off the claim of one who has a lien on the vessel, at the request of the 
 debtor, he does not acquire a right to enforce the lien in his own name, or in that 
 of his assignee. And if a person indorse a note given by the master of a vessel 
 for supplies furnished, and pay the same at its maturity, he does not thereby become 
 subrogated to the rights of the person furnishing the supplies, so as to have a lien 
 on the boat. Hays v. Steamboat Columbus, 23 Mo. 232. So goods furnished a master 
 of a vessel to supply the place of goods lost in the course of transportation are not 
 "supplies." Bailey v. Steamboat Concordia, 17 Mo. 357. But in the same State it is 
 held that a note given for money loaned to a person to enable him to purchase a ves- 
 sel is a lien upon it. Steamboat Lebanon v. Grevison, 10 Mo. 536. So if the money 
 is lent with the understanding that it is to be appropriated to the debts of the vessel, 
 but otherwise not. Bryan v. Steamboat Pride of the West, 12 Mo. 371 ; Phelps v. 
 Steamboat Eureka, 14 Mo. 532. So if goods are furnished the master of a boat, to 
 enable him therewith to purchase wood and other necessaries, a lien is created. Steam- 
 
 42*
 
 49S ON THE LAW OP SHIPPING. [BOOK I. 
 
 In Ohio, if a person has engaged to build and deliver a boat 
 at a future day at a specific price, and has delivered it accord- 
 ingly, he cannot afterwards proceed against it in the hands of a 
 third person, to recover for materials, supplies, and labor, ex- 
 pended in building it.^ 
 
 In Michigan there is no lien for supplies furnished while a 
 vessel is being built.^ In Missouri, if the supplies are furnished 
 on the order of the steward, engineer, or mate, with the knowl- 
 edge or consent of the master, they are considered as ordered 
 by him.^ 
 
 This lien extends beyond mere repairs ; certainly to the alter- 
 ations of a vessel,^ and perhaps to its reconstruction ; but not to 
 its original construction,^ unless the statute includes ship-build- 
 
 boat General Brady v. Buckley, 6 Mo. 558. These cases depend somewhat upon the 
 peculiar provisions of the State statutes, under which they were decided. 
 
 1 Canal Boat Etna v. Treat, 15 Ohio, 585, 16 Ohio, 276. 
 
 2 Lawson v. Higgius, 1 Mann. Mich. 225. 
 
 8 Voorhees v. Steamboat Eureka, 14 Mo. 56. See also, generally, Ge<|Fge v. Skeates, 
 19 Ala. 738 ; Leddo v. Hughes, 15 111. 41 ; Steamboat P. H. White v. Levy, 5 Eng. 
 411 ; Flint Eiver Steamboat Co. v. Roberts, 2 Florida, 102. 
 
 * The Ferax, U. S. D. C, Mass., 12 Law Reporter, 183. 
 
 s In Clinton v. Brig Hannah, Bee, Adm. 419, it was held that a shipwright could 
 not sue in rem for his wages for building a vessel. And in a case before Taney, C. J., 
 in the United States Circuit Court of Delaware, cited in Crabbe, 199, it was doubted 
 whether the rigging of a new vessel came within the views or language of the mari- 
 time laws which give a lien to material men for repairs. But in Parmlee v. The 
 Charles Mcars, 1 Newb. Adm. 197, a contract for building a vessel, made with the 
 owners in another State, was enforced. This question came before the court in a 
 recent case. People's FeiTy Co. v. Beers, 20 How. 393. The libel was filed against 
 the vessel in rem to recover the balance due on a contract for building the vessel. The 
 libellant resided in New Jersey, and the respondent in New York. The vessel was 
 built in New Jersey and delivered to the owner in New York previous to the bringing 
 of this action. There was no lien given by any New Jersey statute, and the only 
 question was whether the contract for building a vessel was of such a maritime nature 
 that it could be enforced in admiralty. The court said : " The lien attaches toYoreign 
 ships and vessels only in favor of the carpenter who repairs in a case of necessity, and 
 in the absence of the owner. It would be a strange doctrine to hold the ship bound, in a 
 case where the owner made the contract in writing, charging himself to pay by instal- 
 ments for building the vessel at a time when she was neither registered nor licensed as a 
 sea-going ship. So far from the contract being purely maritime, and touching rights and 
 duties appertaining to navigation (on the ocean or elsewhere), it was a contract made 
 on land, to be performed on land." The case of Cunningham v. Hall, which we have 
 already referred to, ante, p. 69, was an action in personam against the builder to 
 recover damages for the breach of an implied contract to build a sea-worthy vessel.
 
 CH. XIV.] MATERIAL MEN AND THEIR LIENS. 499 
 
 ing.^ These statute liens take precedence of the claims of all 
 other creditors.^ But a laborer employed in general work by a 
 shipwright or mechanic engaged upon the vessel, and who is 
 
 "When the case came before iMt circuit court, it was dismissed for want of jurisdiction, 
 on the ground that the contract was not one of a maritime nature. The decision was 
 given by Clifford, J., September 6, 1858. 
 
 1 The lien given by a State statute to persons building a vessel, has been enforced in 
 admiralty in numerous cases. The Calisto, Daveis, 29, s. c. nom. Read v. The 
 Hull of a New Brig, 1 Story, 244; The Hull of a New Ship, Daveis, 199; The 
 Young Mechanic, Ware, 2d ed. 535, 2 Curtis, C. C. 404; The Kearsarge, Ware, 2d 
 ed. 546, 2 Curtis, C. C. 421 ; Purinton v. The Hull of a New Ship, Ware, 2d ed. 
 556, 2 Curtis, C. C. 416; Sewall v. The Hull of a New Ship, Ware, 2d ed. 565; 
 Davis V. A New Brig, Gilpin, 473. And in The Ship Harriet, Olcott, Adm. 229, and 
 The Ship Harvest, id. 271, services which were not maritime in their nature, were 
 enforced in admiralty, as they were made a lien on the vessel by the State law. But 
 in the above case of the People's Ferry Co. v. Beers, 20 How. 893, the court said : 
 "It is proper, however, to notice the fact, that district courts have recognized the 
 existence of admiralty jurisdiction in rem against a vessel to enforce a carpenter's bill 
 for work and materials furnished in constructing it, in cases where a lien had been 
 created by the local law of the State where the vessel was built. Thus far, however, 
 in our judicial history, no case of the kind has been sanctioned by this court." Mr. 
 Justice Belts has acted upon the above suggestion in a late case by holding that the 
 lien given by a State statute for building and equipping a vessel could not be enforced 
 in admiralty. The Sch. Coernine, U. S. D. C, N. Y., 1858, 21 Law Reporter, 343. 
 A contrary ilecision was given in the case of The Revenue Cutter No. 1, U. S. D. C, 
 Ohio, 21 Law Reporter, 281. An action was brought i)i rem by a person furnishing 
 materials to the original contractor, under the statute of Ohio, which gives a lien to 
 parties building a vessel, and to those who furnish materials for building. The 
 assignees of the original builders intervened as claimants, alleging a lien by virtue of 
 their contract with the owner. The court held that as the contract between the 
 builders and owners was not a maritime contract no lien existed, in their favor ; that 
 there was no privity of contract between the libellant and the owner, but, for the sup- 
 plies furnished to the builders a lien was given by the State law which could be en- 
 forced in admiralty. See post, p. 501, n. 2. 
 
 2 The Hull of a New Ship, Daveis, 199 ; Sewall v. The Hull of a New Ship, Ware, 
 2d ed. 565 ; The Kiersage, 2 Curtis, C. C. 421, 423 ; Dudley v. The Steamboat Superior, 
 U. S. D. C, Ohio, 3 Am. Law Reg. 622. In The Young Mechanic, Ware, 2d ed. 
 535, 2 Curtis, C. C. 404, the lien of the material man was preferred to the claim of 
 one who had lent money to the owner for the purpose of building the vessel, and had 
 taken a mortgage from the owner. And this, though the person who employed the 
 libellant was dead, insolvent, and by the laws of the State such a claim was not a 
 preferred debt. See also, The Revenue Cutter No. 1, U. S. D. C, Ohio, 21 Law 
 Reporter, 281. In Reeder v. Steamship George's Creek, U. S. D. C, Maryland, 3 
 Am. Law Reg. 232, the vessel ran between New York and Baltimore. In the summer 
 of 1854 repairs were put upon her in Baltimore. In December, 1853, she was mort- 
 gaged by her owners to parties in New York to secure the payment of $30,000. This 
 mortgage was duly recorded in the office of the collector of customs at the port of 
 New York where the vessel was enrolled, and also in the office of the register of
 
 500 ON THE LAW OF SHIPPING. [bOOK I. 
 
 employed sometimes on the vessel and sometimes elsewhere, 
 has no lien on the vessel for that part of his labor which is per- 
 formed upon it.^ The lien given by the maritime law or by a 
 
 conveyances for the city of New York. On the 17th ^ October, 1854, a decree wag 
 passed by the superior court for the city of New York for the sale of the vessel to pay 
 the mortgage debt. This libel was filed on the 18th of the same month. The court 
 held that the lien of the material man might still be enforced. The principle recog- 
 nized in this case that a vessel may be proceeded against, though in the hands of a 
 bona fide purchaser, is well settled. The Schooner Marion, 1 Story, 68, 72 ; The Barque 
 Chusan, 2 id. 455 ; Cole v. The Atlantic, Crabbe, 440. In the Barque Chusan, Mr. 
 Justice Storij said: "The lien, however, which is given by the maritime law on the 
 ship, although it is, or may be treated as, a permanent or abiding lien upon the ship, 
 until the debt is paid, as between the original owners, and the material men, and their 
 personal representatives, is liable to a very different consideration, when the ship has 
 passed into the hands of a bond fide purchaser, for a valuable consideration, without 
 notice of the lien. In respect to such a purchaser, the lien must be enforced within a 
 reasonable time after the debt is due, and the credit, if any, has expired ; otherwise a 
 court of admiralt)'- will protect him, as a court of equity would do, against the claim 
 as stale and inequitable. What will constitute a I'casonable time, must depend upon 
 the circumstances of each particular case, and is not a point susceptible of any definite 
 or universal formulary of interpretation." It is difficult to reconcile the cases where 
 the question of the loss of the lien by delay has arisen. See Reeder v. Steamship 
 George's Creek, and Cole v. The Atlantic, supra, on one side, and Leland v. The 
 Medora, 2 Woodb. & M. 92, 99; Bryant v. Brig Lillie Mills, U. S. D. C, Mass., 18 
 Law Reporter, 494; The Utilit.y, Blatchf. &. H. Adm. 218; on the oth^ side. If a 
 creditor advances money to the builder on a mortgage of the vessel, he succeeds to the 
 place of the owner, and takes an interest in the vessel subject to the liens of the mate- 
 rial men. The Kearsarge, Ware, 2d ed. 546. 
 
 1 The Calisto, Daveis, 29 ; s. c. Read v. The Hull of a New Brig, 1 Story, 244. 
 The question has been considerably discussed whether sub-contractors, and' day 
 laborers, not employed by the owner, master, or consignee, have a lien for work done, 
 or materials furnished at the request of a person employed by the owner, master, or 
 consignee. In Maine it is held that such a lien exists, in favor of a person performing 
 labor on a vessel. Purinton r. The Hull of a New Ship, Ware, 2d ed. 556, 2 Cur- 
 tis, C. C. 416. But a doubt has been intimated whether a sub-contractor furnishing 
 supplies would have the same right. The Young Sam, 20 Law Reporter, 608, 610, 
 per Curtis, J. In the State courts it has been held that a sub-contractor cannot sue 
 the owner and attach the vessel, but he should sue the person who employed him, and 
 attach the vessel. Ames v. Swctt, 33 Maine, 479 ; Atwood v. Williams, 40 Maine, 409. 
 In Doc V. Monson, 33 Maine, 430, an action against the contractor, and the owner as 
 trustee, was sustained. In Smith v. Steamer Eastern Railroad, 1 Curtis, C. C. 253, it 
 was held that no lien existed in such a case under the Massachusetts statute of 1848. 
 But in a subsequent case before Mr. Justice Sprague, it was held that that decision did 
 not apply to the case of a person furnishing materials to the builder of a ship, he not 
 knowing that the vessel was owned by another party. Hooper v. The Sam Slick, 
 U. S. D.'C, Mass., 18 Law Reporter, 162. In Smith v. Steamer Eastern Railroad, 
 the repairs^wcre made on an old vessel known to be owned by parties other than the 
 contractors. The Act of 1855, ch. 231, has put the matter at rest by^roviding that a
 
 CH. XIV.] MATERIAL MEN AND THEIR LIENS. 501 
 
 State statute may be enforced against the vessel though she is 
 owned by government, in the same way as if a private citizen 
 was the owner.^ 
 
 All persons having a lien on a ship by a State statute, may 
 enforce it in the State courts ; and there have been many decis- 
 ions permitting the enforcement of this lien in the admiralty 
 courts sitting in that district.^ But as the maritime law does not 
 give a lien, for repairs or supplies furnished to a domestic ship, 
 the courts of admiralty can enforce the lien only because the 
 statute gives it ; and in applying the statute and enforcing the 
 lien, they would doubtless be governed by the terms of that 
 
 lien shall exist in all such cases. In the case of Otis v. Brig Whitaker, U. S. D. C, 
 Mass., 18 Law Reporter, 496, which seems to follow Smith v. Steamer Eastern Rail- 
 road, it does not appear whether the services were rendered before or after the passing 
 of the statute, and the vessel was proceeded against as a foreign vessel. But there 
 can be no doubt that in a case under the statute of 1855, under similar circumstances, 
 alien would exist. The lien exists in Ohio, "Webster v. Brig Andes, 18 Ohio, 187. 
 So in Kentucky, unless the owner of the vessel has paid the person who employed the 
 sub-contractors. Stephens v. Ward, 11 B. Mon. 337. But there is no lien in New 
 York, Pennsylvania, or Indiana. Hubbell v. Denison, 20 Wend. 181 ; Harper v. The 
 New Brig, Gilpin, 536 ; Southwick v. Packet Boat Clyde, 6 Blackf. 148. And in 
 Childs V. Steamboat Brunette, 19 Mo. 518, it was held that a ship-carpenter who con- 
 tracts to repair a boat and furnish materials is not an agent within the meaning of the 
 act concerning boats and vessels, and cannot create a lien on the boat in favor of a 
 party from whom he purchased materials. 
 
 1 The Revenue Cutter No. 1, U. S. D. C, Ohio, 21 Law Reporter, 281. In this 
 case, Wilso7i, J., said : " If the property is legally incumbered by mortgage or other 
 liens, the transfer of title does not divest it of those incumbrances. In this respect the 
 government stands upon precisely the same footing as that of individuals. In contro- 
 versies in courts of justice, involving the rights of property, it has no muniments of 
 title sanctified by sovereignty which should exempt it from the rules of law governing 
 individuals in like cases." 
 
 2 Peyroux v. Howard, 7 Pet. 324 ; Weaver v. The S. G. Owens, 1 Wallace, Jr. 
 358 ; Sutton v. The Albatross, 2 id. 327 ; Raymond v. Schooner Ellen Stewart, 5 
 McLean, C. C. 269 ; The Ferax, U. S. D. C, Mass., 12 Law Reporter, 183 ; Phillips 
 V. The Thomas Scattergood, Gilpin, 7 ; Hooper v. The Sam Slick, 18 Law Reporter, 
 162 ; The John Walls, Jr. 12 id. 24. But see ante, p. 498, n. 5. The 12th Admiralty 
 nile of the Supreme Court provides that there shall be a proceeding in rem in cases of 
 domestic ships, where by the local law a lieu is given to material men for supplies, 
 repairs, or other necessaries. The general doctrine, then, that the admiralty has juris- 
 diction where the State law gives a lien, must be taken as subject to this rule, that the 
 party claiming the lien must be a material man, and that the lien must be for " sup- 
 plies, repairs, or other necessaries." It has accordingly been held that although the 
 law of a State gives a lien to a wharfinger, yet as he is not a " material man," he can- 
 not enforce his lien in the admiralty. Russel v. The Asa R. Swift, 1 Newb. Adm. 
 553.
 
 502 ON THE LAW OP SHIPPING. [bOOK I. 
 
 statute, and not by the maritime law generally, wherever those 
 terms were explicit.^ But in construing those terms where 
 doubtful, they would probably be influenced by admiralty prin- 
 ciples, which are those of equity, and would doubtless apply 
 them to a case distinctly before them ; although the case itself 
 might not come within their jurisdiction, except by force of the 
 statute. 
 
 It has been said that if a person furnishing a foreign ship, 
 gives credit, the lien is discharged or does not attach, so that a 
 suit in rem will not lie to enforce it.^ But this is stated too 
 broadly. The lien is not waived unless the contract contains 
 stipulations inconsistent with it.^ 
 
 1 The General Smith, 4 Wheat. 438 ; The Barque Chusan, 2 Story, 455, 462 ; The 
 Ship Eobert Fulton, 1 Paine, C. C. 620, 626; The Calisto, Daveis, 29, 33; The 
 Stephen Allen, Blatchf. & H. Adm. 175, 179; Harper v. The New Brig, Gilpin, 536; 
 Tree v. The Indiana, Crabbe, 476. 
 
 2 Zane v. The Brig President, 4 Wash. C. C. 453. 
 
 3 Peyroux v. Howard, 7 Pet. 324, 344 ; The Brig Nestor, 1 Sumner, 73, 80 ; Phillips 
 V. Wright, 5 Sandf. 342. Thus if the duration of the lien is fixed by law, and credit 
 is given which extends beyond that time, the lien is considered as waived. Peyroux v. 
 Howard, 7 Pet. 324, 344 ; Remnants in Court, Olcott, Adm. 382 ; Veltman v. Thomp- 
 son, 3 Comst. 438. But if the credit may expire before the lien, then, whether it is 
 waived or not, is a question of intention. The Kearsarge, Ware, 2d ed. 546. If credit 
 is given for a definite time, the lien is suspended till that time expires, but may be 
 enforced afterwards. The Brig Nestor, 1 Sumner, 73, 85 ; The John Walls, Jr., 
 U. S. D. C, Mass., 12 Law Reporter, 24. If a party furnishing materials before the 
 vessel is completed or named, charges them to the owner on his books, this is no 
 waiver of the lien, it appearing that he had no intention of relinquishing it. Hooper 
 V. The Sam Slick, U. S. D. C, Mass., 18 Law Reporter, 162. The giving of a note 
 does not, as a general thing, amount to a waiver of the lien, and the claim will be 
 enforced against the ship if the note is surrendered at the trial. The Brig Nestor, 1 
 Sumner, 73, 86 ; The Bark Chusan, 2 Story, 455, 467 ; Leland v. The Ship Mcdora, 2 
 Woodb. & M. 92, 100; Raymond v. The Schooner Ellen Stewart, 5 McLean, C. C. 
 269; Sutton v. The Albatross, 2 Wallace, C. C. 327; The Schooner Active, Olcott, 
 Adm. 286 ; The Steamer Fashion, U. S. D. C, Mich.-; 18 Law Reporter, 50; Merrick 
 ». Avery, 14 Arkan. 370 ; Steamboat Charlotte v. Kingsland, 9 Mo. 66.
 
 APPENDIX.
 
 APPENDIX. 
 
 Two modes of arranging these statutes and statutory provisions have been consid- 
 ered; one, to place them in tlie chronological order of their enactment; the other, to 
 group them by their subjects, so that those which relate to the same matter, may be 
 found together. The latter method has obvious advantages, and has been given up 
 only because it was found to be open to very serious objections. The most important 
 •P these arise from the fact that many provisions of great moment are intercalated in 
 statutes where they have no legitimate place. For example, the enactment against 
 flogging of seamen is contained — not in a separate section — but in a mere proviso, 
 in an appropriation bill ! This prevailing want of an arrangement by subjects in the 
 statutes tliemselves, makes it difficult to arrange them thus in this Appendix. And, 
 upon the whole, it has seemed best to place them clu-onologically, and facilitate a ref- 
 erence to them, partly by a list, and much more by a full index of the matters in the 
 Appendix, which will follow immediately after the Appendix itself. 
 
 ACT OF 1789, CHAPTEK IX. (1 U. S. Stats, at Large, 53). 
 
 An Act concerning Pilots. 
 
 Sec. 4. And be it further enacted, That all pilots in the bays, inlets, 
 rivers, harbors, and ports of the United States, shall continue to be regu- 
 lated in conformity with the existing laws of the States respectively 
 ■wherein such pilots may be, or with such laws as the States may respec- 
 tively hereafter enact for the purpose, until further legislative provision 
 shall be made by congress. 
 
 ACT OF 1790, CHAPTER IX. (I U. S. Stats, at Large, 112). 
 
 An Act for the Punishment of certain crimes against the United States. 
 
 Sec. 8. And be it further enacted., That if any person or persons shall 
 commit upon the high seas, or in any river, haven, basin, or bay, out of the 
 VOL. I. 43
 
 506 APrENDix. 
 
 jurisdiction of any particular State, murder or robbery, or any other offence 
 which if committed within the body of a county, would by the laws of the 
 United States be punishable with death ; or if any captain or mariner of 
 any ship or other vessel, shall piratically and feloniously run away with 
 such ship or vessel, or any goods or merchandise to the value of fifty dol- 
 lars, or yield up such ship or vessel voluntarily to any pirate ; or if any 
 seaman shall lay violent hands upon his commander, thereby to hinder 
 and prevent his fighting in defence of his ship or goods committed to his 
 trust, or shall make a revolt in the ship ; every such offender shall be 
 deemed, taken, and adjudged to be a pirate and felon, and being thereof 
 convicted, shall suffer death ; and the trial of crimes committed on the 
 high seas, or in any place out of the jurisdiction of any particular State, 
 shall be in the district where the offender is apprehended, or into which 
 he may first be brought. 
 
 Sec. 9. And be it further enacted, That if any citizen shall commit any 
 piracy or robbery aforesaid, or any act of hostility against the United 
 States, or any citizen thereof, upon the high sea, under color of any com- 
 mission from any foreign prince, or State, or on pretence of authodfc' 
 from any person, such offender shall, notwithstanding the pretence of any 
 such authority, be deemed, adjudged, and taken to be a pirate, felon, and 
 robber, and on being thereof convicted, shall suffer death. 
 
 Sec. 10. And he it further enacted, That every person who shall, either 
 upon the land or the seas, knowingly and wittingly aid and assist, procure, 
 command, counsel, or advise any person or persons, to do or commit any 
 murder or robbery, or other piracy aforesaid, upon the seas, which shall 
 affect the life of such person, and such person or persons shall thereupon 
 do or commit any such piracy or robbery, then all and every such person 
 so as aforesaid aiding, assisting, procuring, commanding, counselling, or 
 advising the same, either upon the land or the sea, shall be, and they are 
 hereby declared, deemed, and adjudged to be accessary to such piracies 
 before the fact, and every such person being thereof convicted shall suffer 
 death. 
 
 Sec. 11. And be it further enacted, That after any murder, felony, rob- 
 bery, or other piracy whatsoever aforesaid, is or shall be committed by 
 any pirate or robber, every person who knowing that such pirate or rob- 
 ber has done or committed any such piracy or robbery, shall on the land 
 or at sea receive, entertain, or conceal any such pirate or robber, or receive 
 o'r take into his custody any ship, vessel, goods, or chattels, which have 
 been by any such pirate or robber piratically and feloniously taken, shall 
 be, and are hereby declared, deemed, and adjudged to be accessary to such 
 piracy or robbery, after the fact ; and on conviction thereof, shall be im- 
 prisoned not exceeding three years, and fined not exceeding five hundred 
 •dollars.
 
 APPENDIX. 507 
 
 Sec. 12. And be it further enacted, That if any seaman or other person 
 shall commit manslaughter upon the high seas, or confederate, or attempt, 
 or endeavor to corrupt any commander, master, officer, or mariner, to 
 yield up or to run away with any ship or vessel, or with any goods, wares, 
 or merchandise, or to turn pirate, or to go over to or confederate with 
 pirates, or in anywise trade with any pii'ate knowing him to be such, or 
 shall furnish such pirate Avith any ammunition, stores, or provisions of any 
 kind, or shall fit out any vessel knowingly and with a design to trade with 
 or supply or coiTespond with any pirate or robber upon the seas ; or if 
 any person or persons shall any ways consult, combine, confederate, or 
 correspond with any pirate or robber on the seas, knowing him to be 
 guilty of any such .piracy or robbery ; or if any seaman shall confine the 
 master of any ship or other vessel, or endeavor to make a I'evolt in such 
 shipf such person or persons so offending, and being thereof convicted, 
 shall be imprisoned not exceeding three years, and fined not exceeding 
 one thousand dollars. 
 
 Sec. 13. And he it further enacted, That if any person or persons, 
 within any of the places ujion the land under the sole and exclusive juris- 
 diction of tlie United States, or upon the high seas, in any vessel belong- 
 ing to the United States, or to any citizen or citizens thereof, on purpose 
 and of malice aforethought, shall unlawfully cut off the ear or ears, or 
 cut out or disable the tongue, put out an eye, slit the nose, cut off the 
 nose or a lip, or cut off or disable any limb or member of any person, 
 with intention in so doing to maim or disfigure such person in any the 
 manners before mentioned, then and in every such case the person or per- 
 sons so offending, their counsellors, aiders, and abettors (knowing of and 
 privy to the offence aforesaid) shall, on conviction, be imprisoned not ex- 
 ceeding seven years, and fined not exceeding one thousand dollars. 
 
 ACT OF 1790, CHAPTER XXIX. (1 U. S. Stats, at Large, 131). 
 An Act for the Government and Refjulation of Seamen m the Merchant Service. • 
 
 Section 1. Be it enacted by the Senate and House of Representatives 
 of the United States of America in Congress assembled, That from and 
 after the first day of December next, every master or commander of any 
 ship or vessel bound from a port in the United States to any foreign port, 
 or of any ship or vessel of the burden of fifty tons or upwards, bound 
 from a port in one State to a port in any other than an adjoining State, 
 shall, before he proceed on such voyage, it^ake an agreement in writing or 
 in print, with every seaman or mariner on board such ship or vessel (ex- 
 cept such as shall be apprentice or servant to himself or owners) declar-
 
 508 • APPENDIX. 
 
 ing the voyage or voyages, term or terms of time, for which such seaman 
 or mariner shall be shipped. And if any master or commander of such 
 shiji or vessel shall carry out any seaman or mariner (except apprentices 
 or servants as aforesaid) without such contract or agreement being first 
 made and signed by the seamen and mariners, such master or commander 
 shall pay to every such seaman or mariner the highest price or wages 
 which shall have been given at the port or place where such seaman or 
 mariner shall have been shipped, for a similar voyage, within three 
 months next before the time of such shipping : Provided such seaman or 
 mariner shall perform such voyage : or if not, then for such time as he 
 shall continue to do duty on board such ship or vessel ; and shall more- 
 over forfeit twenty dollars for every such seaman or mariner, one half to 
 the use of the person prosecuting for the same, the other half to the use 
 of the United States : and such seaman or mariner, not having signed 
 such contract, shall not be bound by the regulations, nor subject to the 
 penalties and forfeitures, contained in this act. 
 
 Sec. 2. And he it further enacted, That at the foot of every such con- 
 tract, there shall be a memorandum in writing, of the day and the hour 
 on which such seaman or mariner, who shall so ship and subscribe, shall 
 render themselves on board, to begin the voyage agreed upon. And if 
 any such seaman or mariner shall neglect to render himself on board the 
 ship or vessel, for which he has shipped, at the time mentioned in such 
 memorandum, and if the master, commander, or other officer of the ship 
 or vessel, shall, on the day on which such neglect happened, make an 
 entry in the log-book of such ship or vessel, of the name of such seaman 
 or mariner, and shall in like manner note the time that he so neglected to 
 render himself (after the time appointed) ; every such seaman or mariner 
 shall forfeit for every hour which he shall so neglect to render himself, 
 one day's pay, according to the rate of wages agreed upon, to be deducted 
 out of his wages. And if any such seaman or mariner shall wholly neg- 
 lect to render himself on board of such ship or vessel, or having ren- 
 dered himself on board, shall afterwards desert and escape, so that the 
 ship or vessel proceed to sea without him, every such seaman or mariner 
 shall forfeit and pay to the master, owner, or consignee of the said ship 
 or vessel, a sum equal to that which shall have been paid to him by ad- 
 vance at the time of signing the contract, over and besides the sum so ad- 
 vanced, both which sums shall be recoverable in any court, or before any 
 justice or justices of any State, city, town, or county within the United 
 States, which, by the laws thereof, have cognizance of debts of equal 
 value, against such seaman or mariner, or his surety or sureties, in case 
 he shall have given surety to pixjceed the voyage. 
 
 Sec. 3. And he it further enacted, That if the mate or first officer under 
 the master, and a majority of the crew of any ship or vessel, bound on a
 
 APPENDIX. » 509 
 
 voyage to any foreign port, shall, after the voyage is begun (and before 
 the ship or vessel shall have left the land) discover that the said ship or 
 vessel is too leaky, or is otherwise unfit in her crew, body, tackle, apparel, 
 furniture, provisions, or stores, to proceed on the intended voyage, and 
 shall require such unfitness to be inquired into, the master or commander 
 shall, upon the request of tlic said mate (or other ofilcer) and such ma- 
 jority, forthwith proceed to or stop at the nearest or most convenient port 
 or place where such inquiry can be made, and shall there apply to the 
 judge of the district court, if he shall there reside, or if not, to some jus- 
 tice of the peace of the city, town, or place, taking with him two or more 
 of the said crew who shall have made such request ; and thereupon such 
 judge or justice is hereby authorized and required to issue his precept 
 directed to three persons in the neighborhood, the most skilful in maritime 
 affairs that can be procured, requiring them to repair on board such ship 
 or vessel, and to examine the same in respect to the defects and insuffi- 
 ciencies complained of, and to make report to him the said judge or justice, 
 in writing under their hands, or the hands of two of them, whether in any, 
 or in wdiat respect the said ship or vessel is unfit to proceed on the in- 
 tended voyage, and what addition of men, provisions, or stores, or what 
 repairs or alterations in the body, tackle, or apparel will be necessary ; 
 and upon such report the said judge or justice shall adjudge and deter- 
 mine, and shall indorse on the said report his judgment, whether the said 
 ship or vessel is fit to proceed on the intended voyage ; and if not, 
 whether such repairs can be made or deficiencies supplied where the ship 
 or vessel then lays, or whether it be necessary for the said ship or vessel 
 to return to the port from whence she first sailed, to be there refitted ; 
 and the master and crew shall in all things conform to the said judgment ; 
 and the master or commander shall, in the first instance, pay all the costs 
 of such view, report, and judgment, to be taxed and allowed on a fair 
 copy thereof, certified by the said judge or justice. But if the complaint 
 of the said crew shall appear upon the said report and judgment, to have 
 been without foundation, then the said master, or the owner, or consi"-nee 
 of such ship or vessel, shall deduct the amount thereof, and of reasonable 
 damages for the detention (to be ascertained by the said judge or justice) 
 out of the wages growing due to the complaining seamen or mariners. 
 And if, after such judgment, such ship or vessel is fit to proceed on her 
 intended voyage, or after procuring such men, provisions, stores, repairs, 
 or alterations as may be directed, the said seamen or mariners, or either 
 of them, shall refuse to proceed on the voyage, it shall and may be lawful 
 for any justice of the peace to commit by warrant under his hand and 
 seal, every such seaman or mariner (who shall so refuse) to the common 
 gaol of the county, there to remain without bail or main jirize, until he 
 shall have paid double the sum advanced to him at the time of subscrib- 
 
 43*
 
 510 • APPENDIX. 
 
 ing the contract for the voyage, together with such reasonable costs as 
 shall be allowed by the said justice, and inserted in the said warrant, and 
 the surety or sureties of such seaman or mariner (in case he or they shall 
 have given any) shall remain liable for such payment ; nor shall any such 
 seaman or mariner be discharged upon any writ of habeas corpus or 
 otherwise, until such sum be paid by him or them, or his or their surety 
 or sureties, for want of any form of commitment, or other previous pro- 
 ceedings. Provided, That sufficient matter shall be made to appear, upon 
 the return of such habeas corpus, and an examination then to be had, to 
 detain him for the causes hereinbefore assigned. 
 
 Sec. 4. And be it further enacted, That if any person shall harbor or 
 secrete any seaman or mariner belonging to any ship or vessel, knowing 
 them to belong thereto, every such person, on conviction thereof before 
 any court in the city, town or county where he, she, or they may reside, 
 shall forfeit and pay ten dollars for every day which he, she, or they shall 
 continue so to harbor or secrete such seaman or mariner, one half to the 
 use of the person prosecuting for the same, the other half to the use of the 
 United States ; and no sum exceeding one dollar, shall be recoverable 
 from any seaman or mariner by any one person, for any debt contracted 
 during the time such seaman or mariner shall actually belong to any ship 
 or vessel, until the voyage for which such seaman or mariner engaged 
 shall be ended. 
 
 Sec. 5. And he it further enacted, That if any seaman or mariner, who 
 shall have subscribed such contract as is hei'ein before described, shall 
 absent himself from on board the ship or vessel in which he shall so have 
 shipped, without leave of the master or officer commanding on board ; 
 and the mate, or other officer having charge of the log-book, shall make 
 an entry therein of the name of such seaman or mariner, on the day on 
 which he shall so absent himself, and if such seaman or mariner shall 
 return to his duty within forty-eight hours, such seaman or mariner shall 
 forfeit three days pay for every day which he shall so absent himself, to 
 be deducted out of his wages ; but if any seaman or mariner shall absent 
 himself for more than forty-eight hours at one time, he shall forfeit all 
 the wages due to him, and all his goods and chattels which were on board 
 the said ship or vessel, or in any store where they may have been lodged 
 at the time of his desertion, to the use of the owners of the ship or ves- 
 sel, and moreover shall be liable to pay to him or them all damages which 
 he or they may sustain by being obliged to hire other seamen or mariners 
 in his or their place, and such damages shall be recovered with costs, in 
 any court or before any justice or justices having jurisdiction of the 
 recovery of debts to the value of ten dollars or upwards. 
 
 Sec. 6. And he it further enacted, That every seaman or mariner shall 
 be entitled to demand and receive from the master or commander of the
 
 APPENDIX. 511 
 
 ship or vessel to -wliich they belong, one third part of the wages which 
 shall be due to him at every port where such ship or vessel shall unlade 
 and deliver her cargo before the voyage be ended, unless the contrary be 
 expressly stipulated in the contract : and as soon as the voyage is ended, 
 and the cargo or ballast be fully discharged at the last port of delivery, 
 every seaman or mariner shall be entitled to the wages which shall be 
 then due according to his contract ; and if such wages shall not be paid 
 within ten days after such discharge, or if any dispute shall arise between 
 the master and seamen or mariners touching the said wages, it shall be 
 lawful for the judge of the district where the said ship or vessel shall be, 
 or in case his residence be more than three miles from the place, or of 
 his absence from the place of his residence, then, for any judge or justice 
 of the peace, to summon the master of such ship or vessel to appear 
 before him, to show cause why process should not issue against such ship 
 or vessel, her tackle, furniture, and apparel, according to the course of 
 admiralty courts, to answer for the said wages : and if the master shall 
 neglect to appear, or appearing, shall not show that the wages are paid, 
 or otherwise satisfied or forfeited, and if the matter in dispute shall not 
 be forthwith settled, in such case the judge or justice shall certify to the 
 clerk of the court of the district, that there is sufficient cause of com- 
 plaint whereon to found admiralty process, and thereupon the clerk of 
 such court shall issue process against the said ship or vessel, and the suit 
 shall be jiroceeded on in the said court, and final judgment be given 
 according to the course of admiralty courts in such cases used ; and in 
 such suit all the seamen or mariners (having cause of complaint of the 
 like kind against the same ship or vessel) shall be joined as complain- 
 ants ; and it shall be incumbent on the master or commander to produce 
 the contract and log-book, if required, to ascertain any matters in dis- 
 pute ; otherwise the complainants shall be permitted to state the contents 
 thereof, and the proof of the contrary shall lie on the master or com- 
 mander ; but nothing herein contained shall prevent any seaman or mar- 
 iner from havmg or maintaining any action at common law for the recov- 
 eiy of his wages, or from immediate process out of any court having 
 admiralty jurisdiction, wherever any ship or vessel may be found, in case 
 she shall have left the port of delivery where her voyage ended, before 
 payment of the wages, or in case she shall be about to proceed to sea 
 before the end of the ten days next after the delivery of her cargo or 
 ballast. 
 
 Sec. 7. And he it further enacted, That if any seaman or mariner, who 
 shall have signed a contract to perform a voyage, shall, at any port or 
 place, desert, or shall absent himself from such ship or vessel, without 
 leave of the master, or othcer commanding in the absence of the master, 
 it shall be lawful for any justice of peace within the United States (upon
 
 512 APPENDIX. 
 
 the complaint of the master) to issue his warrant to apprehend such de- 
 serter, and bring him before such justice ; and if it shall then appear by- 
 due proof, that he has signed a contract within the intent and meaning 
 of this act, and that the voyage agreed for is not finished, altered, or the 
 contract otherwise dissolved, and that such seaman or mariner has de- 
 serted the ship or vessel, or absented himself without leave, the said 
 justice shall commit him to the house of correction or common jail of the 
 city, town, or place, there to remain until the said ship or vessel shall 
 be ready to proceed on her voyage, or till the master shall require his 
 discharge, and then to be delivered to the said master, he paying all the 
 cost of such commitment, and deducting the same out of the wages due 
 to such seaman or mariner. 
 
 Sec. 8. And be it further enacted, That every ship or vessel belonging 
 to a citizen or citizens of the United States, of the burden of one hun- 
 dred and fifty tons or upwards, navigated by ten or more persons in the 
 whole, and bound on a voyage without the limits of the United States, 
 shall be provided with a chest of medicines, put up by some apothecary 
 of known reputation, and accompanied by directions for administering the 
 same ; and the said medicines shall be examined by the same or some 
 other apothecary, once at least in every year, and supplied with fresh 
 medicines in the place of such as shall have been used or spoiled ; and 
 in default of having such medicine-chest so provided, and kept fit for use, 
 tKe master or commander of such ship or vessel shall provide and pay 
 for all such advice, medicine, or attendance of physicians, as any of the 
 creAV shall stand in need of in case of sickness, at every port or place 
 where the ship or vessel may touch or trade at during the voyage, with- 
 out any deduction from the wages of such sick seaman or mai'iner. 
 
 Sec. 9. And he it further enacted, That every ship or vessel, belonging 
 as aforesaid, bound on a voyage across the Atlantic ocean, shall, at the 
 time of leaving the last port from whence she sails, have on board, well 
 secured under deck, at least sixty gallons of water, one hundred pounds 
 of salted flesh meat, and one hundred pounds of wholesome ship-bread, 
 for every person on board such ship or vessel, over and besides such 
 other provisions, stores, and live-stock as shall by the master or passen- 
 gers be put on board, and in like proportion for shorter or longer 
 voyages ; and in case the crew of any ship or vessel, which shall not have 
 been so provided, shall be put upon short allowance in water, flesh, or 
 bread, during the voyage, the master or owner of such ship or vessel 
 shall pay to each of the crew, one day's wages beyond the wages agreed 
 on, for every day they shall be so put to short allowance, to be recovered 
 in the same manner as their stipulated wages.
 
 APPENDIX. 513 
 
 ACT OF 1792, CHAPTER XXIV. (1 U. S. Stats, at Large, 254). 
 An Act concerning Consuls and Vice-Consuls. # 
 
 For carrying into full effect the convention between tlie King of the 
 French, and the United States of America, entered into for the purpose 
 of defining and establishing the functions and privileges of their respec- 
 tive consuls and vice-consuls ; 
 
 Section 1. Se it enacted hythe Senate and House of Representatives of 
 the United ■ States of America in Congress assembled, That where in the 
 seventh article of the said convention, it is agreed that when there shall 
 be no consul or vice-consul of the King of the French, to attend to the 
 saving of the wreck of any French vessels stranded on the coasts of the 
 United States, or that the residence of the said consul, or vice-consul (he 
 not being at the place of the wreck) shall be more distant from the 
 said place than that of the competent judge of the country, the latter 
 shall immediately proceed to perform the office therein prescribed ; the 
 district judge of the United States of the district in which the wreck 
 shall happen, shall proceed therein, according to the tenor of the said 
 article. And in such cases it shall be the duty of the officers of the cus- 
 toms within whose districts such wrecks shall hajipen, to give notice 
 thei-eof, as soon as may be, to the said judge, and to aid and assist him to 
 perform the duties hereby assigned to him. The district judges of the 
 United States shall also, within their respective districts be the compe- 
 tent judges, for the purposes expressed in the ninth article of the said 
 convention, and it shall be incumbent on them to give aid to the consuls 
 and vice-consuls of the King of the French, in arresting and securing 
 deserters from vessels of the French nation according to the tenor of the 
 said article. 
 
 And where by any article of the said convention, the consuls and vice- 
 consuls of the King of the French, are entitled to the aid of the compe- 
 tent executive officers of the country, in the execution of any precept, 
 the marshals of the United States and their deputies shall, within their 
 respective districts, be the competent officers, and shall give their aid ac- 
 cording to the tenor of the stipulations. 
 
 And Avhenever commitments to the jails of the country shall become 
 necessary in pursuance of any stipulation of the said convention, they 
 shall be to such jails within the respective districts as other commitments 
 under the authority of the United States are by law made. 
 
 And for the direction of the consuls and vice-consuls of the United 
 States in certain cases. 
 
 . Sec. 2. Be it enacted by the authority aforesaid, That they shall have 
 right in the ports or places to which they are or may be severally ap-
 
 514 APPENDIX. 
 
 pointed of receiving the protests or declarations, which such captains, 
 masters, crews, passengers, and merchants, as are citizens of the United 
 States may respectively choose to make there ; and also such as any for- 
 eigner may chod^ to make before them relative to the personal interest 
 of any citizens of the United States ; and the copies of the said acts duly 
 authenticated by the said consuls or vice-consuls, under the seal of their 
 consulates, respectively, shall receive faith in law, equally as tlieir orig- 
 inals would in all courts in the United States. It shall be their duty, 
 where the laAvs of the country permit, to take possession of the personal 
 estate left by any citizen of the United States, other than seamen belong- 
 ing to any ship or vessel who shall die within their consulate ; leaving 
 thex'e no legal representative, partner in trade or trustee by him ap- 
 pointed to take care of his effects, they shall inventory the same with 
 the assistance of two merchants of the United States, or for want of 
 them, of any others at their choice ; shall collect the debts due to the 
 deceased in the country Avhere he died, and pay the debts due from his 
 estate which he shall have there contracted ; shall sell at auction after 
 reasonable public notice, such part of the estate as shall be of a perisha- 
 ble nature, and such further part, if any, as shall be necessary for the 
 payment of his debts, and at the expiration of one year from his decease, 
 the residue ; and the balance of the estate they shall transmit to the 
 treasury of the United States, to be holden in trust for the legal claim- 
 ants. But if at any time before such transmission, the legal representa- 
 tive of the deceased shall appear and demand his effects in their hands, 
 they shall deliver them up, being paid their fees, and shall cease their 
 proceedings. 
 
 For the information of the representative of the deceased, it shall be 
 the duty of the consul or vice-consul authorized to proceed as aforesaid 
 in the settlement of his estate, immediately to notify his death in one of 
 the gazettes published in the consulate, and also to the secretary of 
 state, that the same may be notified in the State to which the deceased 
 shall belong ; and he shall also, as soon as may be, transmit to the secre- 
 tary of state, an inventory of the effects of the deceased, taken as before 
 directed. 
 
 Sec. 3. And he it further enacted, That the said consuls and vico-con- 
 suls, in cases where ships or vessels of the United States shall be stranded 
 on the coasts of their consulates respectively, shall, as far as the laws of 
 the country will permit, take proper measures, as well for the purpose of 
 saving the said ships or vessels, their cargoes and appurtenances, as for 
 storing and securing the effects and merchandise saved, and for taking 
 an inventory or inventories thereof; and the merchandise and effects 
 saved with the inventory or inventories thereof taken as aforesaid, shall,, 
 after deducting therefrom the expense, be delivered to the owner or
 
 APPENDIX. 515 
 
 owners. Provided, That no consul or vice-consul shall have authority to 
 take possession of any such goods, wares, merchandise, or other property, 
 when the master, owner, or consignee thereof is present or capable of 
 taking possession of the same. 
 
 Sec. 4. And he it further enacted, That it shall and may be lawful 
 for every consul and vice-consul of the United States, to take and receive 
 the following fees of office for the services which he shall have per- 
 formed. 
 
 For authenticating under the consular seal, every jDrotest, declaration, 
 deposition, or other act, which such captains, masters, mariners, seamen, 
 passengers, merchants or others as are citizens of the United States may 
 respectively choose to make, the sum of two dollars. 
 
 For the taking into possession, inventorying, selling, and finally set- 
 tling and paying, or transmitting as aforesaid, the balance due on the 
 personal estate left by any citizen of the United States who shall die 
 within the limits of his consulate, five per centum on the gross amount 
 of such estate. 
 
 For taking into possession and otherwise proceeding on any such 
 estate which shall be delivered over to the legal representatives before a 
 final settlement of the same, as is herein before directed, two and an half 
 per centum on such part delivered over as shall not be in money, and 
 five per centum on the gross amount of the residue. 
 
 And it shall be the duty of the consuls and vice-consuls of the United 
 States, to give receipts for all fees which they shall receive by virtue of 
 this act, expressing the particular services for which they are paid. 
 
 Sec. 5. And he it further enacted, That in case it be found necessary 
 for the interest of the United States, that a consul or consuls be ap- 
 pointed to reside on the coast of Barbary, the President be authorized to 
 allow an annual salary, not exceeding two thousand dollars to each per- 
 son so to be appointed : Provided, That such salary be not allowed to 
 more than one consul for any one of the States on the said coast. 
 
 Sec. 6. And he it further enacted, That every consul and vice-consul 
 shall, before they enter on the execution of their trusts, or if already in 
 the execution of the same, within one year from the passing of this act, 
 or if resident in Asia, within two years, give bond with such sureties as 
 shall be approved by the secretary of state, in a sum of not less than 
 two thousand nor more than ten thousand dollars, conditioned for the 
 true and faithful discharge of the duties of his office according to law, 
 and also for truly accounting for all moneys, goods, and effiscts which may 
 come into his possession by virtue of this act : and the said bond shall 
 be lodged in the office of the secretary of the treasury. 
 
 Sections 7 and 8 are repealed. 
 
 Sec. 9. And he it further enacted, That the specification of certain
 
 516 APPENDIX. 
 
 powers and duties, in this act, to be exercised or performed by tlie con- 
 suls and vice-consuls of the United States, shall not be construed to the 
 exclusion of others resulting from the nature of their appointments, or 
 any treaty or convention under which they may act. 
 
 ACT OF 1792, CHAPTER I. (1 U. S. Stats, at Large, 287). 
 An Act conceming the Registerincj and Recording of Ships or Vessels. 
 
 Section 1. J3e if enacted ly the Senate and House of Representatives 
 of the United States of America in Congress assemlled, That ships or ves- 
 sels, which shall have been registered by virtue of the act, entituled " An 
 act for registering and clearing vessels, regulating the coasting trade, and 
 for other j)urposes," and those wdiicli after the last day of March next, 
 shall be registered, pursuant to this act, and no other (except such as shall 
 be duly qualified, according to law, for carrying on the coasting trade and 
 fisheries, or one of them) shall be denominated and deemed ships or ves- 
 sels of the United States, entitled to the benefits and privileges appertain- 
 ing to such ships or vessels : Provided, That they shall not continue to 
 enjoy the same, longer than they shall continue to be wholly owned, and 
 to be commanded by a citizen or citizens of the said States. 
 
 Sec. 2. And he it further enacted, That ships or vessels built within the 
 United States, whether before or after, the fourth of July, one thousand 
 seven hundred and seventy-six, and belonging wholly to a citizen or citi- 
 zens thereof, or not built within the said States, but on the sixteenth day 
 of May, in the year one thousand seven hundred and eighty-nine, belong- 
 ing and thenceforth continuing to belong to a citizen or citizens thereof, 
 and ships or vessels which may hereafter be captured in war, by such 
 citizen or citizens, and lawfully condemned as prize, or which have been, 
 or may be adjudged to be forfeited for a breach of the laws of the United 
 States, being wholly owned by a citizen or citizens thereof, and no other, 
 may be registered as hereinafter directed : Provided, That no such ship 
 or vessel shall be entitled to be so registered, or if registered, to the bene- 
 fits thereof, if owned in whole, or in part, by any citizen in the United 
 States, who usually resides in a foreign country, during the continuance 
 of such residence, unless such citizen be in the capacity of a consul of the 
 United States, or an agent for, and a partner in, some house of trade or 
 copartnership, consisting of citizens of the said States actually carrying 
 on trade within the said States : And provided further, That no ship or 
 vessel, built within the United States, prior to the said sixteenth day of 
 May, which was not then owned wholly, or in part, by a citizen or citi- 
 zens of the United States, shall be capable of being registered, by virtue
 
 APPENDIX. 517 
 
 of any transfer to a citizen or citizens, which may hereafter be made, un- 
 less by way of prize or forfeiture : Provided nevertheless, That this shall 
 not be construed to prevent the registering anew, of any ship or vessel, 
 which was before registered, pursuant to the act before mentioned. 
 
 Sec. 3. And he it further enacted, That every ship or vessel, hereafter 
 to be registered (except as is hereinafter provided) shall be registered by 
 the collector of the district in which shall be comprehended the port to 
 which such ship or vessel shall belong, at the time of her registry, Avhich 
 port shall be deemed to be that, at or nearest to which, the owner, if there 
 be but one, or if inore than one, the husband, or acting and managing 
 owner of such ship or vessel, usually resides. And the name of the said 
 ship or vessel, and of the port to which she shall so belong, shall be 
 painted on her stern, on a black ground, in white letters, of not less than 
 three inches in length. And if any ship or vessel of the United States, 
 shall be found, without having her name, and the name of the port to 
 which she belongs, painted in manner aforesaid, the owner or owners shall 
 forfeit fifty dollars ; one half to the person giving the information thereof, 
 the other half to the use of the United States. 
 
 Sec. 4. And he it further enacted, Tkat, in order to the registry of any 
 ship or vessel, an oath or affirmation shall be taken and subscribed by the 
 owner, or by one of the owners thereof, before the officer authoi-ized to 
 make such registry, who is hereby empowered to administer the same, 
 declaring, according to the best of the knowledge and belief of the person 
 so swearing or affirming, the name of such ship or vessel, her burden, the 
 place Avhere she was built, if built within the United States, and the year 
 in which she was built ; and if built within the United States, before the 
 said sixteenth day of May, one thousand seven hundred and eighty-nine, 
 that she was then owned wholly, or in part, by a citizen or citizens of the 
 United States ; and if not built within the said States, that she was, on the 
 said sixteenth day of May, and ever since, hath continued to be, the entire 
 property of a citizen or citizens of the United States ; or that she was, 
 at some time posterior to the time when the act shall take effect (specify- 
 ing the said time), captured in war by a citizen or citizens of the said 
 States, and lawfully condemned as prize (producing a copy of the sentence 
 of condemnation, authenticated in the usual form) or that she has been 
 adjudged to be forfeited for a breach of the laws of the United States 
 (producing a like copy of the sentence whereby she shall have been ;o 
 adjudged), and declaring his or her name and place of abode, and if he 
 or she be the sole owner of the said ship or vessel that such is the case ; 
 or if there be another OAvner or other owners, that there is or are such 
 other owner or owners, specifying his, her, or their name or names, and 
 place or places of abode, and that he, she, or they, as the case may b(>, so 
 swearing or affirming, is or are citizens of the United States ; and where 
 
 VOL. I. 44
 
 518 APPENDIX. 
 
 an owner resides in a foreign coinitry, in llic capacity of a consul of the 
 United States, or as an agent for, and a partner in, a house or copartner- 
 ship, consisting of citizens of the United States, and actually currying on 
 trade within the United States, that such is the case, and that there is no 
 subject or citizen of any foreign prince or State, directly, or indirectly, by 
 way of trust, confidence, or otherwise, interested in such ship or vessel, 
 or in the profits, or issues thereof; and that the master, or commander 
 thereof is a citizen, naming the said master, or commander, and stating 
 the means whereby, or manner in which, he is so a citizen. And in case, 
 any of the matters of fact, in the said oath or afhrmation alleged, which 
 shall be within the knowledge of the party so swearing or affirming, shall 
 not be true, there shall be a forfeiture of the ship or vessel, together with 
 her tackle, furniture, and apparel, in respect to which, the same shall have 
 been made, or of the value thereof, to be recovered, with costs of suit, of 
 the person, by whom such oath or affirmation shall have been made : 
 Provided always, That if the master, or person having the charge or com- 
 mand of such ship or vessel, shall be within the district aforesaid, when ap- 
 plication shall be made for registering the same, he shall, himself, make 
 oath, or affirmation, instead of tho said owner, touching his being a citizen, 
 and the means whereby, or manner in which, he is so a citizen ; in which 
 case, if what the said master, or person having the said charge or com- 
 mand, shall so swear or affirm, shall not be true, the forfeiture aforesaid 
 shall not be incurred, but he shall, himself, forfeit and pay, by reason 
 thereof, the sum of one thousand dollars: And provided further, That in 
 the case of a ship or vessel, built within the United States prior to the 
 sixteenth day of May aforesaid, Avhich was not then owned by a citizen 
 or citizens of the United States, but which, by virtue of a transfer to such 
 citizen or citizens, sliall have been registered, pursuant to the act before 
 mentioned, the oath or affirmation, hereby required, shall and may be 
 varied, according to the truth of the case, as often as it shall be requisite 
 to grant a new register for such ship or vessel. 
 
 Sec. 5. And he it further enacted. That it shall be the duty of every 
 owner, resident within the United States, of any ship or vessel, to which 
 a certificate of registry may be granted (in case there be more than one 
 such owner), to transmit to the collector, Avho may have granted the same, 
 a like oath or affirmation with that hereinbefore directed to be taken and 
 subscribed by the owner, on whose application such certificate shall have 
 been granted, and within ninety days after the same may have been so 
 granted ; which oath or affirmation may, at the option of the party, be 
 taken and subscribed either before the said collector, or before the col- 
 lector of some other district, or a judge of the supreme, or a district court 
 of the United States, or of a superior court of original jurisdiction of some 
 one of the States. And if such oath or affirmation shall not be taken,
 
 APPENDIX. 519 
 
 subscribed, and transmitted, as is berein required, the certificate of registry, 
 granted to such ship or vessel, shall be forfeit and void. 
 
 Sec. 6. And be it further enacted, That before an}' ship or vessel shall 
 be registered, she shall be measured by a surveyor, if there be one, or by 
 the person he shall appoint, at the port or place where the said ship or 
 vessel may be, and if there be none, by such person as the collector of the 
 district, within which she may be, shall appoint, according to the rule pre- 
 scribed by the forty-third section of the act, intituled " An act to provide 
 more effectually for the collection of the duties imposed by law on goods, 
 wares, and merchandise, imported into the United States, and on the ton- 
 nage of ships or vessels." And the officer, or person, by whom such ad- 
 measurement shall be made, shall, for the information of, and as a voucher 
 to the officer by whom the registry is to be made, grant a certificate, 
 specifying the built of such ship or vessel, her number of decks and 
 masts, her length, breadth, depth, the number of tons she measures, and 
 such other particulars as are usually descriptive of the identity of a ship 
 or vessel ; and that her name, and the place to which she belongs, are 
 painted on her stern, in manner required by the third section of this act : 
 which certificate shall be countersigned by an owner, or by the master of 
 such sliip or vessel, or by some other person who shall attend her ad- 
 measurement, on behalf of her owner or owners, in testimony of the truth 
 of the particulars therein contained ; without which, the said certificate 
 shall not be valid. But in all cases, where a ship or vessel has before 
 been registered, as a ship or vessel of the United States, it shall not be 
 necessary to measure her anew, for the purpose of obtaining another 
 register ; except such ship or vessel shall have undergone some alteration, 
 as to her burden, subsequent to the time of her former registry. 
 
 Sec. 7. And he it further enacted, That, previous to the registry of any 
 ship or vessel, the husband or acting and managing owner, together with 
 the master thereof, and one or more sureties, to the satisfaction of the 
 collector of the district, whose duty it is to make such registry, shall be- 
 come bound to the United States, if such ship or vessel shall be of burden 
 not exceeding fifty tons, in the sura of four hundred dollars ; if of burden 
 above fifty tons, and not exceeding one hundred, in the sum of eight hun- 
 dred dollars ; if of burden above one hundred tons, and not exceeding two 
 hundred, in the sum of twelve hundred dollars ; if of burden above two 
 hundred tons, and not exceeding three hundred, in the sum of sixteen 
 hundred dollars ; aiid if of burden exceeding three hundred tons, in the 
 sum of two thousand dollars ; with condition, in each case, that the cer- 
 tificate of such registry, shall be solely used for the ship or vessel, for 
 which it is granted, and shall not be sold, lent, or otherwise disposed of, 
 to any person or persons whomsoever ; and that, in case such ship or 
 vessel shall be lost, or taken by an enemy, burnt, or broken up, or shall
 
 520 APPENDIX. 
 
 be otherwise prevented from returning to the port to which she may be- 
 long, the said certificate, if preserved, shall be delivered up, within eight 
 days after the arrival of the master, or person, having the charge or com- 
 mand of such ship or vessel, within any district of the United States, to 
 the collector of such district : and that if any foreigner, or any person or 
 persons, for the use and benefit of such foreigner, shall purchase, or other- 
 wise become entitled to the whole, or any part or share of, or interest in, 
 such ship or vessel, the same being within a district of the United States, 
 the said certificate shall, in such case, within seven days after such pur- 
 chase, change, or transfer of property, be delivered up to the collector of 
 the said district.; and that if any such purchase, change, or transfer of 
 property, shall happen, when ^uch ship or vessel shall be at any foreign 
 port or place, or at sea, then the said master, or person having the charge 
 or command thereof, shall, within eight days after his arrival within any 
 district of the United States, deliver up the said certificate to the collector 
 of such district ; and every such certificate, so delivered up, shall be forth- 
 with transmitted to the register of the treasury, to be cancelled, who, if the 
 same shall have been delivered up to a collector, other than of the district 
 in which it was granted, shall cause notice of such delivery to be given to 
 the collector of the said district. 
 
 Sec. 8. And be it further enacted, That in order to the registry of any 
 ship or vessel, which, after the last day of March next, shall be built 
 within the United States, it shall be necessary to produce a certificate, 
 under the hand of the principal or master carpenter, by whom, or under 
 whose direction, the said ship or vessel shall have been built, testifying, 
 that she was built by him, or under his direction, and specifying the place 
 where, the time when, and the person or persons for whom, and describ- 
 ing her built, number of decks and masts, length, breadth, depth, tonnage, 
 and such other circumstances as are usually descriptive of the identity of 
 a ship or vessel ; which certificate shall be sufllicient to authorize the I'e- 
 moval of a new vessel, from the district where she may be built, to an- 
 other district in the same, or an adjoining State, where the owner or 
 owners actually reside, provided it be with ballast only. 
 
 Sec. 9. And he it further enacted, That the several matters hereinbe- 
 fore I'equired, having been complied with, in order to the registering of 
 any ship or vessel, the collector of the district comprehending the port 
 to which she shall belong, shall make, and keep, in some proper book, a 
 record or registry thereof, and shall grant an abstract or certificate 
 of such record or registry, as nearly as may be, in the form following : 
 
 " In pursuance of an Act of the Congress of the United States of 
 America, entituled 'An act concerning the registering and recording of 
 ships or vessels,' [inserting here the name, occupation, and place of abode 
 of the pei'son by whom the oath or affirmation aforesaid, shall have been
 
 APPENDIX. 521 
 
 made,] having taken or subscribed the oath (or affirmation) required by 
 the said act, and having sworn (or affirmed) that he (or she, and if more 
 than one owner, adding tlie words, ' together with,' and the name or 
 names, occupation or occupations, place or places of abode, of the other 
 owner or owners) is (or are) the only owner (or owner?) of the ship or 
 vessel, called the [inserting hei'e her name] of [inserting here the port 
 to which she may belong] whereof [inserting hei*e the name of the mas- 
 ter] is at present master, and is a citizen of the United States, and that 
 the said ship or vessel was [inserting here, when and where built] and 
 [inserting here, the name and office, if any, of the person by whom she 
 shall have been surveyed or admeasured] having certified that the said 
 ship or vessel has [inserting here, the number of decks] and [inserting 
 here, the number of masts] and that her length is [inserting here, the 
 number of feet] her breadth [inserting here, the number of feet] her 
 depth [inserting here, the number of feet] and that she measures [insert- 
 ing here, her number of tons] that she is [describing here, the particular 
 kind of vessel, whether ship, brigantine, snow, schooner, sloop, or what- 
 ever else, together with her built, and specifying whether she has any, or 
 no gallery or head] and the said [naming the owner, or the master, or 
 other person, acting in behalf of the owner or owners, by whom the cer- 
 tificate of admeasurement shall have been countersigned, as aforesaid] 
 having agreed to the description and admeasurement, above specified, and 
 sufficient secui'ity having been given, according to the said act, the said 
 ship or vessel has been duly registered at the port of [naming the port 
 where registered]. Given under my hand and seal, at .[naming the said 
 port] this [inserting the particular day] day of [naming the month] in 
 the year [specifying the number of the year, in words at length ; "] Pro- 
 vided, That if the master, or person having the charge or command of 
 such ship or vessel, shall, himself, have made oath or affirmation touch- 
 ing his being a citizen, the wording of the said certificate shall be varied 
 so as to be conformable to the truth of the case : And provided, That 
 where a new certificate of registry is granted, in consequence of any 
 transfer of a ship or vessel, the words shall be so varied, as to refer to 
 the former certificate of registry, for her admeasurement. 
 
 Sec. 10. And he it further enacted. That it shall be the duty of the 
 secretary of the treasury, to cause to be prepared, and transmitted, from 
 time to time, to the collectors of the several districts, a sufficient number 
 of forms of the said certificates of registiy, attested under the seal of the 
 treasury, and the hand of the register thereof, with proper blanks, to be 
 filled by the said collectors, respectively, by whom also, the said certifi- 
 cate shall be signed and sealed, before they shall be issued ; and where 
 there is a naval officer at any port, they shall be countersigned hj him ; 
 and where there is a surveyoi', but no naval officer, they shall be counter- 
 
 44*
 
 522 ArpENDix. 
 
 signed by liim ; and a copy of each, shall be transmitted to the said 
 register, who shall cause a record to be kept of the same. 
 
 Sec. 11. And be it further enacted, That where any citizen or citizens 
 of the United States, shall purchase, or become owner or owners of any 
 ship or vessel, entitled to be registered, by virtue of this act, such ship or 
 vessel, being within any district, other than the one, in which he or they 
 usually reside, such ship or vessel shall be entitled to be registered by the 
 collector of the district, where such ship or vessel may be, at the time of 
 his or their becoming owner or owners thereof, upon his or their comply- 
 ing with the provisions hereinbefore prescribed, in order to the registry 
 of ships or vessels : and the oath or affirmation which is requii'ed to be 
 taken, may, at the option of such owner or owners, be taken, either be- 
 fore the collector of the district, comprehending the port to which such 
 ship or vessel may belong, or before the collector of the district, within 
 which, such ship or vessel may be, either of whom, is hereby empowered 
 to administer the same : Provided nevertheless. That whenever such ship 
 or vessel shall ari'ive within the district comprehending the port to which 
 such ship or vessel shall belong, the certificate of registry, which shall 
 have been obtained, as aforesaid, shall be delivered up to the collector of 
 such district, who, upon the requisites of this act, in order to the registry 
 of ships or vessels, being complied with, shall gi'ant a new one, in lieu of 
 the first ; and the certificate, so delivered up, shall forthwith be returned 
 by the collector who shall receive the same, to the collector who shall 
 have granted it : and if the said first mentioned certificate of registry, 
 shall not be delivered up, as above directed, the owner or owners, and the 
 master of such ship or vessel, at the time of her said ai'rival within the 
 district comprehending the port to which such ship or vessel may belong, 
 shall, severally, forfeit the sum of one hundred dollars, to be recovered, 
 with costs of suit ; and the said certificate of registry shall be thenceforth 
 void. And in case, any of the matters of fact, in the said oath or affir- 
 mation alleged, which shall be within the knowledge of the party, so 
 swearing or affirming, shall not be true, there shall be a forfeiture of the 
 ship or vessel, together with her tackle, furniture, and appai'el, in respect 
 to which, the same shall have been made, or of the value thereof, to be 
 recovered, wdth costs of suit, of the person by whom such oath or affir- 
 mation shall have been made : Provided always, That if the master, or 
 person having the charge or command of such ship or vessel, shall be 
 within the district aforesaid, when application shall be made for register- 
 ing the same, he shall, himself, make oath or affirmation, instead of the 
 said owner, touching his being a citizen, and the means whereby, or man- 
 ner in which, he is so a citizen ; in which case, if what the said master, 
 or person having the said charge or command, shall so swear or affirm, 
 shall not be true, the forfeiture aforesaid shall not be incurred, but he
 
 APPENDIX. 523 
 
 shall, himself, forfeit and pay, by reason thereof, the sum of one thousand 
 dollars. 
 
 Sec. 12. And be it further enacted, That when any ship or vessel, enti- 
 tled to be registered, pursuant to this act, shall be purchased by an agent 
 or attorney for, or on account of a citizen or citizens of the United States, 
 such ship or vessel, being in a district of the United States, more than 
 fifty miles distant, taking the nearest usual route by land, from the one 
 comprehending the port to which, by virtue of such purchase, and by 
 force of this act, such ship or vessel ought to be deemed to belong, it shall 
 be lawful for the collector of the district, where such ship or vessel may 
 be, and he is hereby required, upon the application of such agent or 
 attorney, to proceed to the registering of the said ship or vessel, the said 
 agent or attorney, first complying, on behalf, and in the stead of, the 
 owner or owners thereof, with the requisites prescribed by this act, in 
 order to the registry of ships or vessels, except, that in the oath or aiFir- 
 mation, which shall be taken by the said agent or attorney, instead of 
 swearing or affirming that he is owner, or an owner of such ship or ves- 
 sel, he shall swear or affirm, that he is agent or attorney for the owner or 
 owners thereof, and that he hath bond fide purchased the said ship or 
 vessel, for the person or persons, whom he shall name and describe as the 
 owner or owners thereof: Provided nevertheless, That whenever such ship 
 or vessel shall arrive within the district comprehending the port to which 
 such ship or vessel shall belong, the certificate of registry, which shall 
 have been obtained, as aforesaid, shall be delivered up to the collector of 
 such district, who, upon the requisites of this act, in order to the registry 
 of ships or vessels, being complied with, shall grant a new one, in lieu of 
 the first ; and the certificate, so delivered up, shall forthwith be returned 
 by the collector, who shall transmit the same to the collector who shall 
 have granted it. And if the said first mentioned certificate of registry, 
 shall not be delivered up, as above directed, the owner or owners, and the 
 master of such ship or vessel, at the time of her said arrival within the 
 district comprehending the port to which she may belong, shall, severally, 
 forfeit the sum of one hundred dollars, to be recovered, with costs of suit, 
 and the said certificate of registry shall be thenceforth void. And in 
 case any of the mattei's of fact, in the said oath* or affirmation alleged, 
 which shall be within the knowledge of the party so swearing or affirm- 
 ing, shall not be true, there shall be a forfeiture of the ship or vessel, to- 
 gether with her tackle, furniture and apparel, in respect to Avhich, the 
 same shall have been made, or of the value thereof, to be recovered, with 
 costs of suit, of the person by whom such oath or affirmation shall have 
 been made : Provided always, That if tlie master, or person having the 
 charge or command of such ship or vessel, shall be within the district 
 aforesaid, when application shall be made for registering tlic same, he
 
 524 APPENDIX. 
 
 shall, himself, make oath or affirmation, instead of the said agent or attor- 
 ney, touching his being a citizen, and the means whereby, or manner 
 in v.'hich, he is so a citizen ; in which case, if what the said master, 
 or person having the said charge or command, shall so swear or affirm, 
 shall not be true, the forfeiture aforesaid shall not be incurred, but he 
 shall, himself, forfeit and pay, by reason thereof, the sura of one thousand 
 dollars. 
 
 Sec. 13. And be it further enacted, That if the certificate of the regis- 
 try of any ship or vessel shall be lost or destroyed, or mislaid, the master, 
 or other person having the charge or command thereof, may make oath or 
 affirmation, before the collector of the district where such ship or vessel 
 shall first be, after such loss, destruction, or mislaying, who is hereby au- 
 thorized to administer the same, which oath or affirmation shall be of the 
 form following : " I (inserting here the name of the person swearing or 
 affirming) being master (or having the charge or command) of the ship 
 or vessel, called the (inserting the name of the vessel) do swear (or 
 affirm) that the said ship or vessel, hath been, as I verily believe, regis- 
 tered, according to law, by the name of (inserting again the name of the 
 vessel) and that a certificate thereof was granted by the collector of the 
 district of (naming the district, where registered) which certificate has 
 been lost (or destroyed, or miintentionally and by mere accident mislaid, 
 as the case may be), and (except, where the certificate is alleged to have 
 been destroyed) that the same, if found again, and within my power, 
 shall be delivered up to the collector of the district, in which it was 
 granted ; " which oath, or affirmation, shall be subscribed by the party 
 making the same, and ujDon such oath or affirmation being made, and the 
 other requisites of this act, in order to the registry of ships, or vessels, 
 being complied with, it shall be lawful for the collector of the disti'ict, be- 
 fore whom such oath or affirmation is made, to grant a new register, 
 inserting therein, that the same is issued, in the room of the one lost or 
 destroyed. But in all cases, where a register shall be granted, in lieu of 
 the one lost or destroyed, by any other than the collector of the district, 
 to which the ship, or vessel actually belongs, such register shall, within 
 ten days after her first arrival within the district to which she belongs, be 
 delivered up to the collector of the said district, who shall, thereupon, 
 grant a new i-egister, in lieu thereof. And in case the master, or com- 
 mander shall neglect to deliver up such register wnthin the time aforesaid, 
 he shall forfeit one hundred dollars ; and the former register shall become 
 null and void. 
 
 Sec. 14. And he it farther enacted, That when any ship or vessel, 
 which shall have been registered, pursuant to this act, or the act hereby, 
 in part, repealed, shall, in whole, or in part, be sold, or transferred to a 
 citizen or citizens of the United States, or shall be altered in form or
 
 APPENDIX. 525 
 
 burden, by being lengthened, or built upon, or from one denominntion 
 to another, by the mode or method of rigging or fitting, in every such 
 case, the said ship or vessel shall be registered anew, by her former 
 name, according to the directions herein before contained (otherwise 
 she shall cease to be deemed a ship or vessel of the United States), and 
 her former certificate of registry shall be delivered up to the collector to 
 whom application for such new registry shall be made, at the time, that 
 the same shall be made to be by him transmitted to the register of the 
 treasury, who shall cause the same to be cancelled. And in every such 
 case of sale or transfer, there shall be some instrument of writing, in the 
 nature of a bill of sale, Avhich shall recite at length the said certificate, 
 otherwise the said ship or vessel shall be incapable of being so regis- 
 tered anew. And in every case in which a ship or vessel is hereby re- 
 quired to be registered anew, if she shall not be so registered anew, she 
 shall not be entitled to any of the privileges or benefits of a ship or ves- 
 sel of the United States. And further, if her said former certificate of 
 registry shall not be delivered up as aforesaid, except where the same 
 may have been destroyed, lost, or unintentionally mislaid, and an oath or 
 affirmation thereof shall have been made, as aforesaid, the owner or 
 owners of such ship or vessel shall forfeit and pay the sum of five hun- 
 dred dollars, to be recovered with costs of suit. 
 
 Sec. 15. And be it further enacted, That when the master, or person 
 having the charge or command of a ship or vessel, registered pursuant 
 to this act, or the act hereby in part repealed, shall be changed, the 
 owner, or one of the owners, or the new master of such ship or vessel, 
 shall report such change to the collector of the district where the same 
 shall happen, or where the said ship or vessel shall first be, after the 
 same shall have happened, and shall produce to him the certificate of 
 registry of such ship or vessel, and shall make oath or affirmation, show- 
 ing that such new master is a citizen of the United States, and the man- 
 ner in which, or means whereby, he is so a citizen ; whereupon the said 
 collector shall indorse upon the said certificate of registry, a memoran- 
 dum of such change, specifying the name of such new master, and shall 
 subscribe the said memorandum with his name, and if other than the col- 
 lector of the district, by whom the said certificate of registry shall have 
 been granted, shall transmit a copy of the said memorandum to him, 
 with notice of the particular ship or vessel, to which it shall relate ; and 
 the collector of the district, by whom the said certificate shall have been 
 granted, shall make a like memorandum of such change, in his book of 
 registers, and shall transmit a copy thereof, to the register of the treas- 
 ury. And if the said change shall not be reported, or if the said oath 
 or affirmation shall not be taken, as above directed, the registry of such 
 ship or vessel shall be void, and > the said master, or person, having the
 
 526 APPENDIX. 
 
 charge or command of lior shall forfeit and pay the sum of one hundred 
 dollars. 
 
 Sec. 16. A7id be it further enacted. That if any ship or vessel, hereto- 
 fore registered, or which shall hereafter be registered, as a shij) or vessel 
 of the United States, shall be sold or transferred, in whole or in part by 
 way of trust, confidence or otherwise, to a subject or citizen of any 
 foreign prince or State, and such sale or transfer shall not be made 
 known, iu manner herein before directed, such ship or vessel, together 
 with her tackle, apparel, and furniture shall be forfeited. Provided, 
 That if such ship or vessel shall be owned in part only, and it shall be 
 made to appear to the jury, before whom the ti'ial for such forfeiture 
 shall be had, that any other owner of such ship or vessel, being a citizen 
 of the United States, was wholly ignorant of the sale or transfer to, or 
 ownership of, such foreign subject or citizen, the share or interest of such 
 citizen of the United States shall not be subject to such forfeiture ; and 
 the residue only shall be so forfeited. 
 
 Sec. 17. Ayid be it further enacted, That upon the entry of every ship 
 or vessel of the United States, from any foreign port or place, if the same 
 shall be at the port or place, at which the owner, or any of the part- 
 owners reside, such owner or part-owner shall make oath or affirmation, 
 that the i-egister of such ship or vessel contains the name or names of all 
 the persons, who are then owners of the said ship or vessel ; or if any 
 part of such ship or vessel has been sold or transferred, since the grant- 
 ing of such register, that such is the case, and that no foreign subject or 
 citizen hath, to the best of his knowledge and belief, any share, by the 
 way of trust, confidence, or otherwise,.in such ship or vessel. And if the 
 owner, or any part-owner, shall not reside at the port or place, at which 
 such ship or vessel shall enter, then the master or commander shall make 
 oath or affirmation, to the like effisct. And if the owner, or part-owner, 
 where there is one, or the master or commander, where there is no 
 owner, shall refuse to swear or affirm as aforesaid, such ship or vessel 
 shall not be entitled to the privileges of a ship or vessel of the United 
 States. 
 
 Sec. 18. And be it further enacted, That iu all cases, where the mas- 
 ter, commander, or owner of a ship or vessel, shall deliver up the regis- 
 ter of such ship or vessel, agreeable to the j^rovisions of this act, if to 
 the collector of the district, where the same shall have been granted, the 
 said collector shall, thereupon, cancel the bond, Avhich shall have been 
 given at the time of granting such register ; or, if to the collectoi" of any 
 other district, such collector shall grant to the said master, commander, 
 or owner, a receipt or acknowledgment, that such register has been de- 
 livered to him, and the time, when ; and upon such receipt being pro- 
 duced to the collector, by whom the register was granted, he shall
 
 APPENDIX. ' t>27 
 
 cancel the bond of the party, as if the register .bad been returned to 
 him. 
 
 Sec. 19. And be it further enacted, That the collector of each district 
 shall i:)rogressively number the certificates of the registry by him granted, 
 beginning anew, at the commencement of each year, and shall enter an 
 exact copy of each certificate, in a book to be kept for that purpose ; and 
 shall, once in three months, transmit to the register of the treasury, 
 copies of all the certificates, which shall have been granted by him, 
 including the number of each. 
 
 Sec. 20. And be it further enacted, That every ship or vessel, built in 
 the United States, after the fifteenth day of August, one thousand seven 
 hundred and eighty-nine, and belonging wholly, or in part, to the subjects 
 of foreign powers, in order to be entitled to the benefits of a ship, built 
 and recorded in the United States, shall be recorded in the office of the 
 collector of the district, in which such ship or vessel was built, in manner 
 following, that is to say : The builder of every such ship or vessel shall 
 make oath or affirmation, before the collector of such district, who is 
 hereby authorized to administer the same, in manner following : " I (in- 
 serting here the name of such builder) of (inserting here the place of his 
 residence) shipwright, do swear (or affirm) that (describing here the kind 
 of vessel, and Avhether ship, brig, snow, schooner, sloop, or whatever else) 
 named (inserting here the name of the ship or vessel) having (inserting 
 here the 'number of decks) and being, in length (inserting here the 
 number of feet) in breadth (inserting here the number of feet) in depth 
 (inserting here the number of feet) and measuring (inserting here the 
 number of tons) having (specifying, whether any or no) gallery, and 
 (also specifying, whether any or no) head, vras built by me, or under my 
 direction, at (naming the place, county, and State) in the United States, 
 in the year (inserting here the number of the year ; ") which oath or 
 affirmation shall be subscribed by the person making the same, and 
 shall be recorded in a book, to be kept, by the said collector, for that 
 purpose. 
 
 Sec. 21. And be it further enacted, That the said collector shall cause 
 the said ship or vessel to be surveyed or admeasured, according to the 
 rule, presci'ibed by the forty-third section of the act, intituled " An act 
 to provide more effectually for the collection of the duties imposed by 
 lavv- on goods, wares, and merchandise, imported into the United States, 
 and on the tonnage of ships or vessels ; " and the person, by whom such 
 admeasurement shall be made, shall grant a certificate thereof, as in the 
 case of a ship or vessel to be registered ; which certificate shall be coun- 
 tersigned by the said builder, and by an owner, or the master, or person 
 having the command or charge thereof, or by some other person, being
 
 528 APPENDIX. 
 
 an agent for the owner or owners thereof, in testhnony of the truth of the 
 particulars therein contained. 
 
 Sec. 22. And be it further enacted, That a certificate of the said 
 record, attested under the hand and seal of the said collector, shall be 
 granted to the master of every such ship or vessel, as nearly as may be, 
 of the form following: "In pursuance of an act, intituled * An act con- 
 cerning the registering and recording of ships or vessels,' I (inserting 
 here the name of the collector of the district) of (inserting here the 
 name of the district) in the United States, do certify, that (inserting here 
 the name of the builder) of (inserting here the place of his residence, 
 county, and State) having sworn, or affirmed, that the (describing the 
 ship or vessel, as in the certificate of record) named (inserting here her 
 name) whereof (inserting here the name of the master) is, at present, 
 master, was built at (inserting here the name of the place, count}', and 
 State, where built) by him, or under his direction, in the year (inserting 
 here the number of the year) and (inserting here the name of the sur- 
 veyor, or other person, by whom the same admeasurement shall have 
 been made) having certified, that the said ship or vessel has (inserting 
 here her number of decks) is, in length (inserting here the number of 
 feet) in breadth (inserting here the number of feet) in depth (inserting 
 here the number of feet) and measures (inserting here the number of 
 tons) : And the said builder and (naming and describing the owner, or 
 master, or agent for the owner or owners, as the case may be, by whom 
 the said certificate shall have been countersigned) having agreed to the 
 said description and admeasurement, the said ship or vessel has been 
 recorded, in the district of (inserting here the name of the district, where 
 recorded) in the United States : Witness my hand and seal, this (insert- 
 ing here the day of the month) day of (inserting here the name of the 
 month) in the year (inserting here the number of the year) ; " which 
 certificate shall be recorded in the office of the said collector, and a 
 duplicate thereof transmitted to the register of the treasury of the United 
 States, to be recorded in his office. 
 
 Sec. 23. Aiid be it further enacted, That if the master, or the name, 
 of any ship or vessel so recoi'ded, shall be changed, the o^vner, part- 
 owner, or consignee of such ship or vessel, shall cause a memorandum 
 thereof to be indorsed on the certificate of the record, by the collector 
 of the district, where such ship or vessel may be, or at which she shall 
 first arrive, if such change took place in a foreign country ; and a copy 
 thereof shall be entered in the book of records, a transcript whereof 
 shall be transmitted, by the said collector, to the collector of the district, 
 where such certificate was granted (if not the same person), who shall 
 enter the same in his book of records, and forward a duplicate of such
 
 APPENDIX. 529 
 
 entry, to the register of the treasury of the United States ; and in such 
 case, until the said owner, part-owner, or consignee, shall cause the said 
 memorandum to be made, by the collector, in manner aforesaid, such 
 ship or vessel shall not be deemed, or considered, as a vessel recorded, in 
 pursuance of this act. 
 
 Sec. 24. And be it further enacted, That the master, or other person 
 having the command or charge of any ship or vessel, recorded in pursu- 
 ance of this act, shall, on entry of such ship or vessel, produce the cer- 
 tificate of such record, to the collector of the district, where she shall be 
 so entered ; in failure of which, the said ship or vessel shall not be enti- 
 tled to the privileges of a vessel, recoi'ded as aforesaid : Provided ahvays, 
 and he it further enacted, That nothing herein contained shall be con- 
 strued to make it necessary to record, a second time, any ship or vessel, 
 M'hich shall have been recorded, pursuant to the act, hereby in part re- 
 pealed : but such recording shall be of the like force and effect, as if 
 made pursuant to this act. 
 
 Sec. 25. And he it further enacted, That the fees and allowances, for 
 the several services to be performed, pursuant to this act, and the distri- 
 bution of the same, shall be as follews,- to wit : For the admeasurement 
 of every ship or vessel, of one hundred tons, and under, one cent per 
 ton ; for the admeasurement of every ship or vessel, above one hundred, 
 and not exceeding two hundred tons, one hundred and fifty cents ; for 
 the admeafurement of every ship or vessel, above two hundred tons, two 
 hundred cents ; for every certificate of registry or record, two hundred 
 cents ; for every indorsement upon a certificate of registry or record, one 
 hundred cents ; and for taking every bond required by this act, twenty- 
 five cents. The whole amount of which fees shall be received, and 
 accounted for, by Ihe collector, oi', at his option, by the naval officer, 
 where there is one ; and where there is a collector, naval officer, and sur- 
 veyor, shall be equally divided, monthly, between the said officers ; and 
 where there is no naval officer, two thirds to the collector, and the other 
 third to the surveyor ; and where there is only a collector, he shall re- 
 ceive the whole amount thereof; and where there is more than one sur- 
 veyor in any district, each of them shall receive his proportionable part 
 of such fees, as shall arise in the port, for which he is appointed : Pro- 
 vided ahvays, that in all cases where the tonnage of any ship or vessel 
 shall be ascertained, by any person appointed for that purpose, such per- 
 son shall be paid a reasonable compensation therefor, out of the fees 
 aforesaid, before any distribution thereof, as aforesaid. And every col- 
 lector, and naval officer, and every surveyor, who shall reside at a port 
 where there is no collector, shall cause to be affixed, and constantly kept, 
 in some conspicuous part of his office, a flxir table of the rates of fees, 
 demandable by this act. 
 
 VOL. I. 45
 
 530 APPENDIX. 
 
 Sec. 26. A7id he it further enacted, That every collectoi', or officer, 
 Avlio shall knowingly make, or be concerned in making any false register 
 or record, or shall knowingly grant, or be concerned in granting, any 
 false certificate of registry or record of, or for any ship or vessel, or other 
 false document whatsoever, touching the same, contrary to the true intent 
 and meaning of this act, or who shall designedly take any other, or 
 greater fees, than are by this act allowed, or who shall receive any vol- 
 untary rewax'd or gratuity, for any of the services performed, pursuant 
 thereto ; and every surveyor, or other person appointed to measure any 
 ship or vessel, who shall wilfully deliver to any collector, or naval officer, 
 a false description of such ship or vessel, to be registered or recorded, 
 shall, upon conviction of any such neglect, or offence, forfeit the sum of 
 one thousand dollars, and be rendered incapable of serving in any office 
 of trust or profit, under the United States ; and if any person or persons, 
 authorized and requii'ed by this act, in respect to his or their office or 
 offices, to perform any act or thing, required to be done or pei'formed, 
 pursuant to any of the provisions of this act, shall wilfully neglect to do 
 or perform the same, according to the true intent and meaning of this act, 
 such person or persons shall, on beipg duly convicted thereof, if not sub- 
 ject to the penalty and disqualification aforesaid, forfeit the sum of five 
 hundred dollars for the first offence, and a like sum for the second 
 offence, and shall, thenceforth, be rendered incapable of holding any 
 office of trust or profit under the United States. 
 
 Sec. 27. And he it further enacted. That if any certificate of registry, 
 or record, shall be fraudulently or knowingly used for any ship or vessel, 
 not then actually entitled to the benefit thereof, according to the true 
 intent of this act, such ship or vessel shall be forfeited to the United 
 States, with her tackle, apparel, and furniture. 
 
 Sec. 28. And he it further enacted, That if any person or persons shall 
 falsely make oath or affirmation, to any of the matters, herein required to 
 be verified, such person or persons shall suffer the like pains and penal- 
 ties, as shall be incurred by persons committing wilful and corrupt per- 
 jury ; and that if any person or persons shall forge, counterfeit, erase, 
 alter, or falsify any certificate, register, record, or other document, men- 
 tioned, described, or authorized, in and by this act, such person, or 
 persons, shall, for every such offence, forfeit the sum of five hundred 
 dollars. 
 
 Sec. 29. And he it further enacted, That all the penalties and foi-feit- 
 ures, which may be incurred, for offences against this act, shall and may 
 be sued for, prosecuted, and recovered, in such courts, and be disposed of 
 in such manner, as any penalties and forfeitures which may be incurred 
 for offences against the act, intituled " An act to provide more effectually 
 for the collection of the duties imposed by law on goods, wares, and
 
 APPENDIX. J, 531 
 
 merchandise, imported into the United State?, and on the tonnage of ships 
 or Tessels," may be legally sued for, prosecuted, recovered, and disposed 
 of: Provided alivays, That if any officer entitled to a part or share of any 
 such penalty or forfeiture, shall be necessary as a witness, on the trial for 
 such ^lenalty or forfeiture, such officer may be a witness upon the said 
 trial ; but in such a case, he shall not receive, nor be entitled to any part 
 or share of the said penalty or forfeiture ; and the part or share, to 
 which he would otherwise have been entitled, shall accrue to the United 
 States. 
 
 Sec. 30. And he it further enacted, That from and after the last day 
 of March next, this act shall be in full force and effect ; and so tfiuch of 
 the act, intituled "An act for registering and clearing vessels, regulating 
 the coasting-trade, and for other purposes," as comes within the purview 
 of this act, shall, after the said last day of March, be repealed. 
 
 ACT OF 1793, CHAPTER VIII. (1 U. S. Stats, at Large, 305). 
 
 An Act for enrolling and licensing Ships or Vessels to be employed in the Coasting Trade 
 and Fisheries, and for regulating the same. 
 
 Section 1. Be it enacted hy the Senate and House of Representatives 
 of the United States of America in Congress assembled, That ships or ves- 
 sels, enrolled by virtue of " An act for registering and clearing vessels, 
 regulating the coasting trade, and for other purposes," and those of twenty 
 tons and upwards, which shall be enrolled after the last day of May next, 
 in pursuance of this act, and having a license in force, or if less than 
 twenty tons, not being enrolled, shall have a license in force, as is herein- 
 after required, and no others, shall be deemed ships or vessels of the 
 United States, entitled to the privileges of ships or vessels employed in 
 the coasting trade or fisheries. 
 
 Sec. 2. And he it further enacted, That from and after the last day of 
 May next, in order for the enrolment of any ship or vessel, she shall 
 possess the same qualifications, and the same requisites, in all respects, 
 shall be complied with, as are made necessary for registering ships or 
 vessels, by the act, intituled "An act concerning the registering and 
 recording of ships or vessels," and the same duties and authorities are 
 hereby given and imposed on all officers, respectively, in relation to such 
 enrolments, and the same proceedings shall be had, in similar cases, 
 touching such enrolments ; and the ships or vessels so enrolled, witli the 
 master, or owner or owners thereof, shall be subject to the same requisites, 
 as are in those respects pi'ovided for vessels registered by virtue of the 
 aforesaid act ; the record of which enrolment shall be made, and an ab-
 
 532 APPENDIX. 
 
 stract or copy thereof granted, us nearly as may be, in the form following: 
 " Enrolment in conformity to an act of the Congress of the United States 
 of America, intituled ' An act for enrolling and licensing ships or vessels, 
 to be employed in the coasting trade and fisheries, and for regulating the 
 same,' [inserting here, the name of the person, with his occupation and 
 place of abode, by whom the oath or affirmation is to be made] having 
 taken and subscribed the oath (or affirmation) required by this act, and 
 having sworn (or affirmed) that he (or she, and if more than one owner, 
 adding the words ' together with,' and the name or names, occupation or 
 occupations, place or places of abode, of the owner or owners) is (or are) 
 a citiziin (or citizens) of the United States, and sole owner (or owners) 
 of the ship or vessel, called the [inserting here her name] of [inserting 
 here the name of the port to which she may belong] whereof [inserting 
 here the name of the master] is at present master, and is a citizen of the 
 United States, and that the said ship or vessel was [inserting here when 
 and where built] and [inserting here the name and office, if any, of the 
 person by whom she shall have been surveyed, or admeasured] having 
 certified, that the said ship or vessel has [inserting here the number of 
 decks] and [inserting here the number of masts] and that her length is 
 [inserting here the number of feet] her breadth [inserting here the num- 
 ber of feet] her depth [inserting here the number of feet] and that she 
 measures [inserting here her number of tons] that she is [describing 
 here the particular kind of vessel, whether ship, brigantine, snow, 
 schooner, sloop, or whatever else, together with her built, and specifying, 
 whether she has any or no gallery or head] and the said [naming the 
 owner, or the master, or other person acting in behalf of the owner or. 
 owners, by whom the certificate of admeasurement shall have been coun- 
 tersigned] having agreed to the description and admeasurement above 
 specified, and sutficient security having been given, according to the said 
 act, the said ship or vessel has been duly enrolled, at the port of [naming 
 the port where enrolled]. Given under my hand and seal, at [naming 
 the said port], this [inserting the particular day] of [naming the month] 
 in the year [specifying the number of the year, in woi'ds at length]." 
 
 Sec. 3. And be it further enacted, That it shall and may be lawful for 
 the collectors of the several districts, to enroll and license any ship or ves- 
 sel, that may be registered, upon such registry being given up, or to 
 register any ship or vessel, that may be enrolled, upon such enrolment 
 and license being given up. And when any ship or vessel shall be in 
 any other district than the one to wdiich she belongs, the collector of such 
 district, on the application of the master or commander thereof, and upon 
 his taking an oath or affirmation, that according to his best knowledge and 
 belief, the property remains, as expressed in the register or enrolment 
 proposed to be given up, and upon his giving the bonds required for grant-
 
 APPENDIX. 533 
 
 ing registers, shall make the exchanges aforesaid ; but in every such case, 
 the collector, to whom the register, or enrolment and license may be given 
 up, shall transmit the same to the register of the treasury ; and the 
 register, or enrolment and license, granted in lieu thereof, shall, within 
 ten days after the arrival of such ship or vessel within the district, to 
 which she belongs, be delivered to the collector of the said district, and 
 be by him cancelled. And if the said master or commander shall neglect 
 to deliver the said register or enrolment and license, within the time afore- 
 said, he shall forfeit one hundred dollars. 
 
 Sec. 4. A7id be it further enacted, That in order to the licensing of any 
 ship or vessel, for carrying on the coasting trade or fisheries, the husband, 
 or managing owner, together with the master thereof, with one or more 
 sureties to the satisfaction of the collector granting the same, shall become 
 bound to pay to the United States, if such ship or vessel be of the burden 
 of five tons, and less than twenty tons, the sum of one hundred dollars ; 
 and if twenty tons, and not exceeding thirty tons, the sum of two hundred 
 dollars ; and if above thirty tons, and not exceeding sixty tons, the sum 
 of five hundred dollars ; and if above sixty tons, the sum of one thousand 
 dollars, in case it shall appear, within two years from the date of the bond, 
 that such ship or vessel has been employed in any trade, whereby the 
 revenue of the United States has been defrauded during the time the 
 license granted to such ship or vessel remained in force ; and the master 
 of such ship or vessel shall also swear, or afiirm, that he is a citizen of 
 the United States, and that such license shall not be used for any other 
 vessel, or any other employment, than that for which it is specially 
 granted, or in any trade or business, whereby the revenue of the United 
 States may be defrauded ; and if such ship or vessel be less than twenty 
 tons burden, the husband or managing ownei- shall swear or affirm, that 
 she is wholly the property of a citizen or citizens of the United States ; 
 whereupon it shall be the duty of the collector of the district comprehend- 
 ing the port, whereto such ship or vessel may belong (the duty of six 
 cents per ton being first paid), to grant a license, in the form following : 
 " License for carrying on the [here insert, coasting trade, whale fishery, 
 or cod fishery, as the case may be]. 
 
 "In pursuance of an act of the Congress of the United States of America, 
 intituled ' An act for enrolling and licensing ships or vessels to be em- 
 ployed in the coasting trade and fishei'ies, and for regulating the same,' 
 [inserting here the name of the husband or managing owner, with his 
 occupation and place of abode, and the name of the master, with the place 
 of his abode] having given bond, that the [insert here the description of 
 the vessel, whether ship, brigantine, snow, schooner, sloop, or whatever 
 else she may be], called the [insert here the vessel's name], whereof the 
 said [naming the master] is master, burden [insert here the number of 
 
 45*
 
 534 APPENDIX. 
 
 tons, in wordo] tons, as appears by her enrolment, dated at [naming tlie 
 district, day, month, and year, in words at lengtli, (but if she be less than 
 twenty tons, insert, instead thereof,) proof being had of her admeasure- 
 ment] shall not be employed in any trade, while this license shall continue 
 in force, whereby the revenue of the United States shall be defi'auded, 
 and having also sworn (or affirmed) that this license shall not be used for 
 any other vessel, or for any other employment, than is herein specified, 
 license is hereby granted for the said [inserting here the description of 
 the vessel] called the [inserting here the vessel's name] to be employed 
 in carrying on the [inserting here, coasting trade, whale fishery, or cod 
 fishery, as the case may be] for one year from the date hereof, and no 
 longer: Given under my hand and seal, at [naming the said district], this 
 [inserting the particular day] day of [naming the month] in the year 
 [specifying the number of the year in words at length]." 
 
 Sec. 5. And be it further enacted, That no license, gi'anted to any ship 
 or vessel, shall be considered in force, any longer than such ship or vessel 
 is owned, and of the description set forth in such license, or for carrying 
 on any other business or employment, than that for which she is specially 
 licensed, and if any ship or vessel be found with a forged or altered license, 
 or making use of a license granted for any other ship or vessel, such ship 
 or vessel, with her tackle, apparel, and the cargo found on board her, shall 
 be forfeited. 
 
 Sec. 6. And he it further enacted, That after the last day of May next, 
 every ship or vessel of twenty tons or upwards (other than such as are 
 registered) found trading between district and district, or between differ- 
 ent places in the same district, or carrying on the fishery, without being 
 enrolled and licensed, or if less than twenty tons, and not less than five 
 tons, without a license, in manner as is provided by this act, such ship or 
 vessel, if laden witli goods the growth or manufacture of the United 
 States only (distilled spirits excepted) or in ballast, shall pay the same 
 fees and tonnage in every port of the United States, at which she may 
 arrive, as ships or vessels not belonging to a citizen or citizens of the 
 United States, and if she have on board any articles of foreign growth or 
 manufacture, or distilled spirits, other than sea stores, the ship or vessel, 
 together with her tackle, apparel, and furniture, and the lading found on 
 board, shall be forfeited : Provided, however, if such ship or vessel be at 
 sea, at the expiration of the time for which the license was given, and 
 the master of such ship or vessel shall swear or affirm that such was 
 the case, and shall also within forty-eight hours after his arrival deliver 
 to the collector of the district in which he shall first arri\e the license 
 which shall have expired, the forfeiture aforesaid shall not be incurred, 
 nor shall the ship or vessel be liable to pay the fees and tonnage afore- 
 said.
 
 APPENDIX. 535 
 
 Sec. 7. And he it further enacted, That the collector of each district 
 shall progressively number the licenses by him granted, beginning anew 
 at the commencement of each year, and shall make a record thereof in a 
 book, to be by him kept for that purpose, and shall, once in three months, 
 transmit to the register of the treasuiy, copies of the licenses, which shall 
 have been so granted by him ; and also of such licenses, as shall have 
 been given up or returned to him, respectively, in pursuance of this act. 
 And where any ship or vessel shall be licensed, or enrolled anew, or being 
 licensed or enrolled, shall afterwards be registered, or being registered, 
 shall afterwards be enrolled, or licensed, she shall, in every such case, be 
 enrolled, licensed, or registered by her former name. 
 
 Sec. 8. And be it further enacted, That if any ship or vessel, enrolled 
 or licensed, as aforesaid, shall proceed on a foreign voyage, without first 
 giving up her enrolment and license, to the collector of the district com- 
 prehending the port, from which she is about to proceed on such foreign 
 voyage, and being duly registered by such collector, every such ship or 
 vessel, together with her tackle, apparel, and furniture, and the goods, 
 wares, and merchandise, so imported therein, shall be liable to seizure 
 and forfeiture : Provided always, if the port, from which such ship or 
 vessel is about to proceed on such foreign voyage, be not within the dis- 
 trict, where such ship or vessel is enrolled, the collector of such district 
 shall give to the master of such ship or vessel a certificate, specifying 
 that the enrolment and license of such ship or vessel is received by him, 
 and the time when it was so received ; which certificate shall afterwards 
 be delivered by the said master to the collector, who may have granted 
 such enrolment and license. 
 
 Sec. 9. And he it farther enacted, That the license, granted to any ship 
 or vessel, shall be given up to the collector of the district, who may have 
 granted the same, within three days after the expiration of the time, for 
 which it was granted, in case such ship or vessel be then within the dis- 
 trict, or if she be absent, at that time, within three days from her first 
 arrival within the district afterwards, or if she be sold out of the district, 
 within three days after the arrival of the master witliin any district, to 
 the collector of such district, taking his certificate therefor; and if the 
 master thereof shall neglect, or refuse to deliver up the license, as afore- 
 said, he shall forfeit fifty dollars; but if such license shall have been pre- 
 viously given up to the collector of any other district, as authorized by 
 this act, and a certificate thereof under the hand of such collector, be 
 produced by such master, or if such license be lost, or destroyed, or unin- 
 tentionally mislaid, so that it cannot be found, and the master of such 
 ship or vessel shall make and subscribe an oath or afiirmation, that such 
 license is lost, destroyed, or unintentionally mislaid, as he verily beheves, 
 and that the same, if found, shall be delivered up, as is herein required,
 
 536 APPENDIX. 
 
 then the aforepaid penalty shall not be incurred. And if such license 
 shall be lost, destroyed, or unintentionally mislaid, as aforesaid, l^efore the 
 expiration of the time for which it was granted, upon the like oath or 
 affirmation being made and subscribed by the master of such ship or ves- 
 sel, the said collector is hereby authorized and recpiired, upon application 
 being made therefor, to license such ship or vessel anew. 
 
 Sec. 10. And he it farther enacted, That it shall and may be lawful 
 for the owner or owners of any licensed ship or vessel, to return such 
 license to the collector who granted the same at any time within the year, 
 for which it was granted, who shall thereupon, cancel the same and shall 
 license such vessel anew, upon the application of the owner or owners, 
 and upon the conditions hereinbefore required, being complied with ; and 
 in case the term, for which the foi-mer license was granted, shall not be 
 expired, an abatement of the tonnage of six cents per ton shall be made, 
 in the proportion of the time so unexpired. 
 
 Sec. 11. And he it further enacted, That every licensed ship or vessel 
 shall have her name, and the port to which she belongs, painted on her 
 stern, in the manner as is provided for registered ships or vessels, and if 
 any licensed ship or vessel be found, without such painting, the owner or 
 owners thereof shall pay twenty dollars. 
 
 Sec. 12. And he it further enacted, That when the master of any 
 licensed ship or vessel, ferry boats excepted, shall be changed, the new 
 master, or, in case of his absence, the owner or one of the owners thereof, 
 shall report such change to the collector residing at the port where the 
 same may happen, if there be one, otherwise, to the collector residmg at 
 any port, where such ship or vessel may next arrive, who, upon the oath 
 or affirmation of such new master, or in case of his absence, of the owner 
 or one of the owners, that he is a citizen of the United States, and that 
 such ship or vessel shall not, while such license continues in force, be em- 
 ployed in any mannei', whereby the revenue of the United States may be 
 defrauded, shall indorse such change on the license, with the name of the 
 new master ; and when any change shall happen, as aforesaid, and such 
 change shall not be reported, and the indorsement made of such change, 
 as is herein required, such ship or vessel, found carrying on the coasting 
 trade or fisheries, shall be subject to pay the same fees and tonnage, as a 
 vessel of the United States, having a register, and the said new master 
 shall forfeit and pay the sum of ten dollars. 
 
 Sec. 13. And he it further enacted. That it shall be lawful, at all times, 
 for any officer concerned in the collection of the revenue, to inspect the 
 enrolment or license of any ship or vessel ; and if the master of any such 
 ship or vessel shall not exhibit the same, when thereunto required by such 
 officer, he shall pay one hundred dollars. 
 
 Sec. 14. And he it further enacted, That the master or commander of
 
 APPENDIX. 537 
 
 every ship or vessel licensed for carrying on the coasting trade, destined 
 from a district in one State, to a district in the same, or an adjoining 
 State on the sea-coast, or on a navigable river, having on board, either 
 distilled spirits in casks exceeding five hundred gallons, wine in casks 
 exceeding two hundred and fifty gallons, or in bottles exceeding one hun- 
 di'ed dozens, sugar in casks or boxes exceeding three thousand pounds, 
 tea in chests or boxes exceeding five hundred pounds, coffee in casks or 
 bags exceeding one thousand pounds, or foreign merchandise in packages, 
 as imported, exceeding in value four hundred dollars, or goods, wares, or 
 merchandise, consisting of such enumerated or other articles of foreign 
 growth or manufacture, or of both, whose aggregate value exceeds eight 
 hundred dollars, shall, previous to the departure of such ship or vessel 
 from the jjort where she may then be, make out and subscribe dnplicate 
 manifests of the whole of such cargo on boai'd such ship or vessel, 
 specifying in such manifests, the marks and numbers of every cask, bag, 
 box, chest, or package containing the same, with the name and place of 
 residence of every shipper and consignee, and the quantity shipped by 
 and to each, and if there be a collector or sui'veyor, residing at such port, 
 or within five miles thereof, he shall deliver such manifests to the col- 
 'lector, if there be one, otherwise to the surveyor, before whom he shall 
 swear or affirm, to the best of his knowledge and belief, that the goods 
 therein contained were legally imported, and the duties thereupon paid 
 or secured, or if spirits distilled within the United States, that the duties 
 thereupon have been paid or secured, whereupon the said collector or 
 surveyor shall certify the same on the said manifests, one of which he 
 shall return to the said master, with a permit, specifying thereon, gen- 
 erally, the lading on board such ship or vessel, and authorizing him to 
 proceed to the port of his destination. And if any ship or vessel, being 
 laden and destined, as aforesaid, shall depart from the port where she 
 may then be, without the master or commander having first made out 
 and subscribed duplicate manifests of the lading on board such ship or 
 vessel, and in case there be a collector or surveyor residing at such port, 
 or within five miles thereof, without having previously delivered the 
 same to the said collector or surveyor, and obtaining a permit, in manner 
 as is herein required, such master or commander shall pay one hundred 
 dollars. 
 
 Sec. 15. And be it farther enacted, That the master or commander of 
 every ship or vessel licensed for carrying on the coasting-trade, having 
 on board, either distilled spirits in casks exceeding five hundred gallons, 
 wine in casks exceeding two hundred and fifty gallons, or in bottles 
 exceeding one hundred dozens, sugar in casks or boxes exceeding three 
 thousand pounds, tea in chests or boxes exceeding five hundred pounds, 
 coffee in casks or bags exceeding one thousand pounds, or foreign mer-
 
 53S APPENDIX. 
 
 chanclise in packages, as imported, exceeding in value four hundred 
 dollars, or goods, wares, or merchandise, consisting of such enumerated 
 or other articles of foreign growth or manufacture, or of botli, whose 
 aggregate value exceeds eight hundred dollars, and arriving from a dis- 
 trict in one < State, at a district in the same or an adjoining State on the 
 sea-coast, or on a navigable river, shall, previous to the unlading of any 
 part of the cargo of such ship or vessel, deliver to the collector, if there 
 be one, or if not, to the surveyor residing at the port of her arrival, or if 
 there be no collector or surveyor residing at such port, then to a collector 
 or surveyor, if there be any such officer, residing within five miles 
 thereof, the manifest of the cargo, certified by the collected or surveyor 
 of the district from whence she sailed (if there be such manifest), other- 
 wise the duplicate manifests thereof, as is herein before directed, to the 
 truth of which, before such officer, he shall swear or affirm. And if 
 there have been taken on board such ship or vessel, any other or more 
 goods, than are contained in such manifest or manifests, since her depart- 
 ure from the port from whence she first sailed, or if any goods have 
 been since landed, the said master or commander shall make known and 
 particularize the same to the said collector or surveyor, or if no such 
 goods have been so taken on board or landed, he shall so declare, to the 
 truth of which he shall swear or affirm : Whereupon, the said collector 
 or surveyor shall grant a permit for unlading a part, or the whole of 
 such cargo, as the said master or commander may request. And if there 
 be no collector or surveyor, residing at, or within five miles of the said 
 port of her arrival, the master or commander of such ship or vessel m^y 
 proceed to discharge the lading from on board such ship or vessel, but 
 shall deliver to the collector or surveyor, residing at the first port, where 
 he may next afterwards arrive, and within twenty-four hours of his arri- 
 val, the manifest or manifests aforesaid, noting thereon the times when, 
 and places where, the goods therein mentioned have been unladen, to the 
 truth of which, before the said last-mentioned collector or surveyor, he 
 shall swear or affirm ; and if the master or commander of any such ship 
 or vessel, being laden as aforesaid, shall neglect or refuse to deliver the 
 manifest or manifests, at the times, and in the manner, herein directed, 
 he shall pay one hundred dollars. 
 
 Sec. 16. And he it further enacted, That the master or commander 
 of every ship or vessel, licensed for carrying on the coasting-trade, and 
 being destined from any district of the United States, to a district other 
 than a district in the same, or an adjoining State, on the sea-coast, or 
 on a navigable river, shall, previous to her departure, deliver to the col- 
 lector residing at the port where such ship or vessel may be, if there is 
 one, otherwise to the collector of the district comprehending such port, 
 or to a surveyor within the district, as the one or the other may reside
 
 APPENDIX. 539 
 
 nearest to the port at wliicli such ship or vessel may be, dupHcate mani- 
 fests of the whole cargo on board such ship or vessel, or if there be no 
 cargo on board, he shall so certify, and if there be any distilled spirits^ 
 or goods, wares, and merchandise, of foreign growth or manufacture on 
 board, other than what may, by the collectoi", be deemed sufficient for 
 sea stores, he shall specify in such manifests, the marks and numbers of 
 every cask, bag, box, chest, or package, containing the same, with the 
 name, and place of residence, of every shipper and consignee of such 
 distilled spiiits, or goods of foreign growth or manufacture, and the 
 quantity shipped by, and to each, to be by him subscribed, and to the 
 truth of whicli he shall swear or affii'm ; and shall also swear or affirm 
 before the said collector or surveyor, that such goods, wares, or mer- 
 chandise, of foreign growth or manufjicture, were, to the best of his 
 knowledge and belief, legally imported, and the duties thereupon paid 
 or secured ; or if spirits distilled within the United States, that the duties 
 thereupon have been duly paid or secured; upon the performance of 
 which, and not before, the said collector or surveyor shall certify the 
 same on the said manifests ; one of which he shall return to the master, 
 with a permit, thereto annexed, authorizing him to proceed to the port 
 of his destination. And if any such ship or vessel shall depart from the 
 port where she may then be, having distilled spirits, or goods, wares, or 
 merchandise, of foreign growth or manufacture on board, without the 
 several things herein required, being complied with, the master thereof 
 shall forfeit one hundred dollars ; or if the ladmg be of goods, the growth 
 or manufacture of the United States only, or if such ship or vessel have 
 no cargo, and she depart, without the several things herein required, being 
 complied with, the said master shall forfeit and pay fifty dollars. 
 
 Sec. 17. Aiid be it further enacted, That the master or commander 
 of every ship or vessel, licensed to carry on the coasting trade, arriving 
 at any district of the United States, from any district, other than a dis- 
 trict m the same, or an adjoining State on the sea-coast, or on a naviga- 
 ble river, shall deliver to the collector residing at the port where she may 
 arrive, if there be one, otherwise to the collector or surveyor in the dis- 
 trict comprehending such port, as the one, or the other, may reside near- 
 est thereto, if the collector or surveyor reside at a distance not exceeding 
 five _ miles, within twenty -four hours, or if at a gi-eater distance, within 
 forty-eight hours next after his arrival ; and previous to the unlading 
 any of the goods brought in such ship or vessel, the manifest of the 
 cargo (if there be any) certified by the collector or surveyor of the dis- 
 trict from whence she last sailed, and shall make oath or affirmation, 
 before the said collector or surveyor, that there was not when he sailed 
 from the, district where his manifest was certified, or has been since, or 
 then is, any more, or other goods, wares, or merchandise of foreign
 
 540 APPENDIX. 
 
 growth or manufacture, or distilled spirits (if there be any, other than 
 sea stores, on board such vessel) than is therein mentioned ; and if there 
 be no such goods, he shall so swear or affirm ; and if there be no cargo 
 on board, he shall produce the certiiicate of the collector or surveyor of 
 the district from whence she last sailed, as aforesaid, that such is the 
 case : Whereupon such collector or surveyor shall grant a permit for un- 
 lading the whole, or part of such cargo (if there be any) -vvithin his dis- 
 trict, as the master may request ; and where a part only of the goods, 
 wares, and merchandise, of foreign growth or manufacture, or of distilled 
 spirits, brought in such ship or vessel, is intended to be landed, the said 
 collector or surveyor shall make an indorsement of such part, on the back 
 of the manifest, specifying the articles to be landed ; and shall return 
 such manifest to the master, indorsing also thereon, his permission for 
 such ship or vessel to proceed to the place of her destination ; and if the 
 master of such ship or vessel shall neglect or refuse to deliver the mani- 
 fest (or if she has no cargo, the certificate), within the time herein 
 directed, he shall forfeit one hundred dollars, and the goods, wares, and 
 merchandise of foreign growth or manufacture, or distilled sj)irits, found 
 on board, or landed from such ship or vessel, not being certified, as is 
 herein required, shall be forfeited, and if the same shall amount to the 
 value of eight hundred dollars, such ship or vessel, with her tackle, ap- 
 parel, and furniture, shall be also forfeited. 
 
 Sec. 18. And he it further enacted, That nothing in this act contained 
 shall be so construed, as to oblige the master or commander of any ship 
 or vessel, licensed for carrying on the coasting-trade, bound from a dis- 
 trict in one State, to a district ua the same, or an adjoining State on the 
 sea-coast, or on a navigable river, having on board goods, wares, or mer- 
 chandise, of the growth, product, or manufactures of the United States 
 only (except distilled spirits) or distilled spirits, not more than five hun- 
 dred gallons, w^ine in casks not more than two hundred and fifty gallons, 
 or in bottles not more than one hundred dozens, sugar in casks or boxes 
 not more than three thousand pounds, tea in chests or boxes not more 
 than five hundred pounds, coffee in casks or bags not more than one 
 thousand pounds, or foreign merchandise in packages, as imported, of not 
 more value than four hundred dollars, or goods, wares, or merchandise, 
 consisting of such enumerated or other articles of foreign gi'owth or 
 manufacture, or of both, whose aggi-egate value shall be not more than 
 eight hundred dollars, to deliver a manifest thereof, or obtain a permit, 
 previous to her departure, or on her arrival within such district, to make 
 any report thereof; but such master shall be provided with a manifest, 
 by him subscribed, of the lading, of what kind soever, which was on 
 board such ship or vessel, at the <lime of his departure from the district 
 from which she last sailed, and if the same, or any part of such lading,
 
 APPENDIX. 541 
 
 consists of distilled spirits, or goods, wares, or merchandise, of foreign 
 growth or manufacture, with the marks and numbers of each cask, bag, 
 box, chest, or package, containing the same, with the name of the ship- 
 per and consignee of each ; which manifest shall be by him exhibited, 
 for the inspection of any officer of the revenue, when, by such officer, 
 thereunto required ; and shall also inform such officer, from whence such 
 ship or vessel last sailed, and how long she has been in port, when by 
 him so interrogated. And if the master of such ship or vessel shall not 
 be provided, on his arrival within any such district, with a manifest, and 
 exhibit the same, as is herem required, if the lading of such ship or ves- 
 sel consist wholly of goods, the produce or manufacture of the United 
 States (distilled spirits excepted) he shall forfeit twenty dollars, or if 
 there be distilled spirits, or goods, wares, or merchandise, of foreign 
 groAvth or manufacture, on board, excepting what may be sufficient for 
 sea stores, he shall forfeit forty dollars ; or if he shall refuse to answer 
 the interrogatories truly, as is herein required, he shall forfeit the sum of 
 one hundred dollars. And if any of the goods laden on board such ship 
 or vessel, shall be of foreign growth or manufacture, or of spirits dis- 
 tilled within the United States, so much of the same as may be found on 
 board such ship or vessel, and which shall not be included in the mani- 
 fest exhibited by such master, shall be forfeited. 
 
 Sec. 19. And he it further enacted, That it shall and maybe lawful 
 for the collector of the district of Pennsylvania, to grant permits for the 
 transportation of goods, wares, or merchandise, of foreign growth or 
 manufacture, across the State of New Jersey, to the district of New York, 
 or across the State of Delaware, to any district in the State of Maryland 
 or Virginia ; and for the collector of the district of New York, to gi-ant 
 like permits for the transportation across the State of New Jersey ; and 
 for the collector of any district of Maryland or Virginia, to grant like 
 permits for the transportation across the state of Delaware, to the district 
 of Pennsylvania : Provided, That every such permit shall express the 
 name of the owner, or person sending such goods, and of the person or 
 persons, to whom such goods shall be consigned, with the marks, numbers, 
 and description of the packages, whether bale, box, chest, or otherwise, 
 and the kind of goods contained therein, and the date, when granted ; 
 and th« owner, or person sending such goods, shall swear or affirm, that 
 they were legally imported, and the duties thereupon paid or secured : 
 And provided also, That the owner or consignee of all such goods, wares, 
 and merchandise, shall, within twenty-four hours after the arrival thereof, 
 at the place to which they were permitted to be transported, report the 
 same, to tlie collector of the district where they shall so arrive, and shall 
 deliver up the permit accompanying the same, and if the owner or con- 
 signee aforesaid, shall neglect or refuse to make due entry of such goods, 
 
 -VOL. I. 46
 
 542 APPENDIX. 
 
 ■within the time, and in the manner, herein directed, all such goods, 
 Avares, and merchandise, shall be subject to forfeiture ; and if the permit 
 granted shall not be given up, within the time limited for making the said 
 report, the person or persons to whom it was granted, neglecting or re- 
 fusing to deliver it up, shall forfeit fifty dollars for every twenty-four 
 hours it sliall be withheld afterwards : Provided, That where the goods, 
 wares, and merchandise, to be transported in manner aforesaid, shall be 
 of less value than eight hundred dollai's, the said oath and permit shall 
 not be deemed necessary, nor shall the owner or consignee be obliged to 
 make report to the collector of the district where the said goods, wares, 
 and merchandise shall arrive. 
 
 Sec. 20. And be it further enacted, That when any ship or vessel of 
 the United States, registered according to law, shall be employed in going 
 from any one district in the United States, to any other district, such ship 
 or vessel, and the master or commander thereof, with the goods she may 
 have on board, previous to her departure from the district, where she 
 may be, and also, upon her arrival in any other district, shall be subject 
 (except as to the payment of fees) to the same regulations, provisions, 
 penalties, and forfeitures, and the like duties are imposed on like officers, 
 as is provided by the sixteenth and seventeenth sections of this act, for 
 ships or vessels licensed for cai-rying on the coasting trade : Provided, 
 however, that nothing herein contained, shall be construed to extend to 
 registered ships or vessels of the United States, having on board goods, 
 wares, and merchandise of foreign growth or manufacture, brought into 
 the United States in such ship or vessel from a foreign port, and on 
 which the duties have not been paid or secured, accordmg to law. 
 
 Sec. 21. And he it further enacted. That when any ship or vessel, 
 licensed for carrying on the fishery, shall be intended to touch and trade 
 at any foreign port or place it shall be the duty of the master, com- 
 mander, or owner, to obtain permission for that purpose, from the col- 
 lector of the district where such ship or vessel may be, previous to her 
 departure, and the master or commander of every such ship or vessel, 
 shall deliver like manifests, and make like entries, both of the ship or 
 vessel, and of the goods, wares, or merchandise on board, within the 
 same time, and under the same penalty, as by the laws of the United 
 States, are provided for ships or vessels of the United States ai"riving 
 from a foreign port. And if any ship or vessel, licensed for carrying 
 on the fisheries, shall be found within three leagues of the coast, with 
 goods, wares, or merchandise of foreign growth or manufacture, exceed- 
 ing the value of five hundred dollars, without having such permission, as 
 is herein directed, such ship or vessel, together with her goods, wares, 
 or merchandise of foreign growth or manufacture imported therein, shall 
 be subject to seizure and forfeiture.
 
 APPENDIX. 543 
 
 Sec. 22. And be it further enacted, That the master or commander of 
 every ship or vessel, employed in the transportation of goods from dis- 
 trict to district, that shall put into a port, other than the one to which she 
 was bound, shall, within twenty-four hours of his arrival, if there be an 
 officer residing at such port, and she continue there so long, make report 
 of his arrival, to such officer, with the name of the place he came from, 
 and to which he is bound, with an account of his lading ; and if the mas- 
 ter of such ship or vessel shall neglect or refuse to do the same, he shall 
 forfeit twenty dollars. 
 
 Sec. 23. And be it further enacted, That if the master or commander 
 of any ship or vessel, employed in the transportation of goods, from dis- 
 trict to district, having on board goods, wares, or merchandise, of foreign 
 growth or manufacture, or distilled spirits, shall, on his ai-rival at the port 
 to which he was destined, have lost or mislaid the certified manifest of the 
 same, or the permit which was given therefor, by the collector or sur- 
 veyor of the district from whence he sailed, the collector of the district 
 where he shall so arrive, shall take bond for the payment of the duties 
 on such goods, wares, and merchandise of foreign growth or manufacture, 
 or distilled spirits, within six months, in the same manner, as though they 
 were imported from a foreign country : Provided however, such bond shall 
 be cancelled, if the said master shall deliver, or cause to be delivered to 
 the collector taking such bond, and within the term therein limited for 
 payment, a certificate from the collector or surveyor of the district from 
 whence he sailed, that such goods were legally exported in such ship or 
 vessel, from such district. • 
 
 Sec. 24. Aiid be it further enacted, That the master or commander of 
 every foreign ship or vessel, bound from a district in the United States, 
 to any other district within the same, shall, in all cases, previous to her 
 departure, from such district, deliver to the collector of such district, du- 
 plicate manifests of the lading on board such ship or vessel, if there be 
 any, or if there be none, he shall declare that such is the case, and to the 
 truth of such manifests or declaration, he shall swear or affirm, and also 
 obtain a permit, from the said collector, authorizing him to proceed to the 
 place of his destination. And the master or commander of every such 
 ship or vessel, on his arrival within any district, from any other district, 
 shall, in all cases, within forty-eight hours after his arrival, and previous 
 to the unlading any goods from on board such ship or vessel, deliver to 
 the collector of the district where he may have arrived, a manifest of the 
 goods laden on board such ship or vessel, if any there be, or if in ballast 
 only, he shall so declare, and to the truth of which manifest or declara- 
 tion, he shall swear or aifirm ; and also, that such manifest contains an 
 account of all the goods, wares, and merchandise which were on board
 
 544 APPENDIX. 
 
 such ship or vessel, at the time, or have been, since her departure from 
 the place from whence she shall be reported last to have sailed ; and he 
 shall also deliver to such collector the permit which was given him from 
 the collector of the district from whence he sailed. And if the master 
 or commander of any such ship or vessel shall neglect or refuse comply- 
 ing with any of the requirements herein made, he shall forfeit one hun- 
 dred dollars : Provided always, That nothing herein contained shall be 
 construed as affecting the payment of tonnage, or any other requirements 
 which such ships or vessels are now subject to by the present existing 
 laws of the United States. 
 
 Sec. 25. And he it further enacted, That in every case, where the 
 collector is, by this act, directed to grant any enrolment, license, certifi- 
 cate, permit, or other document, the naval officer residing at the port (if 
 there be one) shall sign the same, and every surveyor who shall certify 
 a manifest, or grant a permit, or who shall receive any certified mani- 
 fest, or a permit as is provided for in this act, shall make monthly returns 
 thereof, or sooner, if it can conveniently be made, to the collector of the 
 district where such surveyor may reside. 
 
 Sec. 26. And be it further enacted, That before any ship or vessel, of 
 the burden of five tons, and less than twenty tons, shall be licensed, the 
 same admeasurement shall be made of such ship or vessel, and the same 
 provisions observed relative thereto, as are to be observed in case of 
 admeasuring ships or vessels to be registered or enrolled ; but in all 
 cases, where such ship or vessel, or any other licensed ship or vessel, 
 shall have been once admeasured, it shall not be necessary to measure 
 such ship or vessel anew, for the purpose of obtaining another enrol- 
 ment or license, except such ship or vessel shall have undergone some 
 alteration as to her burden, subsequent to the time of her former 
 license. 
 
 Sec. 27. And he it farther enacted. That it shall be lawful for any 
 officer of the revenue, to go on board of any ship or vessel, whether she 
 shall be within or without his district, and the same to inspect, search, 
 and examine, and if it shall appear, that any breach of the laws of the 
 United States has been committed, whereby such ship or vessel, or the 
 goods, wares, and merchandise on board, or any part thereof, is, or are 
 liable to forfeiture, to make seizure of the same. 
 
 Sec. 28. And he it further enacted, That in every case where a for- 
 feiture of any ship or vessel, or of any goods, wares, or merchandise, 
 shall accrue, it shall be the duty of the collector, or other proper officer, 
 who shall give notice of the seizui*e of such ship or vessel, or of such 
 goods, wares, or merchandise, to insert in the same advertisement, the 
 name or names, and the place or places of residence, of the person or
 
 APPENDIX. 545 
 
 persons, to whom any such ship or vessel, goods, wares, and merchandise 
 belonged, or were consigned, at the time of such seizure, if the same shall 
 be known to him. 
 
 Sec. 29. And be it fnrther enacted, That every collector, who shall 
 knowingly make any record of enrolment or license of any ship or vessel, 
 and every other officer, or person, appointed by, or under them, who 
 shall make any record, or grant any certiiicate, or other document what- 
 ever, contrary to the true intent and meaning of this act, or shall take 
 any other, or greater fees, than are by this act allowed, or shall receive, 
 for any service performed pursuant to this act, any reward or gratuity, 
 and every surveyor, or other person appointed to measure ships or ves- 
 sels, who shall wilfully deliver to any collector, or naval officer, a false 
 description of any ship or vessel, to be enrolled or licensed, in pursuance 
 of this act, shall, upon conviction of any such neglect or offence, forfeit 
 to the United States five hundred dollars, and be rendered incapable of 
 serving in any office of trust or profit, under the United States. And if 
 any person, authorized and required by this act, in respect to his office, 
 to perform any act or thing required by this act, shall Avilfully neg- 
 lect or refuse to do and perform the same, according to the true intent 
 and meaning of this act, such person, on being duly convicted thereof, 
 if not hereby subject to the penalty and disqualifications aforesaid, shall 
 forfeit and pay the sum of five hundred dollars for the first offence, and 
 a like sum for the second offence, and shall from thenceforward, be 
 rendered incapable of holding any office of trust or profit under the 
 United States. 
 
 Sec. 30. And he it further enacted, That if any person or persons shall 
 swear, or affirm to any. of the matters, herein required to be verified, 
 knowing the same to be false, such person or persons shall suffer the like 
 pains and penalties, as shall be incurred, by persons committing wilful and 
 corrupt perjury. And if any person or persons shall forge, counterfeit, 
 erase, alter, or falsify any enrolment, license, certificate, permit, or other 
 document, mentioned or required in this act, to be granted by any officer 
 of the revenue, such person or persons, so offending, shall forfeit five hun- 
 dred dollars. 
 
 Sec. 31. And be it further enacted, That if any person or persons shall 
 assault, resist, obstruct, or hinder any officer in the execution of this act, 
 or of any other act or law of the United States, herein mentioned, or of 
 any of the powers or authorities vested in him by this act, or any other 
 act or law, as aforesaid, all and every person and persons so offending, 
 shall, for every such offence, for which no other penalty is particularly 
 provided, forfeit five hundred dollars. 
 
 Sec. 32. And be it further enacted. That if any licensed ship or vessel 
 shall be transfei'red, in whole or in part, to any person, who is not, at the 
 
 46*
 
 546 APPENDIX. 
 
 time of such transfer, a citizen of, and resident within, the United States, 
 or if any such ship or vessel shall be employed in any other trade than 
 that for which she is licensed, or shall be found with a forged or altered 
 license, or one granted for any other shijo or vessel, every such ship or 
 vessel, with her tackle, apparel, and furniture, and the cargo found on 
 board her, shall be forfeited. 
 
 Sec. 33. Provided nevertheless, and he it further enacted, That in all 
 cases where the whole or any part of the lading, or cai-go, on board any 
 ship or vessel, shall belong bond fide to any person or persons other than 
 the master, owner, or mai-iners of such ship or vessel, and upon which the 
 duties shall have been previously paid or secured, according to law, shall 
 be exempted from any forfeiture under this act, any thing therein contained 
 to the contrary notwithstanding. 
 
 Sec. 34. And he it further enacted, That the fees and allowances for 
 the several duties and services, to be perfoi*med, in virtue of this act, shall 
 be as follow : that is to say : 
 
 For admeasuring every ship or vessel, in order to the enrolment, or 
 licensing and recording the same, if of the burden of five tons, and less 
 than twenty tons, fifty cents ; if of twenty tons, and not exceeding seventy 
 tons, seventy-five cents; if above seventy tons, and not exceeding one 
 hundred tons, one hundred cents ; if above one hundred tons, one hun- 
 dred and fifty cents : 
 
 For every certificate of enrolment, fifty cents : 
 
 For every iudoi'sement on a certificate of enrolment, twenty cents : 
 
 For every license, and gi-anting the same, including the bond, if not ex- 
 ceeding twenty tons, twenty-five cents ; if above twenty, and not more 
 than one hundx'ed tons, fifty cents ; and if more than one hundred tons, 
 one hundred cents : 
 
 For every indorsement on a license, twenty cents : 
 
 For certifying manifests, and granting a permit for a licensed vessel to 
 proceed from district to district, twenty-five cents, if less than fifty tons, 
 and if above fifty tons, fifty cents : 
 
 For receiving a certified manifest, and granting a permit, on the arrival 
 of such vessel, twenty-five cents, if less than fifty tons, and if above fifty 
 tons, fifty cents : 
 
 For certifying manifests, and granting a permit for a registered vessel 
 to proceed from district to district, one hundred and fifty cents : 
 
 For receiving a certified manifest, and granting a permit, on the arrival 
 of such registered vessel, one hundred and fifty cents : 
 
 For granting a pei'mit for a vessel, not belonging to a citizen or citizens 
 of the United States, to proceed from district to district, and receiving the 
 manifest, two hundred cents: 
 
 For receiving a manifest, and granting a permit, to unload, for such last-
 
 APPENDIX. 547 
 
 mentioned vessel, on her arrival in one district, from another district, two 
 hundred cents : 
 
 For granting a permit for a vessel carrying on the fishery, to trade at a 
 foreign port, twenty-five cents, and for the report and entry of any foreign 
 goods imported in such vessel, twenty-five cents. 
 
 And where a surveyor shall certify a manifest, or grant a permit, or 
 receive a certified manifest and grant a permit, the fees arising therefrom, 
 shall be received by him solely for his use. And all other fees arising, 
 by virtue of this act, shall be received, and accounted for, by the collector, 
 or, at his option, by the naval officer, where there is one, and where there 
 is a collector, naval ofiicer, and surveyor, shall be equally divided, monthly, 
 between the said officers ; and where there is no naval officer, two thirds 
 to the collector, and the other third to the surveyor ; and where there is 
 only a collector, he shall receive the whole amount thereof; and where 
 there is more than one surveyor in any district, each of them shall receive 
 his proportionable part of such fees, as shall arise in the port, for which 
 he is appointed : Provided always, That in all cases, where the tonnage of 
 any ship or vessel shall be ascertained, by any person appointed for that 
 purpose, such person shall be paid a reasonable compensation therefor, 
 out of the fees aforesaid, before any distribution thereof, as aforesaid ; 
 and every collector and naval officer, and every surveyor, wlio shall reside 
 at a port where there is no collector, shall cause to be affixed, and con- 
 stantly kept, in some conspicuous place of his office, a fair table of the 
 rates of fees, demandable by this act. 
 
 Sec. 35. And be it further enacted, That all penalties and forfeitures, 
 which shall be incurred by virtue and force of this act, shall and may be 
 sued for, prosecuted and recovered, in like manner, as penalties and for- 
 feitures, incurred by virtue of the act, intituled " An act to regulate the 
 collection of the duties imposed by law on goods, wares, and merchandise 
 imported into the United States, and on the tonnage of ships or vessels," 
 may be sued for, prosecuted and recovered, and shall be appi'opriated in 
 like manner : Provided always, That if any officer, entitled to a part or 
 share of any such penalty or forfeiture, shall be necessary as a witness on 
 the trial for such penalty or forfeiture, such officer may be a witness upon 
 the said trial ; but in such case, he shall not receive, or be entitled to 
 any part or share of the said penalty or forfeiture, and the part or share 
 to which he would otherwise have been entitled, shall accrue to the United 
 States. 
 
 Sec. 36. And be it further enacted, That this act shall commence, and 
 take effect, from and after the last day of May next, and thenceforth, the 
 act, intituled " An act for registering and clearing vessels, regulating the 
 coasting trade, and for other purposes," and also, the act, intituled " An
 
 548 APPENDIX. 
 
 act to explain and amend an act, intituled An act for registering and 
 clearing vessels, regulating the coasting trade, and for other purposes," 
 shall be repealed, and cease to operate, except as to the validity of the 
 registers, records, enrolments, and licenses, witl\the certificates and docu- 
 ments, which shall have been done or granted, in pursuance of those acts, 
 prior to the first day of June next, which shall continue to be of the like 
 force and effect, as if the said acts were not repealed ; and except also, 
 as to the prosecution, recovery, and distribution of, and for fines, pen- 
 alties, and forfeitures, which may have been incurred prior to the first 
 day of June next, for which purpose likewise, the said acts shall continue 
 m force. 
 
 Sec. 37. And he it further enacted, That nothing in this act, shall be 
 construed to extend to any boat or lighter, not being masted, or if masted, 
 and not decked, eoiploycd in the harbor of any town or city. 
 
 ACT OF 1796, CHAPTER XXXVI. (1 U. S. Stats, at Large, 477). 
 An Act for the Relief and Protection of American Seamen. 
 
 Section 1. Be it enacted hy the Senate and House of Representatives 
 of the United States of America in Congress assembled, That the President 
 of the United States, by and with the advice and consent of the Senate, 
 be, and hereby is authorized to appoint two or more agents ; the one of 
 whom shall reside in the kingdom of Great Britain, and the others at such 
 foreign ports, as the President of the United States shall direct. That 
 the duty of the said agents shall be, under the direction of the President 
 of the United States, to inquire into the situation of such American citi- 
 zens or others, sailing, conformably to the law of nations, under the pro- 
 tection of the American flag, as have been, or may hereafter be impressed 
 or detained by any foreign power, to endeavor, by all legal means, to 
 obtain the release of such American citizens or others, as aforesaid ; and 
 to render an account of all impressments and detentions whatever, from 
 American vessels, to the executive of the United States. 
 
 Sec. 2. And be it further enacted, That if it should be expedient to 
 employ an additional agent or agents, for the purposes authorized by this 
 law, during the recess of the senate, the president alone be, and hereby 
 is, authoi-ized to appoint such agent or agents. 
 
 Sec. 3. And be it further enacted. That the President of the United 
 States be, and he is hereby authorized to draw, annually, out of the 
 treasury of the United States, a sum not exceeding fifteen thousand dol- 
 lars, not otherwise appropriated, to be applied by him in such proportions
 
 APPENDIX. 549 
 
 as he shall direct, to the payment of the compensation of the said agents, 
 for their services, and the incidental expenses attending the performance 
 of the duties imposed on them by this act. 
 
 Sec. 4. And be it further enacted, That the collector of every district 
 shall keep a book or books, in Avhich, at the request of any seaman, being 
 a citizen of the United States of America, and producing proof of his citi- 
 zenship, authenticated in the manner hereinafter directed, he shall enter 
 the name of such seaman, and shall deliver to him a certificate, in the fol- 
 lowing form, that is to say : " I, A. B., collector of the district of D., do 
 hereby certify, That E. F., an American seaman, aged years, or 
 
 thereabouts, of the height of feet inches [describing the 
 
 said seaman as particularly as may be], has, this day, produced to me 
 pi'oof in the manner directed in the act, intituled ' An act for the relief and 
 protection of American seamen ; ' and, pui'suant to the said act, I do here- 
 by certify, that the said E. F. is a citizen of the United States of America 
 In witness whereof, I have hereunto set my hand and seal of office, 
 this day of ." And it shall be the duty of the collectors 
 
 aforesaid, to file and preserve the proofs of citizenship produced, as afore- 
 said : And for each certificate delivered, as aforesaid, the said collectors 
 shall be entitled to receive from the seamen applying for the same, the 
 sum of twenty-five cents. 
 
 Sec. 5. And, in order that full and speedy information may be obtained 
 of the seizure or detention, by any foreign power, of any seamen employed 
 on board any ship or vessel of the United States, Be it further enacted, 
 That it shall, and hereby is declared to be the duty of the master of every 
 ship or vessel of the United States, any of the crew whereof shall have 
 been impressed or detained by any foreign power, at the first port at which 
 such ship or vessel shall arrive, if such impressment or detention hap- 
 pened on the high seas, or if the same happened within any foreign port, 
 then in the port in which the same happened, immediately to make a pro- 
 test, stating the manner of such impressment or detention, by whom made, 
 together with the name and place of residence of the person impressed or 
 detained ; distinguishing also, whether he was an American citizen ; and 
 if not, to what nation he belonged. And it shall be the duty of such 
 master, to transmit by post, or otherwise, every such protest made in a 
 foreign country, to the nearest consul or agent, or to the minister of the 
 United States resident in such country, if any such there be ; preserving 
 a duplicate of such protest, to be by him sent immediately after his arrival 
 within the United States, to the secretary of state, together with informa- 
 tion to Avhom the original protest was transmitted : And in case such pro- 
 test shall be made within the United States, or in any foreign country, in 
 which no consul, agent, or minister of the United States resides, the same
 
 550 APPENDIX. 
 
 shall, as soon thereafter as practicable, be transmitted by such master, by 
 post or otherwise, to the secretary of state. 
 
 Sec. 6. Atid be it further enacted, That a copy of this law be trans- 
 mitted by the secretary of state, to each of the ministers and consuls of 
 the United States, resident in foreign countries, and by the secretary of 
 the treasury, to the several collectors of the districts of the United States, 
 whose duty it is hereby declared to be, from time to time, to make known 
 the provisions of this law, to all masters of ships and vessels of the United 
 States entering, or clearing at their several offices. And the master of 
 every such ship or vessel shall, before he is admitted to an enti-y, by any 
 such collector, be required to declare on oath, whether any of the crew 
 of the ship or vessel under his command have been impressed or detained, 
 in the course of his voyage, and how far he has complied with the direc- 
 tions of this act : and every such master as shall wilfully neglect or refuse 
 to make the declarations herein required, or to perform the duties enjoined 
 by this act, shall forfeit and pay the sum of one hundred dollars. And it 
 is hereby declared to be the duty of every such collector to prosecute for 
 any forfeiture that may be incurred under this act. 
 
 Sec. 7. And he it further enacted, That the collector of every port of 
 entry in the United States shall send a list of the seamen registered under 
 this act, once every three months, to the secretary of state, together with 
 an account of such impressments or detentions, as shall appear, by the 
 protests of the masters, to have taken place. 
 
 Sec. 8. And be it further enacted, That the first, second, and third sec- 
 tions of this act shall be in force for one year, and from thence to the end 
 of the next session of Congress thereafter, and no longer. 
 
 ACT OF 1796, CHAPTER XLV. (1 U. S. Stats, at Large, 489). 
 An Act providing Passports /or the Ships and Vessels of the United States. 
 
 Section 1. Be it enacted by the Senate and House of Representatives 
 of the United States of America in Congress assembled, That it shall be 
 the duty of the secretary of state, to prepare a form, which, when approved 
 by the president, shall be deemed the form of a passport for ships and 
 vessels of the United States. 
 
 Sec. 2. And be it further enacted, That every ship and vessel of the 
 United States, going to any foreign country, shall, before she departs from 
 the United States, at the request of the master, be furnished by the col- 
 lector for the district, where such ship or vessel may be, with a passport 
 of the form prescribed and established, pursuant to the foregoing section ;
 
 APPENDIX. 551 
 
 for which passport, the master of such ship or vessel, shall pay to the said 
 collector, ten dollars, to be accounted for by him ; and in order to be enti- 
 tled to such passport, the master of every such ship or vessel shall be 
 bound with sufficient sureties, to the treasurer of the United States, in the 
 penalty of two thousand dollars, conditioned, that the said passport shall 
 not be applied to the use or protection of any other ship or vessel, than 
 the one described in the same ; and that, in case of the loss or sale of any 
 ship or vessel having such passport, the same shall, within three months, 
 be delivered up to the collector from whom it was received, if the loss or 
 sale take place within the United States ; or within six months, if the 
 same shall happen at any place nearer than the Cape of Good Hope ; and 
 within eighteen months, if at a more distant place. 
 
 Sec. 3. A7id be it further enacted, That there shall be paid on every 
 ship and vessel of the United States sailing or trading to any foreign 
 country, other than some port or place in America, for each and every 
 voyage, the sum of four dollars, to be received and accounted for, by the 
 collector, at the time of clearing outward, if such vessel be bound direct 
 to such foreign country, from any port of the United States, or at the 
 time of entry in the United States, if such ship or vessel shall have sailed 
 to such foreign country, from any port or place in America, other than 
 of the United States. 
 
 Sec. 4. And be it fxlrther enacted, That if any ship or vessel of the 
 United States, shall depart therefrom, after the first day of September 
 next, and shall be bound to any foreign country, other than to some port 
 or place in America, without such passport, the master of such ship or 
 vessel shall forfeit and pay the sum of two hundred dollars for every such 
 offence. 
 
 ACT OF 1797, CHAPTER VII. (1 U. S. Stats, at Large, 498). 
 
 An Act, in addition to an Act, intituled " An Act concerning the registering and recording of 
 Ships or Vessels," and to an Act, intituled " An Act for enrolling and licensing Ships 
 and Vessels employed in the Coasting Trade and Fisheries, and for regulating the same." 
 
 Be it enacted by the Senate and House of Representatives of the United 
 States of America in Congress assembled, That whenever it shall appear, 
 by satisfactory proof, to the secretary of the treasury, that any ship or 
 vessel hath been sold and transferred by process of law; and that the 
 register, certificate of enrolment, or license, as the case may be, of "Such 
 ship or vessel, is retained by the former owners, it shall be lawful for the 
 said secretary, to order and direct the collector of the district to which 
 such ship or vessel may belong, to grant a new registex', certificate of en-
 
 552 APPENDIX. 
 
 rolment, or license, as the case may be, on the owners, under such sale, 
 complying with such terms and conditions, as are, by law, required for 
 granting of such papers ; excepting only the delivering up of the former 
 certificate of registry, enrolment, or license, as the case may be : Provided 
 7ievertheless, that nothing in this act contained, shall be construed to 
 remove the liability of any person or persons to any penalty for not sur- 
 rendering up the papers, belonging to any ship or vessel, on a transfer or 
 sale of the same. 
 
 ACT OF 1797, CHAPTER V. (1 U. S. Stats, at Large, 523). 
 
 An Act in addition to an Act, intituled " An Act concerning the registering and recording of 
 
 Ships and Vessels." 
 
 Be it enacted hy the Senate and House of Representatives of the United 
 States of America in Congress assembled, That no ship or vessel which 
 has been, or shall be registered, pursuant to any law of the United States, 
 and which hereafter shall be seized, or captured and condemned, under 
 the authority of any foreign power, or that shall by sale become the prop- 
 erty of a foreigner or foreigners, shall, after the passing of this act, be 
 entitled to, or capable of receiving, a new register, notwithstanding such 
 ship or vessel should afterwards become American property ; but that all 
 such ships and vessels shall be taken and considered, to all intents and 
 purposes, as foreign vessels : Provided, That nothing in this act contained, 
 shall extend to, or be construed to aftect the person or persons owning 
 any ship or vessel, at the time of the seizure, or capture of the same, or 
 shall prevent such owner, in case he regain a property in such ship or 
 vessel, so condemned, by purchase or otherwise, from claiming and receiv- 
 ing a new register for the same, as he might or could have done, if this 
 act had not been passed. 
 
 ACT OF 1798, CHAPTER LXXVH. (1 U. S. Stats, at Large, 605). 
 
 An Act for the relief of sick and disabled Seamen. 
 
 Section 1. Be it enacted hy the Senate and House of Representatives 
 of the United States of America in Congress assembled. That from and 
 after» the tirst day of September next, the master or owner of every ship 
 or vessel of the United States, arriving from a foreign port into any port 
 of the United States, shall, before such ship or vessel shall be admitted to 
 an entry, render to the collector a true account of the number of seamen.
 
 APPENDIX. 558 
 
 that shall have been employed on board such vessel since she was last 
 entered at any port in the United States, — and shall pay to the said col- 
 lector, at the rate of twenty cents per month for every seaman so em- 
 ployed ; which sum he is hereby authorized to retain out of the wages of 
 such seamen. 
 
 Sec. 2. And be itfartlier enacted, That from and after the first day of 
 September next, no collector shall grant to any ship or vessel whose en- 
 rolment or license for carrying on the coasting trade has expired, a new 
 enrolment or license before the master of such ship or vessel shall first 
 render a true account to the collector, of the number of seamen, and the 
 time fhey have severally been employed on board such ship or vessel, 
 during the continuance of the license which has sg expired, and pay to 
 such collector twenty cents per month for every month such seamen have 
 been severally employed, as aforesaid ; which sum the said master is here- 
 by authorized to retain out of the wages of such seamen. And if any 
 such master shall render a false account of the number of men, and the 
 length of time they have severally been employed, as is herein required, 
 he shall forfeit and pay one hundred dollars. 
 
 Sec. 3. And he it farther enacted, That it shall be the duty of the sev- 
 eral collectors to make a quarterly return of the sums collected by them, 
 respectively, by virtue of this act, to the secretary of the treasury ; and 
 the President of the United States is hereby authorized, out of the same, 
 to provide for the temporary relief and maintenance of sick or disabled 
 seamen, in the hospitals or other proper institutions now established in 
 the several ports of the United States, or, in })orts where no such institu- 
 tions exist, then in such other manner as he shall direct : Provided. 
 that the moneys collected in any one district, shall be expended within the 
 same. 
 
 Sec. 4. And be it further enacted, That if any surplus shall remain of 
 the moneys to be collected by virtue of this act, after defraying the expense 
 of such temporary relief and support, that the same, together with such 
 private donations as may be made for that purpose (which the president 
 is hereby authorized to i-eceive) shall be invested in the stock of the 
 United States, under the direction of the president ; and when, in his 
 opinion, a sufficient fund shall be accumulated, he is hereby authorized to 
 purchase or I'eceive cessions or donations of ground or buildings, in the 
 name of the United States, and to cause buildings, when necessary, 
 to be erected as hospitals for the accommodation of sick and disabled 
 seamen. 
 
 Sec. 5. And he it further enacted, Tiiat the President of the United 
 States be, and he is hereby authorized to nominate and appoint, in such 
 ports of the United States, as he may think proper, one or more persons. 
 
 VOL. I. 47
 
 554 APPENDIX. 
 
 to be called directors of the marine hospital of the United States, whose 
 duty it shall be to direct the expenditure of the fund assigned for their 
 respective ports, according to the third section of this act ; to provide for 
 the accommodation of sick and disabled seamen, under such general in- 
 structions as shall be given by the President of the United States, for 
 that purpose, and also subject to the like general instructions, to direct and 
 govern such hospitals as the president may direct to be built in the respec- 
 tive ports : and that the said directors shall hold their offices during the 
 pleasure of the president, who is authorized to fill up all vacancies that 
 may be occasioned by the death or removal of any of the persons so to be 
 appointed. And the said directors shall render an account of the moneys 
 received and expended by them, once in every quarter of a year, to the 
 secretary of the ti-easury, or such other person as the president shall 
 direct ; but no other allowance or compensation shall be made to the said 
 directors, except the payment of such expenses as they may incur in the 
 actual discharge of the duties required by this act. 
 
 ACT OF 1799, CHAPTER XXXVI. (1 U. S. Stats, at Large, 729). 
 An Act ill addition to "An Act for ^le relief of sick and disabled Seamen." 
 
 Section 1. Be it enacted hy the Senate and House of Representatives 
 of the United States of America in Congress assembled, That the President 
 of the United States shall be, and he hereby is authorized to direct the 
 expenditure of any moneys which have been or shall be collected by virtue 
 of an act, intituled " An act for the relief of sick and disabled seamen," 
 to be made within the State wherein the same shall have been collected, 
 or within the State next adjoining thereto, excepting what may be col- 
 lected in the States of New Hampshire, Massachusetts, Rhode Island, 
 and Connecticut ; any thing in the said act contained to the contrary 
 thereof, notwithstanding. 
 
 Sec. 2. And he it farther enacted, That the secretary of the navy shall 
 be, and he hereby is authorized and directed to deduct, after the first day 
 of September next, from the pay thereafter to become due, of the officers, 
 seamen, and marines of the navy of the United States, at the rate of 
 twenty cents per month, for every such officer, seaman, and marine, and 
 to pay the same quarter annually to the secretary of the treasury, to be 
 applied to the same purposes, as the money collected by virtue of the 
 above-mentioned act is appropriated. 
 
 Sec. 3. And be it further enacted, That the officers, seamen, and ma- 
 rines of the navy of the United States, shall be entitled to receive the
 
 APPENDIX. 555 
 
 same benefits and advantages, as by the act above mentioned are provided 
 for the relief of the sick and disabled seamen of the merchant vessels of 
 the United States. 
 
 ACT OF 1802, CHAPTER LI. (2 U. S. Stats, at Large, 192). 
 
 An Act to amend an Act intituled " An Act for the relief of sich and disabled Seamen," and 
 
 for other purposes. 
 
 Section 1. Be it enacted hy the Senate and House of Representatives 
 of the United States of America, in Congress assembled, That the moneys 
 heretofore collected in pursuance of the several acts " for tlie relief of 
 sick and disabled seamen," and at present unexpended, together with the 
 moneys hereafter to be collected by authority of the before-mentioned 
 acts, shall constitute a general fund, which the President of the United 
 States shall use and employ as circumstances shall require, for the 
 benefit and convenience of sick and disabled American seamen : Pro- 
 vided, that the sura of fifteen thousand dollars be, and the same is hereby 
 appropriated for the erection of an hospital in the district of Massachu- 
 setts. 
 
 Sec. 2. And he it further enacted, That it shall be lawful for the 
 President of the United States to cause such measures to be taken as, 
 in his opinion, may be expedient for pi'oviding convenient accommoda- 
 tions, medical assistance, necessary attendance, and supplies for the relief 
 of sick or disabled seamen of the United States, who may be at or near 
 the port of New- Orleans, in case the same can be done with the assent of 
 the government having jurisdiction over the port ; and for this purpose, 
 to establish such regulations, and to authorize the employment of such 
 persons as he may judge proper ; and that for defraying the expense 
 thereof, a sum not exceeding three thousand dollars be paid out of any 
 moneys arising from the said fund not otherwise appropriated. 
 
 Sec. 3. And he it further enacted. That from and after the thirtieth 
 day of June next, the master of every boat, raft, or flat, belonging to 
 any citizen of the United States, which shall go down the Mississippi 
 with intention to proceed to New Orleans, shall, on his arrival at Fort 
 Adams, render to the collector or naval officer thereof, a true account of 
 the number of persons employed on board such boat, raft, or flat, and the 
 time that each person has been so employed, and shall pay to the said 
 collector or naval officer at tlie rate of twenty cents per month, for every 
 person so employed, which sum, he is hereby authorized to retain out of 
 the wages of such person : and the said collector or naval officer shall 
 not give a clearance for such boat, raft, or flat, to proceed on her voyage 
 to New Orleans, until an account be rendered to him of the number of
 
 -356 APPENDIX. 
 
 l)ersons employed on board such boat, raft, or flat, and the money paid to 
 him by the master or owner thereof: and if any such ma^lter sliall render 
 a false account of the number of persons, and the length of time they 
 have severally been employed, as is herein required, he shall forfeit and 
 pay fifty dollars, which shall be applied to, and shall make a part of, the 
 said general fund for the purposes of this act : Provided, that all persons 
 employed in navigating any such boat, raft, or flat, shall be considered as 
 seamen of the United States, and entitled to tjie relief extended by law 
 to sick and disabled seamen. 
 
 Sec. 4. And be it further enacted, That the President of the United 
 States be, and he is hereby authorized to nominate and appoint for the 
 port of New Orleans, a fit person to be director of the marine hospital of 
 the United States, whose duties shall be in all instances the same as the 
 directors of the marine hospitals of the United States, as directed and 
 required by the act, intituled " An act for the relief of sick and disabled 
 seamen." [Act of July 16, 1798, chap. 76.] 
 
 Sec. 5. And be it further enacted. That each and every director of 
 the marine hospitals within the United States, shall, if it can with con- 
 venience be done, admit into the hospital of which he is director, sick 
 foreio'n seamen, on the application of the master or commander of any 
 foreign vessel to which such sick seamen may belong ; and each seaman 
 so admitted shall be subject to a charge of seventy-five cents per day for 
 each day he may remain in the hospital, the payment of which the master 
 or commander of such foreign vessel shall make to the collector of the 
 district in which such hospital is situated : and the collector shall not 
 ii-rant a clearance to any foreign vessel, until the money due from such 
 master or commander, in manner and form aforesaid, shall be paid ; and 
 the director of each hospital is hereby directed, under the penalty of fifty 
 dollars, to make out the accounts against each foreign seaman that may 
 be placed in the hospital, under his direction, and render the same to the 
 collector. 
 
 Sec. 6. And be it further enacted. That the collectors shall pay the 
 money collected, by virtue of this and the act to which this is an amend- 
 ment, into the treasury of the United States, and be accountable therefor, 
 and receive the same commission thereon, as for other money by them 
 collected. 
 
 Sec. 7. And be it further enacted, That each and every director of the 
 marine hospitals shall be accountable at the treasury of the United States 
 for the money by them received in the same manner as other receivers of 
 public money, and for the sums by them expended shall be allowed a 
 commission at the rate of one per cent.
 
 APPENDIX. 557 
 
 ACT OF 1800, CHAPTER XIV. (2 U. S. Stats, at Large, 16). 
 An Act providing /or Salvage in cases of Recapture. 
 
 Section 1. Be it enacted hy the Senate and House of liepresentatives 
 of the United States of America in Congress assembled, That -vvhcn any 
 vessel other than a vessel of war or privateer, or when any goods which 
 shall hereafter be taken as prize by any vessel, acting under authority 
 from the government of the United States, shall appear to have before 
 belonged to any person or persons, resident within or untfer the protec- 
 tion of the United States, and to have been taken by an enemy of the 
 United States, or under authority, or pretence of authority, from any 
 prince, government, or State, against which the United States have au- 
 thorized, or shall authorize, defence or reprisals, such vessel or goods not 
 having been condemned as prize by competent authority before the 
 recapture thereof, the same shall be restored to the former owner or 
 owners thereof, he or they paying for and in lieu of salvage, if retaken 
 by a public vessel of the United States, one eighth part, and if retaken by 
 a private vessel of the United States, one sixth part, of the true value of 
 the vessel or goods so to be restored, allowing and excepting all imposts 
 and public duties to which the same may be liable. And if the vessel so 
 retaken shall appear to have been set forth and armed as a vessel of war, 
 before such capture or afterwards, and before the retaking thereof as 
 aforesaid, the former owner or owners, on the restoration thereof, shall 
 be adjudged to pay for and in lieu of salvage, one moiety of the true 
 value of such vessel of war, or privateer. 
 
 Sec. 2. And be it further enacted, That when any vessel or goods, 
 which shall hereafter be taken as prize, by any vessel acting under au- 
 thority from the government of the United States, shall appear to have 
 before belonged to the United States, and to have been taken by an 
 enemy of the United States, or under authority, or pretence of authority 
 from any prince, government, or State, against which the United States 
 have authorized, or shall authorize, defence or reprisals, such public ves- 
 sel not having been condemned as prize by competent authority before 
 the recapture thereof, the same shall be restored to the United States. 
 And for and in lieu of salvage, there shall be paid from the treasury of 
 the United States, pursuant to the final decree which shall be made in 
 such case by any court of the United States, having competent jurisdic- 
 tion thereof, to the parties who shall be tliereby entitled to receive the 
 same, for the recapture as aforesaid, of an unarmed vessel, or any goods 
 therein, one sixth part of the true value thereof, when made by a private 
 vessel of the United States, and one twelfth part of such value when the 
 
 47*
 
 558 APPENDIX. 
 
 recapture shall be made by a public armed vessel of the United States ; 
 and for the recapture as aforesaid of a public armed vessel, or any goods 
 therein, one moiety of the true value thereof, when made by a private 
 vessel of the United States, and one fourth part of such value, when 
 such recapture shall be made by a public armed vessel of the United 
 Slates. 
 
 Sec. 3. And he it further enacted, That when any vessel oi- goods 
 which shall be taken as prize, as aforesaid, shall appear to have before 
 belonged to any person or persons permanently resident within the ter- 
 ritory, and uncler the protection of any foreign prince, government, or 
 State, in amity with the United States, and to have been taken by an 
 enemy of the United States, or by authority or pretence- of authority 
 from any prince, government, or State, against which the United States 
 have authorized, or shall authorize, defence or reprisals, then such vessel 
 or goods shall .be adjudged to be restoi'ed to the former owner or owners 
 thereof, he or they paying for and in lieu of salvage, such proportion of 
 the true value of the vessel or goods so to be restoi'ed, as by the law or 
 usage of such prince, government, or State, within whose territory such 
 former owner or owners shall be so resident, shall be required on the 
 restoration of any vessel or goods of a citizen of the United wStates, 
 under like circumstances of recapture, made by the authority of such 
 foreign prince, government, or State ; and where no such law or usage 
 shall be known, the same salvage shall be allowed as is provided by the 
 first section of this act : Provided, that no such vessel or goods shall be 
 adjudged to be restored to such former owner or owners, in any case 
 where the same shall have been, before the recapture thereof, condemned 
 as prize by competent authority, nor in any case where by the law or 
 usage of the prince, government, or State, within whose territory such 
 former owner or owners shall be resident as aforesaid, the vessel or 
 goods of a citizen of the United States, under like circumstances of re- 
 capture, would not be restored to such citizen of the United States : 
 Provided also, that nothing herein shall be construed to contravene or 
 alter the terms of restoration in cases of recapture, which are or shall 
 be agreed on in any treaty between the United States, and any foreign 
 prince, government, or State. 
 
 Sec. 4. And be it further enacted. That all sums of money Avhich 
 may be paid for salvage, as aforesaid, when accruing to any public armed 
 vessel, shall be divided to and among the commanders, officers, and crew 
 thereof, in such proportions as are or may be provided by law, respecting 
 the distribution of prize money : and when accruing to any private armed 
 vessel, shall be distributed to and among the owners and company con- 
 cerned in such recapture, according to their agreements, if any such
 
 APPENDIX. 559 
 
 there be; and in case there be no such agreement, then to and among 
 such persons, and in such proportions, as the court having jurisdiction 
 thereof shall appoint. 
 
 Sec. 5. And be it further enacted, That such parts of any acts of 
 Congress of the United States, as respect the salvage to be allowed in 
 cases of recapture, shall be, and are hereby repealed, except as to cases 
 of recapture made before the passing of this act. 
 
 ACT OF 1803, CHArTEU IX. (2 U. S. Stats, at Large, 20.3). 
 
 An Act supplementary to the "Act concerning Consuls ami Vice-Consuh, and for the further 
 protection of American Seamen." 
 
 Section 1. JSe it enacted hj the Senate and House of Representatives 
 of the United States of America in Congress assembled, That before a 
 clearance be granted to any vessel bound on a foreign voyage, the master 
 thereof shall deliver to the collector of the customs, a list, containing the 
 names, places of birth and residence, and a description of the persons 
 who compose his ship's company, to which list the oath or affirmation of 
 the captain shall be annexed, that the said list contains the names of his 
 crew, together with the places of their birth and residence, as far as he 
 can ascertain them, and the said collector sliall deliver him a certified copy 
 thereof, for which the collector shall be entitled to receive the sum of 
 twenty-five cents ; and the said master shall moreover enter into bond 
 with sufficient security, in the sum of four hundred dollars, that he sliall 
 exliibit the aforesaid certified copy of the list to the first boarding officer, 
 at the first port in the United States, at which he shall arrive on his return 
 thereto, and then and there also produce the persons named therein, to the 
 said boarding officer, whose duty it shall be to examine the men with such 
 list, and to report the same to the collector, and it shall be the duty of the 
 collector at the said port of arrival (where tlie same is different from the 
 port from which the vessel originally sailed), to transmit a copy of the 
 list so reported to him, to the collector of the port from which said vessel 
 originally sailed : Provided, that the said bond shall not be forfeited on 
 account of the said master not producing to the first boarding officer, as 
 aforesaid, any of the persons contained in the said list, Avho may be dis- 
 charged in a foreign country with the consent of tlic consul, vice-consul, 
 commercial agent, or vice-commeroial agent there residing, signified in 
 ^vritiiig, under his hand and official seal, to be produced to the collector 
 with the othei' persons composing the crew as aforesaid ; nor on account 
 of any such person dying or absconding, or being forcibly impressed into
 
 560 APPENDIX. 
 
 other service, of wliich satisfactory proof shall be then also exhibited to 
 the collector. 
 
 Sec. 2. And be it further enacted, That it shall be the duty of every 
 master or commander of a ship or vessel, belonging to citizens of the 
 United States, Avho shall sail from any port of the United States, after 
 the first day of May next, on his arrival at a foreign port, to deposit his 
 register, sea letter, and Mediterranean passport with the consul, vice-con- 
 sul, commercial agent, or vice-commercial agent (if any there be at such 
 port) ; that in case of refusal or neglect of the said master or commander, 
 to deposit the said papers as aforesaid, he shall forfeit and pay five hun- 
 dred dollars, to be recovered by the said consul, vice-consul, commercial 
 agent, or vice-commercial agent, in his own name, for the benefit of the 
 United States, in any court of competent jurisdiction ; and it. shall be the 
 duty of such consul, vice-consul, commercial agent, or vice-commercial 
 agent, on such master or commander producing to him a clearance from 
 the proper ofl&cer of the port, where his ship or vessel may be, to deliver 
 to the said master or commander all of his said papers : Provided, such 
 master or commander shall have complied with the provisions contained 
 in this act, and those of the act to which this is a supplement. 
 
 Sec. 3. And be it further enacted, That whenever a ship or vessel be- 
 longing to a citizen of the United States, shall be sold in a foreign coun- 
 try, and her company discharged, or when a seaman or mariner, a citizen 
 of the United States, shall, with his own consent, be discharged in a 
 foreign country, it shall be the duty of the master or commander to pro- 
 duce to the consul, vice-consul, commercial agent, or vice-commercial 
 awent, the list of his ship's company, certified as aforesaid ; and to pay 
 to such consul, vice-consul, commercial agent, or vice-commercial agent, 
 for every seaman or mariner so discharged, being designated on such list 
 as a citizen of the United States, three months pay, over and above the 
 wao^es which may then be due to such mariner or seaman, two thirds 
 thereof to be paid by such consul, or commercial agent, to each seaman 
 or mariner so discharged, upon his engagement on board of any vessel to 
 return to the United States, and the other remaining third to be retained 
 for the purpose of creating a fund for the payment of the passages of sea- 
 men or mariners, citizens of the United States, who may be desirous of 
 returning to the United States^ and for the maintenance of American sea- 
 men who may be destitute, and may be in such foreign port, and the 
 several sums retained for such fund shall be accounted for with the treas- 
 ury every six months by the persons receiving the same. 
 
 Sec. 4. And be it further enacted, That it shall be the duty of the con- 
 suls, vice-consuls, commercial agents, vice-commercial agents of the United 
 States, from time to time, to provide for the mariners and seamen of the
 
 APPENDIX. 561 
 
 United States, who may be found destitute within their districts respec- 
 tively, sufficient subsistence and passages to some port in the United 
 States, in the most reasonable manner, at the expense of the United 
 States, subject to such in^structions as the secretary of state shall give ; 
 and that all masters and commanders of vessels belonging to citizens of 
 the United States, and bound to some port of the same, are hereby 
 required and enjoined to take sucli mariners or seamen on board of their 
 ships or vessels, at the request of the said consuls, vice-consuls, commer- 
 cial agents, or vice-commercial agents respectively, and to transport them 
 to the port in the United States to which such ships or vessels may be 
 bound, on such terms, not exceeding ten dollars for each person, as may 
 be agreed between the said master and consul, or commercial agent. 
 And the said mariners or seamen shall, if flble, be bound to do duty on 
 board such ships or vessels according to their several abilities : Provided, 
 that no master or captain of any ship or vessel shall be obliged to take a 
 greater number than two men to every one hundred tons burden of the 
 said ship or vessel, on any one voyage ; and if any such captain or master 
 shall refuse the same on the rc(iucst or order of the consul, vice-consul, 
 commercial agent, or vice-commercial agent, such captain or master shall 
 forfeit and pay the sum of one hundred dollars for each mariner or sea- 
 man so refused, to be recovered for the benefit of the United States in 
 any court of competent jurisdiction. And the certificate of any such con- 
 sul or commercial agent, given under his hand and official seal, shall be 
 prima facie evidence of such refusal in any court of law having jurisdic- 
 tion for the recovery of the penalty aforesaid. 
 
 Sec. 5. And be it further enacted, Tliat the seventh and eighth sections 
 of the act, intituled "An act concerning consuls and vice-consuls," (1792, 
 c. 24,) be and the same are hereby repealed ; and that the secretary of 
 state be authorized to reimburse the consuls, vice-consuls, commercial 
 agents, or vice-commercial agents, such reasonable sums as they may 
 heretofore have advanced for the relief of seamen, though the same should 
 exceed the rate of twelve cents a man per diem. 
 
 Sec. G. And he it further .enacted, That it shall and may be lawful for 
 every consul, vice-consul, commercial agent, and vice-commercial agent of 
 the United States, to take and receive for every certificate of discharge of 
 any seaman or mariner in a foreign port fifty cents ; and for commission 
 on paying and receiving the amount of wages payable on the discharge of 
 seamen in foreign ports, two and a half per centum. 
 
 Sec. 7. And he itfurtlter enacted, That if any consul, vice-consul, com- 
 mercial agent, or vice-commercial agent, shall falsely and knowingly cer- 
 tify, that property belonging to foreigners is property belonging to citizens 
 of the United States, he shall, on conviction thereof, in au}^ court of com- 
 petent jurisdiction, forfeit and pay a fine not exceeding ten thousand dol-
 
 562 APPENDIX. 
 
 lars, at the discretion of the court, and be imprisoned for any term not 
 exceeding three years. 
 
 Sec. 8. And be it further enacted, That if any consul, vice-consul, com- 
 mercial agent, or vice-commercial agent, shall grant a passport or other 
 paj^er certifying that any alien, knowing him or her to be such, is a citi- 
 zen of the United States, he sliall, on conviction thereof, in any court of 
 competent jurisdiction, forfeit and pay a fine not exceeding one thousand 
 dollars. 
 
 ACT OF 1803, CHAPTER XVI. (2 U. S. Stats, at Large, 208). 
 
 An Act supplementary to the Act, intituled " An Act providing passports Jbr the Ships and 
 Vessels of the United States." 
 
 Section 1. Be it enacted by the Senate and House of Representatives 
 of the United States of Amei'ica in Congress assembled, That every un- 
 registered ship or vessel owned by a citizen or citizens of the United 
 States, and sailing with a sea-letter, going to any foreign country, shall, 
 before she departs from the United States, at the request of the master, 
 be furnished by the collector of the district where such vessel may be, 
 with" a passport of the form prescribed and established by the act to which 
 this is a supplement, for which the master shall pay to the collector ten 
 dollars, and be subject to the rules and conditions prescribed in the said 
 act, for ships and vessels of the United States. 
 
 Sec. 2. A7id be it further enacted, That there shall be paid on every 
 such unregistered ship or vessel, sailing or trading to any foreign country, 
 other than some port or place in America, for each and every voyage, the 
 same sum at the time of clearing outwards, to be received and accounted 
 for in the same manner as is by said act required in cases of ships and 
 vessels of the United States. 
 
 ACT OF 1803, CHAPTER XVIII. (2 U. S. Stats, at Large, 209). 
 
 An Act in addition to the Act, intituled " An Act con'cernimj the registering and recording of 
 Ships and Vessels of the United States," and to the Act, intituled " An Act to regulate the 
 collection of duties on Imports and Tonnage." 
 
 Section 1. Be it enacted by the Senate and House of Representatives 
 of the United States of America in Congress assembled, That if any per- 
 son shall knowingly make, utter, or publish any false sea-letter, Mediter- 
 ranean passport, or certificate of registry, or shall knowingly avail him- 
 self of any such Mediterranean passport, sea-letter, or certificate of regis-
 
 APPENDIX. 563 
 
 try, he shall forfeit and pay a sftn not exceeding five thousand dollars, to 
 be recovered by action of debt, in the name of the United States, in any 
 court of competent jurisdiction ; and if an officer of the United States, 
 he shall for ever thereafter be rendered incapable of holding any office 
 of trust or profit, under the authority of the United States. 
 
 Sec. 2. And be it further enacted, That it shall be the duty of the 
 comptroller of the treasury, to cause to be provided, blank certificates of 
 registry, with such water and other secret marks as he may direct, which 
 marks shall be made known only to the collectors and their deputies, and 
 to the consuls or commercial agents of the United States ; and from and 
 after the thirty-first day of December next, no certificate of registry shall 
 be issued, except such as shall have been provided and marked as afore- 
 said ; and the ships or vessels of the United States, which shall have been 
 duly registered as such, shall be entitled to new certificates of registry 
 (gratis) in exchange for their old certificates of registry : and it shall be 
 the duty of the respective collectors, on the departure of any such ship 
 or vessel, after the said thirty-first day of December, from the district to 
 which such ship or vessel shall belong, to issue a new certificate accord- 
 ingly, and to retain and deface the former certificate. 
 
 Sec. 3. A7id he it further enacted, That when any ship or vessel, which 
 has been, or which shall be registered pursuant to any law of the United 
 States, shall, whilst such ship or vessel is without the limits of the United 
 States, be sold or transferred in whole or in part to a citizen or citizens of 
 the said States, such ship or vessel, on her first arrival in the United States 
 thereafter, shall be entitled to all the privileges and benefits of a ship or 
 vessel of the United States : Provided, that all the requisites of law, in 
 order to the registry of ships or vessels, shall be complied with, and a 
 new certificate of registry obtained for such ship or vessel, within three 
 days from the time at which the master or other person having the charge 
 or command of such ship or vessel, is required to make his final report 
 upon her first arrival afterwards as aforesaid, agreeably to the thirtieth 
 section of the act, passed on the second day of March, one thousand seven 
 hundred and ninety-nine, intituled "An act to regulate the collection of 
 duties on imports and tonnage." And it shall be lawful to pay to the col- 
 lector of the district within which such ship or vessel may aiTive as afore- 
 said, the duties imposed by law on tlie tonnage of such ship or vessel, at 
 any time within three days from the time at Avhich the master or other 
 person having the charge oi- command of such ship or vessel, is required 
 to make his final report as afoi-esaid, any thing to the contrary in any for- 
 mer law notwithstanding : Provided always, that nothing herein contained 
 shall be construed to repeal, or in anywise change the provisions, restric- 
 tions, or limitations of any former act or act*;, excepting so far as the same 
 shall be repugnant to the provisions of this act.
 
 564 APPENDIX. 
 
 Sec. 4. And be it further enacted, TliSt the power vested in the secre- 
 tary of the treasury, to remove disabilities incurred under the act to which 
 this is a supplement, and under the act, intituled " An act for enrolling 
 and licensing ships or vessels, to be employed in the coasting trade and 
 fisheries, and for regulating the same," shall extend to the remission of 
 any foreign duties, which shall have been or shall be incurred by reason 
 of such disabilities. 
 
 ACT OF 1804, CHAPTEU LI. (2 U. S. Stats, at Large, 296). 
 
 An Act to repeal a part of the Act intituled "An Act supplementary to the Act concerning 
 Consuls and Vice-Consuls, and for the farther protection of American Seamen." 
 
 Section 1. Be it enacted hj the Senate and House of Representatives 
 of the United States of America in Congress assembled, That the ninth sec- 
 tion of the act, intituled " An act supplementary to the act concerning 
 consuls and vice-consuls, and for the further protection of American sea- 
 men," passed the twenty-eighth of February, one thousand eight hundred 
 and three, be, and the same is hereby repealed. 
 
 Sec. 2. And be it further enacted, That all powers of attorney for the 
 transfer of any stock of the United States, or for the receij)t of interest 
 thereon, executed in a foreign country, since the thirtieth day of June one 
 thousand eight hundred and three, according to the forms in use at the 
 treasury of the United States prior to the said thirtieth day of June, one 
 thousand eight hundred and three, shall be valid to all intents and pur- 
 poses : any provision in the aforesaid section hereby repealed to the con- 
 trary notwithstanding. 
 
 ACT OF 1804, CHAPTER LII. (2 U. S. Stats, at Large, 296). 
 
 An Act to amend the Act intituled " An Act concerning the registering and recording of 
 
 Ships and Vessels." 
 
 Section 1. Be it enacted by the Senate and House of Representatives 
 of the United States of America in Congress assembled, That no ship or 
 vessel shall be entitled to be registered as a ship or vessel of the United 
 States, or if registered, to the benefits thereof, if owned in whole or in 
 part by any person naturalized in the United States, and residing for more 
 than one year in the country from which he originated, or for more than 
 two years in any foreign country, unless such person be in the capacity of 
 a consul or other public agent of the United States : Provided, that noth- 
 ino- herein contained shall be construed to prevent the registering anew
 
 APPENDIX. 565 
 
 of any ship or vessel before registered, in case of a bond fide sale thereof 
 to any citizen or citizens resident in the United States : And provided 
 also, that satisfactory proof of the citizenship of the person on whose 
 account a vessel may be pin-chased, shall be first exhibited to the collector, 
 before a new register shall be granted for such vessel. 
 
 Sec. 2. And be it further enacted, That the proviso in the act, intituled 
 " An act in addition to an act, intituled An act concerning the registering 
 and recording of ships and vessels," passed the twenty-seventh of June, 
 one thousand seven hundred and ninety-seven, shall be taken and deemed 
 to extend to the executors or administrators of the owner or owners of 
 vessels, in the said proviso described. 
 
 ACT OF 1805, CHAPTER XXVIII. (2 U. S. Stats, at Large, 330). 
 
 An Act to amend the Act, intituled " An Act for the (jovernnient and regulation of Seamen 
 in the Merchants' Service." 
 
 Be it enacted by the Senate and House of Representatives of the United 
 States of America in Congress assembled, That all the provisions, regula- 
 tions, and penalties which are contained in the eighth section of the act, 
 intituled " An act for the government and regulation of seamen in the 
 merchants' service," so far as relates to a chest of medicines to be pro- 
 vided for vessels of one hundred and fifty tons burden and upwards, 
 shall be extended to all merchant vessels of the burden of seventy-five 
 tons, or upwards, navigated with six persons or more, in the whole, 
 and bound from the United States to any port or ports in the West 
 Indies. 
 
 ACT OF 1810, CHAPTER XIX. (2 U. S. Stats, at Large, 568). 
 An Act to prevent the issuing of Sea Letters except tocertain Vessels. 
 
 Be it enacted by the Senate and House of Representatives of the United 
 States of America in Congress assembled. That from and after the thirtieth 
 of June next, no sea letter or other document certifying or proving any 
 ship or vessel to be the property of a citizen or citizens of the United 
 States, shall ti|| issued except to ships or vessels duly registered, or 
 enrolled and licensed as ships or vessels of the United States, or to ves- 
 sels which at that time shall be w^holly owned by citizens of the United 
 States, and furnished with or entitled to sea letters or other custom-house 
 documents, any law or laws heretofoi'e passed to the contrary notwith- 
 
 VOL. I. 48
 
 566 APPENDIX. 
 
 standing : Provided nevertheless, that no sea letter shall be issued to any 
 vessel which shall not at this time be furnished or entitled to a sea letter, 
 unless such vessel shall return to some port or place in the United 
 States or territories thereof on or before the said thirtieth day of June 
 next : Provided nevertheless, that no sea letter or other document, certify- 
 ing or proving any ship or vessel to be the property of a citizen or citi- 
 zens of the United States, shall be issued to any vessel now abi'oad, 
 which shall not at this time be furnished or entitled to a sea letter, 
 unless such vessel shall arrive at some port or place in the United 
 States or territories thereof, on or before the said thirtieth day of June 
 next ; and provided that nothing herein contained shall be construed to 
 operate against any such vessel or vessels that now are, or may be, prior 
 to the said thirtieth of June, detained abroad by the authority of any 
 foreign power. 
 
 ACT OF 1811, CHAPTER XXVI. (2 U. S. Stats, at Large, 650). 
 A)i Act establishing Nainj Hospitals. 
 
 Section 1. Be it enacted by the Senate and House of Representatives 
 of the United States of America in Gp7igress assembled, That the money 
 hereafter collected by virtue of the act, intituled " An act in addi- 
 tion to an act for the relief of sick and disabled seamen," shall be paid 
 to the secretary of the navy, the secretary of the treasury, and the sec- 
 retary of war, for the time being, who are hereby appointed a board of 
 commissioners, by the name and style of commissioners of navy hospi- 
 tals, which, together with the sura of fifty thousand dollars hereby appro- 
 priated out of the unexpended balance of the marine hospital fund, to 
 be paid to the commissioners aforesaid, shall constitute a fund for navy 
 hospitals. 
 
 Sec. 2. And be it further enacted, That all fines imposed on navy offi- 
 cers, seamen, and marines, shall be paid to the commissioners of navy 
 hospitals. 
 
 Sec. 3. And be it further enacted, That the commissioners of navy 
 hospitals be and they are hereby authorized and required to procure 
 at a suitable place or places proper sites for navy hospitals, and if the 
 necessary buildings are not procured with the site, to cause such to be 
 erected, having due regard to economy, and giving preference to such 
 plans as with most convenience and least cost will adimt of subsequent 
 additions, as the funds will permit and circumstances :^quir? ; and the 
 commissioners are required at one of the establishments, to provide a 
 permanent asylum for disabled and decrepid navy ofiicers, seamen, and 
 marines.
 
 APPENDIX. 567 
 
 Sec. 4. And he it /toother enacted, That the secretary of the navy be 
 authorized and requiiTd to prepare the necessary rules and regulations 
 for the government of the institution, and report the same to the next 
 session of congress. 
 
 Sec. 5. A^id be it further enacted, That when any navy officer, sea- 
 man, or marine, shall be admitted into a navy hospital, that the institu- 
 tion shall be allowed one i-ation per day during his continuance therein, 
 to be deducted from the account of the United States with such officer, 
 seaman, or marine ; and in like manner, when any officer, seaman, or 
 marine, entitled to a pension, shall be admitted into a navy hospital, 
 such pension during his continuance therein shall be paid to the com- 
 missioners of the navy hospitals, and deducted from the account of such 
 pensioner. 
 
 ACT OF 1811, CHAPTER XXVIII. (2 U. S. Stats, at Large, 651). 
 
 An Act in addition to the Act, intituled "An Act supplementary to the Act concerning Con- 
 suls and Vice- Consuls," and for the further protection of American Seamen, 
 
 Be it enacted by the Senate and House of Representatives of the United 
 States of America in Congress assembled. That in all cases where dis- 
 tressed mariners and seamen of the United States have been transported 
 from foreign ports where there was no consul, vice-consul, commercial 
 agent, or vice-commercial agent of the United States, to ports of the 
 United States ; and in all cases where they shall hereafter be so trans- 
 ported, there shall be allowed to the master or owner of each vessel, in 
 which they shall or may have been transported, such reasonable compen- 
 sation, in addition to the allowance now fixed by law, as shall be deemed 
 equitable by the comptroller of the treasury. 
 
 ACT OF 1812, CHAPTER XL. (2 U. S. Stats, at Large, G94). 
 
 An Act respecting the Enrolling and Licensing of Steamboats. 
 
 Section 1. Be it enacted by the Senate and House of Representcdives 
 of the United States of America in Congress asse^nhled, That from and 
 after the passing of this act, a steamboat employed, or intended to be 
 employed only in a river or bay of the United States, owned wholly or 
 in part by an alien, resident within the United States, may, and shall be 
 enrolled and licensed, as if the same belonged to a citizen of the United 
 States, according to, and subject to all the conditions, limitations, and
 
 568 APPENDIX. 
 
 provisions contained in the act, intituled " An act for enrolling and 
 licensing ships or vessels to be employed in the coasting trade and fish- 
 eries, and for regulating the same," except that, in such case, no oath or 
 affirmation shall be required that the said boat belongs to a citizen or 
 citizens of the United States. 
 
 Sec. 2. And be it further enacted, That the owner or owners of such 
 steamboat, upon application for enrolment or license, shall give bond to 
 the collector of the district, to and for the use of the United States, in 
 the penalty of one thousand dollars, with sufficient surety, conditioned, 
 that the said boat shall not be employed in other waters than the rivers 
 and bavs of the United States. 
 
 ACT OF 1S13, CHAPTER XLII. (2 TJ. S. Stats, at Large, 809). 
 
 An Act for the Regulation of Seamen on hoard the Public and Private Vessels of the United 
 
 States. 
 
 Section 1. Be it enacted by the Senate and House of Representatives 
 of the United States of America, in Congress assembled, That from and 
 after the termination of the war in which the United States are now 
 engaged with Great Britain, it shall not be lawful to employ on board 
 any of the pubhc or private vessels of the United States any person or 
 persons except citizens of the United States, or persons of color, natives 
 of the United States. 
 
 Sec. 2. And be it further enacted. That from and after the time when 
 this act shall take effect, it shall not be lawful to employ as aforesaid, 
 any naturalized citizen of the United States, unless such citizen shall 
 produce to the commander of the public vessel, if to be employed on 
 board such vessel, or to a collector of the customs, a certified copy of 
 the act by which he shall have been naturalized, setting forth such natu- 
 ralization and the time thereof. 
 
 Sec. 3. And be it further enacted, That in all cases of private ves- 
 sels of the United States sailing from a port in the United States to a 
 foreign port, the list of the crew, made as heretofore directed by law, 
 shall be examined by the collector for the district from which the vessel 
 shall clear out, and, if approved of by him, shall be certified accordingly. 
 And no person shall be admitted or employed as aforesaid, on board of 
 any vessel aforesaid, unless his name shall have been entered in the list 
 of the crew, approved and certified by the collector for the district from 
 which the vessel shall clear out as aforesaid. And the said collector, 
 before he delivers the list of the crew, approved and certified as afore- 
 said, to the captain, master, or proper officer of the vessel to which the
 
 APPENDIX. 569 
 
 same belongs, shall cause the same to be recorded in a book by him for 
 that purpose to be provided, and the said record shall be open for the 
 inspection of all persons, and a certified copy thereof shall be admitted 
 in evidence in any court in Avhich any question may arise, under any 
 of the provisions of this act. 
 
 Sec. 4. And he it further enacted, That the President of the United 
 States be, and he hereby is authorized from time to time to make such 
 further regulations, and to give such directions to the several commanders 
 of pubhc vessels, and to the several collectors, as may be proper and 
 necessary respecting the proofs of citizenship, to be exhibited to the 
 commanders or collectors aforesaid : Provided, That nothing contained 
 in such regulations or directions shall be repugnant to any of the pro- 
 visions of this act. 
 
 Sec. o. And he it further enacted. That from and after the time 
 when this act shall take effect, no seaman or other seafaring man, not 
 being a chizen of the United States, shall be admitted or received as a 
 passenger on board of any public or private vessel of the United States, 
 in a foreign port, -without permission in writing from the proper officers 
 of the country of which such seaman or seafaring man may be subject or 
 citizen. 
 
 Sec. 6. And he it further enacted, That from and after the time 
 when this act shall take effect, the consuls or commercial agents of any 
 nation at peace with the United States shall be admitted (under such 
 regulations as may be prescribed by the President of the United States) 
 to state their objections to the proper commander or collector as afore- 
 said, against the employment of miy seaman or sea-faring man on board 
 of anv public or private vessel of the United States, on account of his 
 being a native subject or citizen of such nation, and not embraced 
 within the description of persons who may be lawfully employed, accord- 
 ing to the provisions of this act ; and the said consuls or commercial 
 agents shall also be admitted under the said regulations, to be present 
 at the time when the proofs of citizenship of the persons against v.hom 
 such objections may have been made, shall be investigated by sucli com- 
 mander or collector. 
 
 Sec. 7. And be it further enacted, That if any commander of a public 
 vessel of the United States, shall knowingly employ or permit to be em- 
 ployed, or shall admit or receive, or permit to be admitted or received, 
 on board his vessel, any person whose employment or admission is pro- 
 hibited bv the provisions of this act, he shall on conviction thereof forteit 
 and pay the sum of one thousand dollars for each person thus unlaM'fully 
 employed or admitted on board such vessel. 
 
 Sec. 8. And be it further enacted, That it any person shall, contrary 
 to the prohibitions of this act, be employed, or be received on board of 
 
 48*
 
 570 APPENDIX. 
 
 any private vessel, the master or commander, and the owner or owners of 
 such vessel, knowing thereof, shall respectively forfeit and pay five hun- 
 dred dollars for each person thus unlawfully employed or received in any 
 one voyage ; which sum or sums shall be recovered, although such sea- 
 man or person shall have been admitted and entered in the certified list 
 of the ci'ew aforesaid, by the collector for the district to which the vessel 
 may belong : and all penalties and forfeitures arising under or incurred 
 by virtue of this act, may be sued for, prosecuted, and recovered, with 
 costs of suit by action of debt, and shall accrue and be one moiety thereof 
 to the use of the person who shall sue for the same, and the other moiety 
 thereof to the use of the United States. 
 
 Sec. 9. A7id be it further enacted, That nothing in this act contained 
 shall be construed to prohibit any commander or master of a public or 
 private vessel of the United States, whilst in a foreign poi't or place, from 
 receiving any American seamen in conformity to law, or supplying any 
 deficiency of seamen on board such vessel, by employing American 
 seamen, or subjects of such foreign country, the employment of whom 
 shall not be prohibited by the laws thereof. 
 
 Sec. 10. And be it further enacted, That the provisions of this act 
 shall have no effect or operation with respect to the employment as sea- 
 men of the subjects or citizens of any foreign nation which shall not, by 
 treaty or special convention with the government of the United States, 
 have prohibited on boai'd of her public and private vessels the employ- 
 ment of native citizens of the United States, who have not become a 
 citizen or subject of such nation. 
 
 Sec. 11. And be it further enacted, That nothing in this act contained 
 shall be so construed as to prevent any arrangement between the United 
 States and any foreign nation, which may take place under any treaty 
 or convention, made and ratified in the manner prescribed by the con- 
 stitution of the United States. 
 
 Sec. 12. And be it further enacted, That no person Avho shall arrive 
 in tlie United States, from and after the time when this act shall take 
 effect, shall be admitted to become a citizen of the United States, who 
 shall not for the continued term of five years next preceding his admis- 
 .sion as aforesaid have resided within the United States, without being 
 at any time during the said five years, out of the territory of the United 
 ..States. 
 
 Skc. 13. And be it further enacted, That if any person shall falsely 
 «(iake, forge, or counterfeit, or cause, or procure to be falsely made, 
 forged, or counterfeited, any certificate or evidence of citizenship referred 
 to in this act ; or shall pass, utter, or use as true, any fjilse, forged, or 
 counterfeited certificate of citizenship, or shall make sale or dispose of 
 ^ny certificate ,^f citizenship to any person other than the person for
 
 APPENDIX. 571 
 
 whom it was originally issued, and to whom it may of right belong, 
 every such person shall be deemed and adjudged guilty of felony ; and 
 on being thereof convicted by due course of law, shall be sentenced to 
 be imprisoned and kept to hard labor for a period not less than three, or 
 more than five years, or be fined in a sum not less than five hundred dol- 
 lars, nor more than one thousand dollars, at the discretion of the court 
 taking cognizance thereof. 
 
 Sec. 14. And he it farther enacted, That no suit shall be brought for 
 any forfeiture or penalty incurred under the provisions of this act, 
 unless the suit be commenced within three years from the time of the 
 forfeiture. 
 
 ACT OF 1813, CHAPTER II. (3 U. S. Stats, at Large, 2). 
 An Act for the government of Persons in certain Fisheries. 
 
 Section 1. Be it enacted hy the Senate and House of Representatives 
 of the United States of America in Congress assembled, That the master or 
 skipper of any vessel of the burden of twenty tons or upwards, qualified 
 according to law for carrying on the bank and other cod fisheries, bound 
 from a port of the United States to be employed in any such fishery, at 
 sea, shall, before proceeding on such fishing voyage, make an agreement 
 in writing or print with every fisherman who may be employed therein 
 (except only an apprentice or servant of himself or owner), and, in addi- 
 tion to such terms of shipment as may be agreed on, shall in such agree- 
 ment express whether the same is to continue for one voyagg or for the 
 fishing season, and shall also express, that the fish or the proceeds of such 
 fishing voyage or voyages, which may appertain to the fishermen, shall 
 be divided among them in proportion to the quantities or number of said 
 fish wliicli they may respectively have caught ; which agreement shall be 
 indorsed or countersigned by the owner of such fishing vessel or his agent. 
 And if any fisherman, having engaged himself for a voyage or for the 
 fishing season, in any fishing vessel, and signed an agreement therefor as 
 aforesaid, shall thereafter and while such agreement remains in force and 
 to be performed, desert or absent himself from such vessel without leave 
 of the master or skipper thereof, or of the owner or his agent, such de- 
 serter shall be liable to the same penalties as deserting seamen or mari- 
 ners are subject to in the merchant service, and may in the like manner, 
 and upon the like complaint and proof, be apprehended and detained ; 
 and all costs of process and commitment, if paid by the master or owner, 
 shall be deducted out of the share of fish, or proceeds of any fishing voy- 
 age to which such deserter had or shall become entitled. And any fisher-
 
 572 APPENDIX. 
 
 man, having engaged himself as aforesaid, who shall during such fishing 
 voyage refuse or neglect his proper duty on board the fishing vessel, being 
 thereto ordered or required by the master or skipper thereof, or shall 
 otherwise resist his just commands to the hinderance or detriment of such 
 voyage, besides being answerable for all damages arising thereby, shall 
 forfeit to the use of the owner of such vessel his share of any public 
 allowance which may be paid upon such voyage. 
 
 Sec. 2. And he it further enacted, That where an agreement or contract 
 shall be so made and signed for a fishing voyage or for the fishing season, 
 and any fish which may have been caught on board such vessel during 
 the same, shall be delivered to the owner or to his agent for cure, and 
 shall be sold by said owner or agent, such vessel shall, for the term of six 
 months after such sale, be liable and answerable for the skipper's and 
 every other fisherman's share of such fish, and may be proceeded against 
 in the same foi'm and to the same effect as any other vessel is by law 
 liable and may be proceeded against for the wages of seamen or marmers 
 in the merchant service. And upon such process for the value of a share 
 or shares of the proceeds of fish delivered and sold as aforesaid, it shall 
 be incumbent on the owner or his agent to produce a just account of the 
 sales and division of such fish according to such agreement or contract ; 
 otherwise the said vessel shall be answerable upon such process for what 
 may be the highest value of the share or shares demanded. But in all 
 cases the owner of such vessel or his agent, appearing to answer to such 
 process, may offer thereupon his account of general supplies made for 
 such fishing voyage and of other supplies therefor made to either of the 
 demandants, and shall be allowed to produce evidence thereof in answer 
 to their demands respectively ; and judgment shall be rendered upon such 
 process for the respective balances which upon such an inquiry shall 
 appear : Provided always, That when process shall be issued against any 
 vessel liable as aforesaid, if the owner thereof, or his agent, Avill give 
 bond to each fisherman in whose favor such process shall be instituted 
 with suflicient security, to the satisfaction of two justices of the peace, 
 one of whom shall be named by such owner or agent, and the other by 
 the fisherman or fishermen pursuing such process, or if either party shall 
 refuse, then the justice first appointed shall name his associate, with con- 
 dition to answer and pay whatever sum shall be recovered by him or 
 them on such process, there shall be an immediate discharge of such ves- 
 sel : Provided, That nothing herein contained shall prevent any fisherman 
 from having his action at common law for his share or shares of fish or 
 the proceeds thereof as aforesaid.
 
 APPENDIX. 573 
 
 ACT OF 1813, CHAPTER XXXV. (3 U. S. Stats, at Large, 49). 
 
 An Act Jaymc) a duty on unjwrted Salt ; granting a bounty on PicMed Fish exported, and 
 allowances to certain Vessels employed in the Fisheries. 
 
 Section 1. Be it enacted hy the Senate and House of Representatives 
 of the United States of America in Congress assembled, That from and 
 after the first day of Januaiy next, a duty of twenty cents per bushel 
 shall be laid, imposed, and collected, upon all salt imported from any 
 foreign port or place into the United States. In calculating the said duty, 
 every fifty-six pounds of salt shall be computed as equal to one bushel. 
 And the said duty shall be collected in the same manner, and under the 
 same regulations as other duties laid on the importation of foreign goods, 
 wares, and merchandise, into the United States : Provided, That draw- 
 back shall in no case be allowed, and the term of credit for the payment 
 of duties shall be nine months. 
 
 Sec. 2. And be it further enacted. That on all pickled fisb of the fisheries 
 of the United States, exported therefrom subsequent to the last day of 
 December, one thousand eight hundred and fourteen, there shall be 
 allowed and paid a bounty of twenty cents per barrel, to be paid by the 
 collector of the district from which the same shall be so exported, without 
 any deduction or abatement : Provided always, That in order to entitle 
 the exporter or exporters of such pickled fish to the benefit of such 
 bounty or allowance, the said exporter or exporters shall make entry witb 
 the collector and naval officer of the district from whence the said pickled 
 fish are intended to be exported ; and shall specify in such entry the 
 names of the master and vessel in which, and the place where such fisli 
 are intended to be exported, together with the particular quantity ; and 
 proof shall be made to the satisfaction of the collector of the district from 
 which such pickled fish are intended to be exported, and of the naval 
 officer thereof, if any, that the same are of the fisheries of the United 
 States ; and no entry shall be received as aforesaid, of any pickled fish 
 which have not been inspected and marked pursuant to the inspection 
 laws of the respective States where inspection laws are in force, in regard 
 to any pickled fish, and the casks containing such fish shall be branded 
 with the words " for bounty," with the name of the inspector or packer, 
 the species and quality of the fish contained therein, and the name of the 
 port of exportation ; and the collector of such district shall, together with 
 the naval officer, where there is one, grant an order or permit for an in- 
 spector to examine the pickled fish as expressed in such entry, and if they 
 correspond therewith, and the said officer is fully satisfied that they are of 
 the fisheries of the United States, to lade the same agreeably to such 
 entry, on board the ship or vessel therein expressed ; which lading shall
 
 574 APPENDIX. 
 
 be iicrformcfl under the superintendence of the officer examining the 
 same, who shall make returns of the quantity and quality of pickled fish 
 so laden on board, in virtue of such order or permit, to the officer or 
 officers granting the same. And the said exporter or exporters, when 
 the lading is completed, and after returns thereof have been made as 
 above directed, shall make oath or affirmation, that the pickled fish ex- 
 pressed in such entry, and then actually laden on board the ship or vessel 
 as therein expressed, are truly and honCtJide of the fisheries of the United 
 States, that they are truly intended to be exported as therein specified, 
 and are not intended to be relanded within the limits of the United 
 States ; and shall also give bond in double the amount of the bounty or 
 allowance to be received, with one or more sureties to the satisfaction of 
 the collector of the port or place from which the said pickled fish are in- 
 tended to be exported, conditioned that the same shall be landed and left 
 at some foreign port or place without the limits aforesaid ; which bonds 
 shall be cancelled at the same periods and in like manner as is provided 
 in respect to bonds given on the exportation of goods, wares, and mer- 
 chandise, entitled to drawback of duties: Provided always, That the said 
 bounty or allowance shall not be paid until at least six months after the 
 exportation of such pickled fish, to be computed from the date of the 
 bond, and until the exporter or exporters thereof shall produce to the col- 
 lector with Avhom such outward entry is made, such certificates or other 
 satisfactory proof of the landing of the same as aforesaid, as is made 
 necessary for cancelling the bonds given on the exportation of goods 
 entitled to drawback: And j^rovided also, ThaX the bounty or allowance 
 as aforesaid, shall not be paid unless the same shall amount to ten dollars 
 at least upon each entry. 
 
 Sec. 3. And he it further enacted. That no bounty, di'awback, or allow- 
 ance, shall be made under the authority of this act, unless it shall be 
 proved to the satisfaction of the collector that the pickled fish for which 
 the bounty, drawback, or allowance, shall be claimed, was wholly cured 
 with foreign salt, and on which a duty shall have been secured or paid. 
 
 Sec. 4. And he it further enacted. That if any pickled fish shall be 
 falsely or fraudulently entered with intent to obtain the bounty or allow- 
 ance on their exportation as here provided, when the said fish are not en- 
 titled to the same, the said fish or the value thereof, to be recovered of 
 the person making such false entry, shall be forfeited. 
 
 Sec. 5. And he it further enacted, That from and after the last day of 
 December, one thousand eight hundred and fourteen, there shall be paid 
 on the last day of December, annually, to the owner of every vessel or 
 his agent, by the collector of the district where such vessel may belong, 
 that shall be qualified agreeably to law for carrying on the bank and other 
 cod fisheries, and that shall actually have been employed therein at sea
 
 APPENDIX. 575 
 
 for the term of four months, at the least, of the fishing season next pre- 
 ceding, which season is accounted to be from the last day of February to 
 the last day of November in every year, for each and every ton of such 
 vessel's burden according to her admeasurement as licensed or enrolled, 
 if of twenty tons and not exceeding thirty tons, two dollars and forty 
 cents ; and if above thirty tons, four dollars ; of which allowance afore- 
 said three eighth parts shall accrue and belong to the owner of such fish- 
 ing vessel, and the other five eighths thereof shall be divided by him, his 
 agent, or lawful representative, to and among the several fishermen, who 
 shall have been employed in such vessel during the season aforesaid, or a 
 part thereof, as the case may be, in such proportions as the fish they shall 
 respectively have taken may bear to the whole quantity of fish taken on 
 board such vessel during such season : Provided, That the allowance 
 aforesaid on any one vessel for one season, shall not exceed two hundred 
 and seventy-two dollars. 
 
 Sec. 6. And he it further enacted, That from and after the last day of 
 December, one thousand eight hundred and fourteen, there shall also be 
 paid on the last day of December annually, to the owner of every fishing 
 boat or vessel of more than five tons and less than twenty tons, or to his 
 agent or lawful representative, by the collector of the district where such 
 boat or vessel may belong, the sum of one dollar and sixty cents upon 
 every ton admeasurement of such boat or vessel, which allowance shall 
 be accounted for as part of the proceeds of the fares of said boat or ves- 
 sel, and shall accordingly be so divided among all persons interested 
 therein : Provided, however, That this allowance shall be made only to 
 such boats or vessels as shall have been actually employed at sea in the 
 cod fishery for the term of four months at the least of the preceding sea- 
 son : And provided also, That such boat or vessel shall have landed in the 
 course of said preceding season, a quantity of fish not less than twelve 
 quintals for every ton of her admeasurement ; the said quantity of fish to 
 be ascertained when dried and cured fit for exportation, and according to 
 the weigiit thereof as the same shall weigh at the time of delivery when 
 actually sold, which account of the weight, with the original adjustment 
 and settlement of the fare or fores among the owners and fishermen, to- 
 gether Avith a written account of the length, bi'eadth, and depth of said 
 boat or vessel, and the time she has actually been employed in the fishery 
 in the preceding season, shall in all cases be produced and sworn or 
 afiirmed to before the said collector of the district, in order to entitle the 
 owner, his agent, or lawful representative to receive the allowances afore- 
 said. And if at any time within one year after payment of such allow- 
 ance it shall appear that any fraud or deceit has been practised in obtain- 
 ing the same, the boat or vessel upon which such allowance shall have 
 been paid, if found within the district aforesaid, shall be forfeited, other-
 
 576 APPENDIX. 
 
 wise the owner or owners liaving practised sucli fraud or deceit, shall for- 
 feit and pay one hundred dollars, to be sued for, recovered, and distributed 
 in the same manner as forfeitures and penalties are to be sued for, 
 recovered, and distributed for any breach of the act, intituled "An act to 
 regulate the collection of duties on imports and tonnage." 
 
 Sec. 7. A7id be it further enacted, That the owner or owners of every 
 fishing vessel of twenty tons and upwards, his or their agent or lawful 
 representative, shall, previous to receiving the allowance made by this act, 
 produce to the collector wh6 is authorized to pay the same, the original 
 agreement or agreements which may have been made with the fishermen 
 employed on board such vessel as is herein before required, and also a 
 certificate, to be by him or them subscribed, therein mentioning the par- 
 ticular days on which such vessel sailed and returned on the several voy- 
 ages or fares she may have made in the preceding fishing season, to the 
 truth of which he or they shall swear or affirm before the collector afore- 
 said. 
 
 Sec. 8. And he it further enacted, That no ship or vessel of twenty 
 tons or upwards, employed as aforesaid, shall be entitled to the allowance 
 granted by this act, unless the skipper or master thereof shall, before he 
 proceeds on any fishing voyage, make an agreement in writing or in print, 
 with every fisherman employed therein according to the provisions of 
 the act, intituled " An act for the government of persons in certain fish- 
 eries." 
 
 Sec. 9. And he it further enacted. That any person who shall make any 
 false declaration in any oath or affirmation required by this act, being 
 duly convicted thereof in any court of the United States having jurisdic- 
 tion of such offence, shall be deemed guilty of wilful and corrupt perjury 
 and shall be punished accordingly. 
 
 Sec. 10. And he it further enacted, That this act shall continue in force 
 until the termination of the war in which the United States are now en- 
 gaged with the United Kingdom of Great Britain and Ireland, and the 
 dependencies thereof, and for one year thereafter and no longer. 
 
 ACT OF 1816, CHAPTER XIV. (3 U. S. Stats, at Large, 254). 
 
 An Act to continue in force " A^i Act entitled An Act, laying a duty on imported Salt, 
 granting a bounty on Pickled Fish exported, and allowances to certain Vessels employed in 
 the Fisheries." 
 
 Be it enacted hy the Senate and House of Representatives of the United 
 States of America in Congress assembled, That the act, entitled " An act 
 laying a duty on imported salt, granting a bounty on pickled fish exported, 
 and allowances to certain vessels employed in the fisheries," passed on the
 
 APPENDIX. 577 
 
 twenty-ninth day of July, in the year one thousand eight hundred and 
 thirteen, shall be, and the same is hereby continued in force, any thing in 
 the said act to the contrary thereof in anywise notwithstanding. 
 
 ACT OF 1817, CHAPTER XXXI. (3 U. S. Stats, at Large, 351). 
 An Act concerning the Navigation of the United States. 
 
 Section 1. Be it enacted by the Senate and House of Representatives 
 of the United States of America in Congress assembled., That after the 
 thirtieth day of September next, no goods, wares, or merchandise, shall 
 be imported into the United States from any foreign port or place, except 
 in vessels of the United States, or in such foreign vessels as truly and 
 wholly belong to the citizens or subjects of that country, of which the 
 goods are the growth, production, or manufacture ; or from which such 
 goods, wares, or merchandise, can only be, or most usually are, first 
 shipped for transportation: Provided, nevertheless, That this regulation 
 shall not extend to the vessels of any foreign nation which has not 
 adopted, and which shall not adopt a similar regulation. 
 
 Sec. 2. And be it. further enacted, That all goods, wares, or merchan- 
 dise, imported into the United States contrary to the true intent and 
 meaning of this act, and the ship or vessel wherein the same ghall be 
 imported, together with her cargo, tackle, apparel, and furniture, shall be 
 forfeited to the United States; and such goods, wares, or merchandise, 
 ship, or vessel, and cargo, shall be liable to be seized, prosecuted, and 
 condemned, iu like^manner, and under the same regulations, restrictions, 
 and provisions, as have been heretofore established for the recovery, col- 
 lection, distribution, and remission 6f forfeitures to the United States by 
 the several revenue laws. 
 
 Sec. 3. And be it further enacted, That after the thirtieth day of 
 September next, the bounties and allowances now granted by law to the 
 owners of boats or vessels engaged in the fisheries, shall be paid only on 
 boats or vessels, the officers and at least three fourths of the crews of 
 which shall be proved to the satisfaction of the collector of the district 
 where such boat or vessel shall belong, to be citizens of the United 
 States, or persons not the subjects of any foreign prince or State. 
 
 Sec. 4. And be it further enacted, That no goods, wares, or merchan- 
 dise, shall be imported, under penalty of forfeiture thereof, from one 
 port of the United States to another port of the United States, in a ves- 
 sel belonging wholly or in part to a subject of any foreign power ; but 
 this clause shall not be construed to prohibit the sailing of any foreign 
 vessel from one to another port of the United States, provided no goods, 
 
 VOL. I. 49
 
 578 APPENDIX. 
 
 wares, or mercliandise, other than those imported in such vessel from 
 some foreign jjort, and which shall not have been unladen, shall be car- 
 ried from one port or place to another in the United States. 
 
 Sec. 5. And be it further enacted, That after the tliirtieth day of 
 September next, there shall be paid a duty of fifty cents per ton upon 
 every ship or vessel of the United States, which shall be entered in a 
 district in one State from a district in another State, except it be an 
 adjoining State on the sea-coast, or on a navigable river or lake, and 
 except also it be a coasting vessel going from Long Island, in the State 
 of New York, to the State of Rhode Island, or from the State of Rhode 
 Island to the said Long Island, having on board goods, wares, and mer- 
 chandise, taken in one State, to be delivered in another State : Provided, 
 That it shall not be paid on any ship or vessel having a license to trade 
 between the different districts of the United States, or to carry on the 
 bank or whale fisheries, more than once a year ; And provided also, That 
 if the owner of any such vessel, or his agent, shall prove, to the satisfac- 
 tion of the collector, that three fourths at least of the crew thereof are 
 American citizens, or persons not the subjects of any foreign prince or 
 State, the duty to be paid in such case shall be only at the rate of six 
 cents per ton ; but nothing in this section shall be construed to repeal or 
 affect any exemption from tonnage duty given by the eighth section of 
 the act, entitled " An act to provide for the establishment of certain dis- 
 tricts, and therein to amend an act, entitled An act to regulate the col- 
 lection of duties on imports and tonnage, and for other purposes." 
 
 Sec 6. And he it further enacted, That after the thirtieth day of 
 September next, there shall be paid upon every ship or vessel of the 
 United .States, which s-hall be entered in the United States, from any 
 foreign port or place, unless the officers, and at least two thirds of the 
 crew thereof, shall be proved citizens of the United States, or persons 
 not the subjects of any foreign prince or State, to the satisfaction of the 
 collector, fifty cents per ton ; And provided also. That this section shall 
 not extend to ships or vessels of the United States which ai'e now on 
 foreign voyages, or which may depart from the United States prior to the 
 first day of May next, until after their return to some port of the United 
 States. 
 
 Sec. 7. And he it further enacted, That the several bounties and 
 remissions, or abatements of duty, allowed by this act, in the case of 
 vessels having a certain proportion of seamen who are American citizens, 
 or persons not the subjects of any foreign power, shall be allowed only 
 in the case of vessels having such proportion of American seamen dur- 
 ing their whole voyage, unless in case of sickness, death, or desertion, or 
 where the whole or part of the crew shall have been taken prisoners in 
 the voyage.
 
 APPENDIX. 579 
 
 ACT OF 1819, CHAPTER XLVIII. (3 U. S. Stats, at Large, 492). 
 An Act supplementary to the Acts concerning the Coasting Trade. 
 
 Section 1. Be it enacted hy the Senate and House of Representatives 
 of the United States of America in Congress assenibled, That for the 
 more convenient regulation of the coasting trade, the sea-coast and navi- 
 gable rivers of the United States be, and hereby are, divided into two 
 great districts ; the first, to include all the districts on the sea-coast and 
 navigable rivers, between the eastern limits .of the United States and the 
 southern limits of Georgia, and the second, to include all the districts on 
 the sea-coast and navigable rivers, between the river Perdido and the 
 western limits of the United States. 
 
 Sec. 2. And be it further enacted, That every ship or vessel, of the 
 burden of twenty tons or upwards, licensed to trade between the diiferent 
 districts of the United vStates, shall be, and is hereby authorized to carry 
 on such trade between the districts included within the aforesaid great 
 districts respectively, and between a State in one, and an adjoining State 
 in another, great district, in manner, and subject only to the regulations 
 that are, now by law required to be observed by sucli ships or vessels, in 
 trading from one district to another in the same State, or from a district 
 in one State to a district in the next adjoining State, any thing in any law 
 to the contrary, notwithstanding. 
 
 Sec. 3. And he it further enacted, That every ship or vessel, of the 
 burden of twenty tons or upwards, licensed to trade as aforesaid, shall be, 
 and is hereby, required, in trading from one to another great district, 
 other than between a State in one, and an adjoining State in another, 
 great district, to conform to and observe the regulations, that, at the time 
 of passing this act, are required to be observed by such vessels in trading 
 from a district in one State to a district in any other than an adjoining 
 State. 
 
 Sec. 4. And be it further enacted, That the trade between the districts 
 not included in either of the two great districts aforesaid, shall continue 
 to be carried on in the manner, and subject to the regulations, already 
 provided for this purpose. 
 
 Sec. 0. And he it further enacted. That this act shall commence and 
 be in force, from and after the thirtieth day of June next after the pass- 
 ing thereof. ,
 
 580 APPENDIX. 
 
 ACT OF 1819, CHAPTER LXXVII. (3 U. S. Stats, at Large, 510). 
 An Act to protect the Commerce of the United States, and punish the crime ofPiraaj. 
 
 Section 1. Be it enacted by the Senate and House of Representatives 
 of the United States of America in Congress assembled, That tlie Presi- 
 dent of the United States be, and hereby is, authorized and requested to 
 employ so many of the public armed vessels, as, in his judgment, the 
 service may require, with suitable instructions to the commanders 
 thereof, in protecting the merchant vessels of the United States and their 
 crews from piratical aggressions and depredations. 
 
 Sec. 2. A7id be it further enacted, That the President of the United 
 States be, and hereby is, authorized to instruct the commanders of the 
 public armed vessels of the United States to subdue, seize, take, and send 
 into any port of the United States, any armed vessel or boat, or any ves- 
 sel or boat, the crew whereof shall be armed, and which shall have 
 attempted or committed any piratical aggression, search, restraint, depre- 
 dation, or seizure, upon any vessel of the United States, or of the citi- 
 zens thereof, or upon any other vessel ; and also to retake any vessel of 
 the United States, or its citizens, which may have been unlawfully cap- 
 tured upon the high seas. 
 
 Sec. 3. Aiid be it further enacted, That the commander and crew of 
 any merchant vessel of the United States, owned wholly, or in part, 
 by a citizen thereof, may oppose and defend against any aggression, 
 search, restraint, depredation, or seizure, which shall be attempted upon 
 such vessel, or upon any other vessel owned as aforesaid by the com- 
 mander or crew of any armed vessel whatsoever, not being a public armed 
 vessel of some nation in amity with the United States ; and may subdue 
 and capture the same ; and may also retake any vessel, owned as afore- 
 said, which may have been captured by the commander or crew of any 
 such armed vessel, and send the same into any port of the United 
 States. 
 
 Sec. 4. And be it further enacted. That whenever any vessel or boat, 
 from which any piratical aggression, search, restraint, depredation, or 
 seizure shall have been first attempted or made, shall be captured and 
 brought into any port of the United States, the same shall and may be 
 adjudged and condemned to their use, and that of the captors, after due 
 process and trial, in any court having adtniralty jurisdiction, and which 
 shall be holden for the district into which such captured vessel shall be 
 brought ; and the same court shall thereupon order a sale and distribu- 
 tion thereof accordingly, and at their discretion. 
 
 Sec. 5. Ajid be it further enacted. That if any person or persons 
 ■whatsoever, shall, on the high seas, commit the crime of piracy, as
 
 APPENDIX. 581 
 
 defined by the law of nations, and such offender or offenders, shall after- 
 wards be brought hito or found in the United States, every such offender 
 or offenders shall, upon conviction thereof, before the circuit court of the 
 United States for the district into which he or they may be brought, 
 or in which he or they shall be found, be punished with death. 
 
 Sec. 6. And be it further enacted, That this act shall be in force until 
 the end of the next session of congress. 
 
 ACT OF 1819, CHAPTER LXXXIX. (3 U. S. Stats, at Large, 520). 
 
 An Act in addition to, and alteration of an Act, entitled " An Act laying a Duty on 
 Imported Salt, granting a Bounty on Pickled Fish exported, and allowances to certain 
 Vessels employed in the Fisheries." 
 
 Section 1. Be it enacted by the Senate and House of Representatives 
 of the United States of America in Congress assembled, That from and 
 after the passing of this act, there shall be paid, on the last day of Decem- 
 ber, annually, to the owner of every fishing boat or vessel, or his agent, 
 by the collector of the district where such boat or vessel may belong, that 
 shall be qualified, agreeably to law, for carrying on the bank and other 
 cod fisheries, and that shall actually have been employed therein, at sea, 
 for the term of four months at least, of the fishing season next preceding, 
 which season is accounted to be from the last day of February to the last 
 day of November in every year, for each and every ton of such boats or 
 vessels, burden according to her admeasurement as licensed or enrolled, 
 if of more than five tons, and not exceeding thirty tons, three dollars and 
 fifty cents ; if above thirty tons, four dollars ; and if above thirty tons, 
 and having had a ci'ew of not less than ten persons, and having been 
 actually employed in the cod fishery, at sea, for the term of three and one 
 half months, at the least, but less than four months, of the season afore- 
 said, three dollars and fifty cents : Provided, That the allowance afore- 
 said, on any one vessel, for one season, shall not exceed three hundred 
 and sixty dollars. 
 
 Sec. 2. And be it further enacted, That such parts of the fifth "and 
 sixth sections of the act hereby amended, as are contrary to the provis- 
 ions of this act, be, and the same are hereby I'epealed. 
 
 49*
 
 582 APPENDIX. 
 
 ACT OF 1820, CHAPTER XI. (3 U. S. Stats, at Large, 541). 
 
 An Act to provide for ohtaining accurate statements of the Foreign Commerce of the United 
 
 States. 
 
 Section 1. Be it enacted ly the Senate and House of Representatives 
 of the United States of America in Congress assembled, That the register 
 of the treasury shall, under the direction of the secretary of the treasury, 
 annually prepare statistical accounts of the commerce of the United 
 States with foreign countries, for each preceding year ; which accounts 
 shall be laid before congress, by the secretary of the treasury, on the first 
 Monday of December in every year, or as soon after as possible. 
 
 Sec. 2. And he it further enacted, That such accounts shall compre- 
 hend and state all goods, wares, and merchandise, exported from the 
 United States to other countries ; all goods, wares, and merchandise, im- 
 ported into the United States from other countries ; and all navigation 
 employed in the foreign trade of the United States ; which facts shall be 
 stated according to the principles, and in the manner, hereby directed. 
 
 Sec. 3. And he it further enacted. That the kinds, quantities, and 
 values, of all articles exported, and the kinds, quantities, and values, of 
 all articles imported, shall be distinctly stated in such accounts ; except 
 in cases in which it may appear to the secretary of the treasury that 
 separate statements of the species, quantities, or values, of any particular 
 articles, would swell the annual statements without utility ; and, in such 
 cases, the kinds and total values of such articles shall be stated together, 
 or in such classes as the secretary of the treasury may think fit. 
 
 Sec. 4. And he it further enacted. That the exports shall be so stated 
 as to show the exports to each foreign country, and their values ; and 
 that the imports shall be so stated, as to show the imports from each for- 
 eign country, and their values. 
 
 Sec. 5, And he it further enacted, That the exports shall be so stated, 
 as to show, separately, the exports of articles of the production or 
 manufacture of the United States, and their values ; and the exports of 
 articles of the production or manufacture of foreign countries, and their 
 values. 
 
 Sec. 6. And he it further enacted. That the navigation, employed in 
 the foreign trade of the United States, shall be stated in such manner, as 
 to show the amount of the tonnage of all vessels departing from the 
 United States for foreign countries ; and, separately, the amount of such 
 tonnage of vessels of the United States, and the amount of such tonnage 
 of foreign vessels ; and also the foreign nations to which such foreign 
 tonnage belongs, and the amount of such tonnage belonging to each for- 
 eign nation ; and in such manner as also to show the amount of the ton-
 
 APPENDIX. 583 
 
 nagc of all vessels departing for eveiy particular foreign country, with 
 which the United States have any considerable commerce; and, sepa- 
 rately, the amount of such tonnage of vessels of the United States, and 
 the amount of such tonnage of foreign vessels ; and, in such manner as 
 to show the amount of the tonnage of all vessels arriving in the United 
 States from foreign countries ; and, separately, the amount of such ton- 
 nage of vessels of the United States, and the amount of such tonnage of 
 foreign vessels ; and, also, the foreign nations to which such foreign ton- 
 nage belongs, and the amount of such tonnage belonging to each foreign 
 nation ; and, in such manner, as also to show the amount of the tonnage 
 of all vessels arriving from every particular foreign country, with which 
 the United States have any considerable commerce ; and, separately, the 
 amount of such tonnage of vessels of the United States, and the amount 
 of such tonnage of foreign vessels. 
 
 Sec. 7. And be it further enacted, That the kinds and quantities of 
 all imported articles free from duty shall be ascertained by entry, made 
 upon oath or affirmation, by the owner, or by the consignee or agent of 
 the importer ; or by actual examination, where the collector shall think 
 such examination necessary : and that the values of all such articles 
 shall be ascertained in the same manner in which the), values of imports 
 subject to duties ad valorem are ascertained. 
 
 Sec. 8. And be it further enacted, That the values of all imported 
 articles subject to specific duties, shall be ascertained in the manner 
 in which the values of imposts subject to duties ad valorem are ascer- 
 tained. 
 
 Sec. 9. And be it further enacted, That the collectors shall keep sepa- 
 rate accounts of the kinds, quantities, and values, of such parts of the 
 imports subject to duties ad valorem, as may be directed by the secretary 
 of the treasury. 
 
 Sec. 10. And be it further enacted, That all articles exported shall be 
 valued at their actual cost, or the values Avhich they may truly bear at 
 the time of exportation, in the ports of the United States from which 
 they are exported : and that all articles imported shall be valued at their 
 actual cost, or the values which they may truly bear in the foreign ports 
 from which they are exported for importation into the United States, at 
 the time of such exportation. 
 
 Sec. 11. And be it further enacted. That before a clearance shall be 
 granted for any vessel bound to a foreign place, the owners, shippers, or 
 consignors, of the cargo on board of such vessel, shall deliver to the col- 
 lector manifests of the cargo, or the parts thereof shipped by them 
 respectively, and shall verify the same by oath or affirmation ; and such 
 manifests shall specify the kinds and quantities of the articles shij)ped by 
 them respectively, and the value of the total quantity of each kind of
 
 584 APPENDIX. 
 
 articles ; and such oath or afRrmation shall state that such manifest con- 
 tains a full, just, and true account of all articles laden on board of such 
 vessel by the owners, shippers, or consignors, respectively, and that the 
 values of such articles are truly stated, according to their actual cost, or 
 the values which they truly bear at the port and time of exportation ; and, 
 before a clearance shall be granted for any such vessel, the master of 
 every such vessel, and the owners, shippers, and consignors of the cargo, 
 shall state, upon oath or affirmation, to the collector, the foreign place or 
 country in which such cargo is truly intended to be landed ; and the said 
 oaths or affirmations shall be taken and subscribed in writing. 
 
 Sec. 12. And he it further enacted, That every collector shall keep an 
 accurate account of the national characters and tonnage of all vessels 
 which depart from his district for foreign countries, and of the foreign 
 places or countries for which such vessels depart ; and, also, an accurate 
 account of the national characters and tonnage of all vessels which enter 
 his district from foreign countries, and of the foreign places or countries 
 from which such vessels arrive. 
 
 Sec. 13. And he it further enacted, That the several collectors shall 
 make quarter yearly returns to the register of the treasury, of all the 
 facts and matters ^vhich they are hereby requu'ed to ascertain. 
 
 Sec. 14. And he it further enacted, That the secretary of the treasury 
 shall give such directions to the collectors, and prescribe such rules and 
 forms to be observed by them, as may appear to him proper for attaining 
 the objects of tliis act : Provided, That such directions or rules shall not 
 be contrary to the provisions of any law of the United States. 
 
 Sec. 15. And he it further eiiacted, That the forms of the annual state- 
 ments hereby required, shall be determined by the secretary of the 
 treasury, who shall prescribe such forms as may be proper to exhibit the 
 facts hereby required to be stated in the cleai'est manner, and to show 
 the actual state of commerce and navigation between the United States 
 and foreign countries in each year. 
 
 Sec. 16. And he it further enacted, That this act shall be in force from 
 the thirtieth day of September next. 
 
 ACT OF 1825, CHAPTER LXV. (4 U. S. Stats, at Large, 115). 
 
 An Act more effeduaUj to provide for the punishment of certain crimes against the United 
 States, and for other purposes. 
 
 Sec. 4. And he it further enacted, That, if any person or persons, upon 
 the high seas, or in any arm of the sea, or in any river, haven, creek, 
 basin, or bay, within the admiralty and maritime jurisdiction of the United
 
 APPENDIX. 585 
 
 States, and out of the jurisdiction of any particular State, shall" commit 
 the crime of wilful murder, or rape, or shall, wilfully and maliciously, 
 strike, stab, wound, poison, or shoot at, any other person, of which strik- 
 ing, stabbing, wounding, poisoning, or shooting such person shall after- 
 wards die, upon land, within or without the United States, every person 
 so offending, his or her counselloi's, aiders, or abettors, shall be deemed 
 guilty of felony, and shall, upon conviction thereof, suffer death. 
 
 Sec. 5. A7id be it further enacted, That if any offence shall be commit- 
 ted on board of any ship or vessel, belonging to any citizen or citizens of 
 the United States, while lying in a port or place within the jurisdiction of 
 any foreign State or sovereign, by any person belonging to the company 
 of said ship, or any passenger, on any other person belonging to the com- 
 pany of said ship, or any other passenger, the same offence shall be cog- 
 nizable and punishable by the proper circuit court of the United States, 
 in the same way and manner, and under the same circumstances, as if said 
 offence had been committed on board of such ship or vessel on the high 
 seas, and without the jui-isdiction of such foreign sovereign or State : 
 Provided, always, That if such offender shall be tried for such offence, and 
 acquitted or convicted thereof, in any competent court of such foreign 
 State or sovereign, he shall not be subject to another trial in any court of 
 the United States. ' --- . . 
 
 Sec. 6. And he it further enacted, That, if any person or persons, upon 
 the high seas, or in any arm of the sea, or in any river, haven, creek, basin, 
 or bay, within the admiralty and maritime jurisdiction of the United States, 
 and out of the jurisdiction of any particular State, shall, by surprise or by 
 open force or violence, maliciously attack, or set upon, any ship or vessel 
 belonging in whole or part, to the United States, or to any citizen or citi- 
 zens thereof, or to any other person whatsoever, with an intent unlaw- 
 fully to plunder the same ship or vessel, or to despoil any owner or 
 owners thereof of any moneys, goods, or mei'chandise, laden on board 
 thereof, every person so offending, his or her counsellors, aiders, or abet- 
 tors, shaU be deemed guilty of felony ; and shall, on conviction thereof, 
 be punished by fine, not exceeding five thousand dollars, and by imprison- 
 ment and confinement to hard labor, not exceeding ten years, according to 
 the aggravation of the offence. 
 
 Sec. 7. And be it further enacted. That, if any person or persons, upon 
 the high seas, or in any other of the places aforesaid, with intent to kill, 
 rob, steal, commit a rape, or to do or perpetrate any other felony, shall 
 break or enter any ship or vessel, boat or raft ; or if any person or per- 
 sons shall, wilfully and maliciously, cut, spoil, or destroy, any cordage, 
 cable, buoys, buoy-rope, headfast, or other fast, fixed to any anchor or 
 moorings, belonging to any ship, vessel, boat, or raft ; every person, so
 
 586 APPENDIX. 
 
 offending, liis or her counsellors, aiders, and abettors, shall be deemed 
 guilty of felony, and shall, on conviction th(?reof, be punished by fine, not 
 exceeding one thousand dollars, and by imprisonment and confinement to 
 bard labor, not exceeding five years, according to the aggravation of the 
 offence. 
 
 Sec. 8. And be it further enacted, That, if any person or persons, upon 
 the high seas, or in any of the places aforesaid, shall buy, receive, or con- 
 ceal, or aid in concealing any money, goods, bank-notes, or other effects or 
 things which may be the subject of larceny, which have been feloniously 
 taken or stolen, from any other person, knowing the same to have been 
 taken or stolen, every person, so offending, shall be deemed guilty of a 
 misdemeanor, and may be prosecuted therefor, although the principal 
 offender chargeable, or charged with the larceny, shall not have been 
 prosecuted or convicted thereof; and shall on conviction thereof, be pun- 
 ished by fine, not exceeding one thousand dollars, and imprisonment and 
 confinement to hard labor, not exceeding three years, according to the 
 aggravation of the offence. 
 
 Sec. 9. And be it further enacted, That, if any person or persons shall 
 plunder, steal, or destroy, any money, goods, merchandise, or other effects, 
 from or belonging to any ship or vessel, or boat or raft, which shall be in 
 distress, or which shall be wrecked, lost, stranded, or cast away, upon the 
 sea, or upon any reef, shoal, bank, or rocks, of the sea, or in any other 
 place -within the admiralty and maritime jurisdiction of the United States, 
 or if any person or persons shall wilfully obstruct the escape of any per- 
 son endeavoring to save his or her life from such ship, or vessel, boat, or 
 raft, or the wreck thereof, or, if any person or persons shall hold out or 
 show any false light, or lights, or extinguish any true light, with intention 
 to bring any ship or vessel, boat or raft, being or sailing upon the sea, 
 into danger, or distress, or shipwreck ; every person, so offending, his or 
 her counsellors, aiders, and abettors, shall be deemed guilty of felony, and 
 shall, on conviction thereof, be punished by fine, not exceeding five thou- 
 sand dollars, and imprisonment and confinement to hard labor, not exceed- 
 ing ten years, according to the aggravation of the offence. 
 
 Sec. 10. And be it further enacted, That, if any master or commander 
 of any ship or vessel, belonging, in -whole, or in part, to any citizen or 
 citizens of the United States, shall, during his being abroad, maliciously, 
 and without justifiable cause, force any officer, or mariner of such ship or 
 vessel, on shore, or leave him behind, in any foreign port or place, or re- 
 fuse to bring home again, all such of the oflScers and mariners of such ship 
 or vessel, -whom he carried out with him, as are in a condition to return, 
 and willing to return, when he shall be ready to proceed in his homeward 
 voyage, every master or commander, so offending, shall, on conviction
 
 APPENDIX. 587 
 
 thereof, be punished by fine, not exceeding five hundred dollars, or by im- 
 prisonment, not exceeding six months, according to the aggravation of the 
 offence. 
 
 Sec. 11. And be it furtlier enacted, That, if any person or persons, shall, 
 wilfully and maliciously, set on fire, or burn, or otherwise destroy or cause 
 to be set on fire, or burnt, or otherwise destroyed, or aid, procure, abet, or 
 assist in setting on fire, or burning, or otherwise destroying, any ship or 
 vessel of war of the United States, afloat on the high seas, or in any arm 
 of the sea, or in any river, haven, creek, basin, or bay within the admi- 
 ralty jurisdiction of the United States, and out of the jurisdiction of any 
 particular State, every person so offending, shall be deemed guilty of felony, 
 and shall, on conviction thereof, suffer death : Provided, That nothing 
 herein contained shall be construed to take away or impair the right of 
 any court martial to punish any offence, which, by the law of the United 
 States, may be punishable by such court. 
 
 Sec. 22. And, be it further enacted, Tliat, if any person or persons, upon 
 the high seas, or in any arm of the sea, or in any river, haven, creek, basin, 
 or bay, within the admiralty jurisdiction of the United States, and out of 
 the jurisdiction of any particular State, on board any vessel belonging in 
 whole or in part to the United States, or any citizen or citizens thereof, 
 shall, with a dangerous weapon, or with intent to kill, rob, steal, or to 
 commit a mayhem, or rape, or to perpetrate any other felony, commit an 
 assault on another, such person shall, on conviction thereof, be punished 
 by fine, not exceeding three thousand dollars, and by imprisonment and 
 confinement to hard labor, not exceeding three years, according to the 
 aggi-avation of the offence. 
 
 Sec. 23. And be it further enacted, That, if any person or persons shall, 
 on the high seas, or within the United States, wilfully and corruptly con- 
 spire, combine, and confederate, with any other person or persons, such 
 other person or persons being either within or without the United States, 
 to cast away, burn, or otherwise destroy, any ship or vessel, or to procure 
 the same to be done, with intent to injure any person, or body politic, that 
 hath underwritten, or shall thereafterwards underwrite, any policy of in- 
 surance thereon, or on goods on board thereof, or with intent to injure 
 any person, or body politic, that hath lent or advanced, or thereafter shall 
 lend or advance, any money on such vessel, on bottomry or respondentia, 
 or shall, within the United States, build or fit out, or aid in building or 
 fitting out, any ship or vessel, with intent that the same shall be cast 
 away, burnt, or destroyed, for tlie purj^ose or with the design aforesaid, 
 every person, so offending, shall, on conviction thereof, be deemed guilty 
 of felony, and shall be punished by fine, not exceeding ten thousand dol- 
 lars, and by in)prisonment, and confinement to hard labor, not exceeding 
 ten years.
 
 588 APPENDIX. 
 
 ACT OF 1825, CHAPTER XCIX. (4 U. S. Stats, at Large, 129). 
 
 An Act to authorize the register or enrolment and license to he issued in the name of the Presi- 
 dent or Secretary of ayvj incorporated Company owning a Steamboat or Vessel. 
 
 Section 1. Be it enacted by the Senate and House of Representatives 
 of the United States of America in Congress assembled. That enrolments 
 and licenses for steamboats or vessels, owned by any incorporated com- 
 pany, may be issued in the name of the president or secretary of such 
 company ; and that such enrolments and licenses shall not be vacated or 
 affected by a sale of any share or shares of any stockholder, or stock- 
 holders, in such company. 
 
 Sec. 2. A7id be it further enacted, That registers for steamboats or ves- 
 sels, owned by any incorporated company, may be issued in the name of 
 the president or secretary of such company; and that such register shall 
 not be vacated or affected by a sale of any share or shares of any stock- 
 holder or stockholders in such company. 
 
 Sec. 3. Atid be it further enacted, That, upon the death, removal, or 
 resignation, of the president or secretary of any incorporated company, 
 owning any steamboat or vessel, a new register, or enrolment and license, 
 as the case may be, shall be taken out for such steamboat or vessel. 
 
 Sec. 4. And be it further enacted, That, previously to granting a regis- 
 ter, or enrolment and license, for any steamboat or vessel, owned by any 
 company, the president or secretary of such company shall swear, or 
 affirm, as to the ownership of such steamboat £>v vessel, by such company, 
 without designating the names of the persons composing such company ; 
 which oath, or affirmation, shall be deemed sufficient, without requiring 
 the oath or affirmation of any other person interested or concerned in such 
 steamboat or vessel. 
 
 Sec. 5. And be it further enacted, That, before gi*anting a register for 
 any steamboat or vessel, so owned by any incorporated company, the 
 president or secretary thereof shall swear, or affirm, that, to the best of 
 his knowledge and belief, no part of such steamboat or vessel has been, 
 or is then, owned by any foreigner or foreigners. 
 
 ACT OF 1828, CHAPTER CXIX. (4 U. S. Stats, at Large, 312). 
 
 An Act to authorize the licensing of Vessels to he employed in the Mackerel Fishery. 
 
 Be it enacted by the Senate and House of Representatives of the United 
 States of America in Coi^gress assembled, That, from and after the passage 
 of this act, it shall be the duty of the collector of the district to which any
 
 APPENDIX. 589 
 
 vessel may belong, on an application for that purpose by the master or 
 owner thereof, to issue a license for carrying on the mackerel fishery, to 
 such vessel, in the form prescribed by the act, entitled " An act for enroll- 
 ing and licensing ships or vessels to be employed in the coasting trade and 
 fisheries, and for regulating the same," passed the eighteenth day of Feb- 
 ruary, one thousand seven hundred ajnd ninety-three : Provided, That all 
 the provisions of said act, respecting the licensing of ships or vessels for 
 the coasting trade and fisheries, shall be deemed and taken to be appli- 
 cable to licenses and to vessels licensed for carrying on the mackerel 
 fishery. «. 
 
 ACT OF 1829, CHAPTER XLI. (4 U. S. Stats, at Large, 359). 
 
 An Act to provide for the apprehension and delivery of Deserters from certain Foreign Vessels 
 in the ports of the United States. 
 
 Be it enacted hy the Senate and House of Representatives of the United 
 States of America in Congress assembled, That on application of a consul 
 or vice-consul of any foreign government, having a treaty with the United 
 States, stipulating for the restoration of seamen deserting, made in writ- 
 ing, stating that the person therein named has deserted from a vessel of 
 any such government while in any port of the United States, and on proof 
 by the exhibition of the register of the vessel, ship's roll, or other official 
 document, that the person named belonged, at the time of desertion, to the 
 crew of said vessel, it shall be the duty of any court, judge, justice, or 
 other magistrate, having competent power, to issue warrants to cause the 
 said person to be arrested for examination ; and if, on examination, the 
 facts stated are found to be true, the person arrested, not being a citizen 
 of the United States, shall be delivered up to the said consul or vice-con- 
 sul, to be sent back to the dominions of any such government, or, on the 
 request, and at the expense, of the said consul or vice-consul, shall be 
 detained until the consul (ft vice-consul finds an opportunity to send him 
 back to the dominions of any such government : Provided nevertheless, 
 That no person shall be detained more than two months after his arrest ; 
 but at the end of that time shall be set at liberty, and shall not be again 
 molested for the same cause : And provided further, That if any such 
 deserter shall be found to have committed any crime or offence, his sur- 
 render may be delayed until the tribunal before which the case shall be 
 depending, or may be cognizable, shall have pronounced its sentence, and 
 such sentence shall have been carried into effect. 
 
 VOL. I. 50
 
 590 APPENDIX. 
 
 ACT or 1830, CHAPTER XIV. (4 U. S. Stats, at Large, 372). 
 
 An Act to authorize Surveyors, under the direction of the Secretary of the Treasury, to enroll 
 and license Ships or Vessels to be employed in the Coasting Trade and Fisheries. 
 
 Section 1. Be it enacted hy the Senate and House of Representatives 
 of the United States of America in Congress assembled, That, after the 
 passage of this act, the secretary of the treasury be, and he is hereby, 
 invested with powers to authorize the surveyor of any port of delivery, 
 under such regulations as he shall deem necessary, to enroll and license 
 ships or vessels to be employed in the coasting trade and fisheries, in like 
 manner as collectors of ports of entry are now authorized to do, under 
 existing laws. 
 
 Sec. 2. And he it further enacted, That any surveyor who shall perform 
 the duties directed to be performed by the first section of this act, shall 
 be entitled to receive the same commissions and fees, as are now allowed 
 by law to collectors for performing the same duties, and no more. 
 
 ACT OF 1831, CHAPTER XX. (4 U. S. Stats, at Large, 441). 
 
 An Act to repeal the charges imposed on Passports and Clearances. 
 
 Be it enacted hy the Senate and House of Representatives of the United 
 States of America in Congress asseinhled. That, so much of the act of the 
 fi^rst of June, one thousand seven hundred and ninety-six, entitled " An 
 act providing passports for the ships and vessels of the United States," as 
 imposes a charge of ten dollars for passports, and of four dollars for a 
 clearance, to any ship or vessel bound on a voyage to any foreign country, 
 be, and the same is hereby repealed, to take effect from and after the 
 thirty-first day of March of the present year. 
 
 ACT OF 1831, CHAPTER XCVIIL (4 U. S. Stats, at Large, 487). 
 
 An Act to regulate the Foreign and Coasting Trade on the Northern, North- Eastern, and 
 North- Western frontiers of the United Slates, and for other purposes. 
 
 Section 1. Be it enacted hy the Senate and House of Representatives 
 of the United States of America in Congress assembled. That, from and 
 after the first day of April next, no custom-house fees shall be levied or 
 collected on any raft, flat, boat, or vessel, of the United States, entering 
 otherwise than by sea, at any port of the United States on the rivers and 
 lakes on our northern, north-eastern, and north-western frontiers.
 
 APPENDIX. 591 
 
 Sec. 2. And he it further enacted. That, from and after the first day of 
 April next, the same and no higher tonnage duties and custom-house 
 charges of any kind shall be levied and collected on any British colonial 
 raft, flat, boat, or vessel, entering otherwise than by sea at any port of the 
 United States on the rivers and lakes on our northern, north-eastern, and 
 north-western frontiers, than may be levied and collected on any raft, flat, 
 boat, or vessel, entering otherwise than by sea at any of the ports of the 
 British possessions on our northern, north-eastern, and north-western 
 frontiers : and that, from and after the first day of April next, no higher 
 discriminating duty shall be levied or collected on merchandise imported 
 into the United States in the ports aforesaid, and otherwise than by sea, 
 than may be levied and collected on merchandise when imported in 
 like manner otherwise than by sea, into the British possessions on our 
 northern, north-eastern, and north-western frontiers from the United 
 States. 
 
 Sec. 3. And he it farther enacted, That, from and after the passage of 
 this act, any boat, sloop, or other vessel, of the United States, navigating 
 the waters on our northern, north-eastern, and north-western frontiers, 
 otherwise than by sea, shall be enrolled and licensed in such form as may 
 be prescribed by the secretary of the treasury; which enrolment and 
 license shall authorize any such boat, sloop, or other vessel, to be em- 
 ployed either in the coasting or foreign trade ; and no certificate of regis- 
 try shall be required for vessels so employed on said frontiers : Provided, 
 That such boat, sloop, or vessel, shall be in every other respect liable to 
 the rules, regulations, and penalties, now^ in force, relating to registered 
 vessels on our northern, north-eastern, and north-western frontiers. 
 
 Sec. 4. And he it farther enacted, That in lieu of the fees, emoluments, 
 salary, and commissions, now allowed by law to any collector or surveyor 
 of any district on our northern, north-eastern, and north-western lakes 
 and rivers, each collector or surveyor, as aforesaid, shall receive, annually, 
 in full compensation for these services, an amount equal to the entire 
 compensation received by such officer during the past year. 
 
 ACT OF 1831, CHAPTER CXV. (4 U. S. Stats, at Large, 492). 
 
 An Act concerning Vessels employed in the Whale Fishery. 
 
 Be it enacted hy the Senate and House of Representatives of the United 
 States of America in Congress assemhled, That all the provisions of the 
 act, entitled "An act to authorize the register or enrolment, and license, 
 to be issued in the name of the president or secretary of any incorporated 
 company owning a steamboat or vessel," passed the third day of March,
 
 592 APPENDIX. 
 
 one thousand eight hundred and twenty-five, shall extend and be applica- 
 hle to every ship or vessel owned by any incorporated company, and em- 
 ployed wholly in the whale fishery, so long as such ship or vessel shall be 
 wholly employed in the whale fishery. 
 
 ACT OF 1835, CHAPTER XL. (4 U. S. Stats, at Large, 775). 
 An Act in amendment of the Acts/or the punishment of offences against the United Slates. 
 
 Section 1. Be it enacted by the Senate and House of Representatives 
 of the United States of America in Congress assembled, That if any one or 
 more of the crew of any American ship or vessel on the high seas, or on 
 any other waters within the admiralty and maritime jurisdicition of the 
 United States, shall unlawfully, wilfully, and with force, or by fraud, 
 threats, or other intimidations, usurp the command of such ship or vessel 
 from the master or other lawful commanding officer thereof, or deprive 
 him of his authority and command on board thereof, or resist or prevent 
 him in the free and lawful exercise thereof, or transfer such authority and 
 command to any other person not lawfully entitled thereto, every such 
 person so offending, his aiders or abettors, shall be deemed guilty of a 
 revolt or mutiny and felony ; and shall, on conviction thereof, be punished 
 by fine not exceeding two thousand dollars ; and by imprisonment and 
 confinement to hard labor not exceeding ten years, according to the nature 
 and aggravation of the offence. And the offence of making a revolt in a 
 ship, which now is, under and in virtue of the eighth section of the act 
 of Congress, passed the thirtieth day of April, in the year of our Lord 
 one thousand seven hundred and ninety, punishable as a capital offence, 
 shall, from and after the passage of the present act, be no longer punish- 
 able as a capital offence, but shall be punished in the manner prescribed 
 in the present act, and not otherwise. 
 
 Sec. 2. And be it further enacted, That if any one or more of the crew 
 of any American ship or vessel on the high seas, or any other waters, 
 within the admiralty and maritime jurisdiction of the United States, shall 
 endeavor to make a revolt or mutiny on board such ship or vessel, or shall 
 combine, conspire, or confederate with any other person or persons on 
 board to make such revolt or mutiny, or shall solicit, incite, or stir up any 
 other or others of the crew to disobey or resist the lawful orders of the 
 master, or other officer of such ship or vessel, or to x'efuse or neglect their 
 proper duty on board thereof, or to betray their proper trust therein, or 
 shall assemble with others in a tumultuous and mutinous manner, or 
 make a riot on board thereof, or shall unlawfully confine the master, or 
 other commanding officer thereof, every such person so offending shall, on
 
 APPENDIX. 593 
 
 conviction thereof, be punished by fine, not exceeding one thousand dol- 
 lars, or by imprisonment not exceeding five years, or by both, according 
 to the nature and aggravation of the offence. 
 
 Sec. 3. And he it further enacted. That if any master or other officer, 
 of any American ship or vessel on the high seas, or on any other waters 
 within the admiralty and maritime jurisdiction of the United States, shall 
 from malice, hatred, or revenge, and without justifiable cause, beat, Avound, 
 or imprison, any one or more of the crew of such ship or vessel, or with- 
 hold from them suitable food and nourishment, or inflict upon them any 
 cruel and unusual punishment, every such person so offending shall, on 
 conviction thereof, be punislied by fine, not exceeding one thousand dol- 
 lars, or by imprisonment not exceeding five years, or by both, according 
 to the nature and aggravation of the offence. 
 
 Sec. 4. And he it further enacted, That whenever any person indicted 
 for any offence against the United States, whether capital or otherwise, 
 shall upon his arraignment stand mute, or will not plead or answer there- 
 to, it shall be the duty of the court to enter the plea of not guilty on his 
 behalf, in the same manner as if he had pleaded not guilty thereto. And 
 when the party shall plead not guilty, or such plea shall be entered as 
 aforesaid, the cause shall be deemed at issue, and shall, without further 
 form or ceremony, be tried by a jury. And in all trials in capital cases, 
 if tlie party indicted shall peremptorily challenge above the number of 
 jurors allowed by law, such excess of challenges shall be disallowed by 
 the court, and the cause shall proceed for trial in the same manner as if 
 the same [said] challenges had not been made. 
 
 Sec. 5. Aiid he it further enacted, That whenever any person shall be 
 convicted of any offence against the United States which is punishable by 
 fine and imprisonment, or by either, it shall be lawful for the court by 
 which the sentence is passed, to order the sentence to be executed in any 
 house of correction, or house of reformation for juvenile delinquents 
 within the State or district where such court is holden, the use of which 
 shall be allowed and authorized by the legislature of the State for such 
 purpose. And the expenses attendant upon the execution of such sen- 
 tence shall be paid by the United States. 
 
 ACT OF 183C, CHAPTER LV. (5 U. S. Stats, at Large, 16). 
 
 An Act in addition to the Act of the tioenty fourth of May, one thousand eight hundred and 
 tiventy-eif/ht, entitled "An Act to authorize the Licensing of Vessels to be employed in the 
 Mackerel Fishery." 
 
 Be it enacted by the Senate and House of Representatives of the United 
 States of America in Congress assembled, That vessels duly licensed 
 
 50*
 
 594 APPENDIX. 
 
 under the provisions of "An act to authorize the licensing of vessels to 
 be employed in the mackerel fishery," passed May twenty-fourth, one 
 thousand eight hundred and twenty-eight, shall not be deemed or taken 
 to be liable to the forfeitures imposed by the fifth and thirty-second sec- 
 tions of the act of Congress, approved the eighteenth day of February, 
 one thousand seven hundred and ninety-three, entitled " An act for enrol- 
 ling and licensing ships or vessels to be employed in the coasting trade 
 and fisheries, and for regulating the same," in consequence of any such 
 vessel, whilst licensed as aforesaid, having been engaged in catching cod, 
 or fish of any other description whatever, Provided, however, That this 
 act shall not be deemed or considered as authorizing or entitling the 
 owner or owners of any vessel licensed for the mackerel fishery, to 
 receive the bounty allowed by law to vessels employed in the cod 
 fishery. 
 
 ACT OF 1837, CHAPTER XXI. (5 U. S. Stats, at Large, 153). 
 
 An Act to provide for the Enlistment of Boys for the Naval Service, and to extend the term 
 of the Enlistment of Seamen. 
 
 Section 1. Be it enacted hy the Senate and House of Representatives 
 of the United States of America in Congress assembled, That it shall be 
 lawful to enlist boys for the navy, with the consent of their parents or 
 guardians, not being under thirteen, nor over eighteen years of age, to 
 serve until they shall arrive at the age of twenty-one years ; and it shall 
 be lawful to enlist other persons for the navy, to serve for a period not 
 exceeding five years, unless sooner discharged by direction of the Presi- 
 dent of the United States; and so much of an act entitled "An act to 
 amiend the act entitled ' An act to amend the act authorizing the employ- 
 ment of an additional naval force,' " approved fifteenth May, one thousand 
 eight hundred and twenty, as is inconsistent with the provisions of this 
 act, shall be, and is hereby repealed. 
 
 Sec. 2. And be it further enacted, That when the time of service of 
 any person enlisted for the navy, shall expii-e, Avhile he is on board any 
 of the public vessels of the United States, employed on foreign service, 
 it shall be the duty of the commanding officer of the fleet, squadron, or 
 vessel, in which such person may be, to send him to the United States 
 in some public or other vessel, unless his detention shall be essential to 
 the public interests, in which case the said officer may detain him until 
 the vessel in which he shall be serving shall return to the United States; 
 and it shall be the duty of said officer, immediately to make report to the 
 navy department, of such detention and the causes thereof.
 
 APPENDIX. 595 
 
 Sec. 3. And be it further enacted, That such persons as may be 
 detained after the expiration of their enlistment, under the next pre- 
 ceding section of this act, shall be subject, in all respects, to the laws 
 and regulations for the government of the navy, until their return to 
 the United States, and all such persons as shall be so detained, and all 
 such as shall voluntarily reiinlist to serve until the return of the vessel 
 in which they shall be serving, and their regular discharge therefrom 
 in the United States, shall, while so detained and while so serving 
 under their reenlistment, receive an addition of one fourth to their 
 former pay. 
 
 ACT or 1837, CHAPTER XXII. (3 U. S. Stats, at Large, 153). 
 An Act concerning Pilots. 
 
 Be it enacted hy the Senate and House of Representatives of the 
 United States of America in Congress assembled, That it shall and may 
 be lawful for the master or commander of any vessel coming into or 
 going out of any port situate upon waters, which are the boundary be- 
 tween two States, to employ any pilot duly licensed or authorized by the 
 laws of either of the States bounded on the said waters, to pilot said 
 vessel to or from said port ; any law, usage, or custom, to the contrary 
 notwithstandin":. 
 
 ACT OF 1838, CHAPTER CXCI. (5 U. S. Stats, at Large, 304). 
 
 An Act to provide for the better security of the Lives of Passengers on board of Vessels pro- 
 pelled in whole or in part by Steam. 
 
 Section 1. Be it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That it shall be the 
 duty of all owners of steamboats, or vessels propelled in whole or in pai't 
 by steam, on or before the first day of October, one thousand eight hun- 
 dred and thirty-eight, to make a new enrolment of the same, under the 
 existing laws of the United States, and take out from the collector or sur- 
 veyor of the port, as the case may be, where such vessel is enrolled, a 
 new license, under such conditions as are now imposed by law, and as 
 shall be imposed by this act. 
 
 Sec. 2. And be it further enacted, That it shall not be lawful for the 
 owner, master, or captain of any steamboat or vessel propelled in whole 
 or in part by steam, to transport any goods, wares, and merchandise, or 
 passengers, in or upon the bays, lakes, rivers, or other navigable waters
 
 596 APPENDIX. 
 
 of the United States, from and after the said first day of October, one 
 thousand eight hundred and thirty-eight ; Avithout having first obtained, 
 from the proper officer, a license under the existing hivvs, and without 
 having comphed with tlie conditions imposed by this act; and for each 
 and every violation of this section, the owner or owners of said vessel 
 shall forfeit and pay to the United States the sum of five hundred dollars, 
 one half for the use of the informer; and for which sum or sums the 
 steamboat or vessel so engaged shall be liable, and may be seized and 
 pi'oceeded against summarily, by way of libel, in any district court of the 
 United States having jurisdiction of the offence. 
 
 Sec. 3. And be it further enacted, That it shall be the duty of the 
 district judge of the United States, within whose district any ports of 
 entry or delivery may be, on the navigable waters, bays, lakes, and rivers 
 of the United States, upon the application of the master or owner of any 
 steamboat or vessel propelled in whole or in part by steam, to appoint, 
 from time to time, one or more persons skilled and competent to make 
 inspections of such boats and vessels, and of the boilei-s and machinery 
 employed in the same, who shall not be interested in the manufacture of 
 steam engines, steamboat boilers, or other machinery belonging to steam 
 vessels, whose duty it shall be to make such inspection when called upon 
 for that purpose, and to give to the owner or master of such boat or ves- 
 sel duplicate certificates of such inspection ; such 2iersons, before entering 
 upon the duties enjoined by this act, shall make and subscribe an oath or 
 affirmation before said district judge, or other officer duly authorized to 
 administer oaths, well, faithfully, and impartially to execute and perform 
 the services herein required of them. 
 
 Sec. 4. Arid be it further enacted, That the person or persons who 
 shall be called upon to inspect the hull of any steamboat or vessel, under 
 the provisions of this act, shall, after a thorough examination of the 
 same, give to the owner or master, as the case may be, a certificate, in 
 which shall be stated the age of the said boat or vessel, when and where 
 originally built, and the length of time the same has been running. 
 And he or they shall also state whether, in his or their opinion, the said 
 boat or vessel is sound, and in all respects sea-worthy, and fit to be used 
 for the transportation of freight or passengers ; for which service, so 
 performed upon each and every boat or vessel, the inspectors shall each 
 be paid and allowed by said master or owner applying for such inspec- 
 tion, the sum of five dollars. 
 
 Sec. 5. And be it further enacted, That the person or persons who 
 shall be called upon to inspect the boilers and machinery of any steam- 
 boat or vessel, imder the provisions of this act, shall, after a thorough 
 examination of the same, make a certificate, in which he or they shall 
 state bis or their opinion whether said boilers ax*e sound and fit for use,
 
 APPENDIX. 597 
 
 together with the age of said boilers ; and duplicates thereof shall be 
 delivered to the owner or master of such vessel, one of which it shall be 
 the duty of the said master and owner to deliver to the collector or sur- 
 veyor of the port whenever he shall apply for a license, or for a renewal 
 of a license ; the other he shall cause to be posted up, and kept in some 
 conspicuous part of said boat, for the information of the public ; and for 
 each and every inspection so made, each of the said inspectors shall be 
 paid by the said master or owner applying, the sum of five dollars. 
 
 Sec. 6. And be it further enacted, That it shall be the duty of the 
 owners and masters of steamboats to cause the inspection provided under 
 the fourth section of this act to be made at least once in every twelve 
 months ; and the examination required by the fifth section, at least once 
 in every six months ; and deliver to the collector or surveyor of the port 
 where his boat or vessel has been enrolled or licensed, the certificate of 
 such inspection ; and, on a failure thereof, he or they shall forfeit the 
 license granted to such boat or vessel, and be subject to the same penalty 
 as though he had run said boat or vessel without having obtained such 
 license, to be recovered in like manner. And it shall be the duty of the 
 owners and masters of the steamboats licensed in pursuance of the pro- 
 visions of this act, to employ on board of their respective boats a com- 
 petent number of experienced and skilful engineers, and, in case of neg- 
 lect to do so, the said owners and masters shall be held responsible for 
 all damages to the property of any passenger on board of any boat 
 occasioned by an explosion of the boiler or any derangement of the 
 engine or machinery of any boat. 
 
 Sec. 7. And he it further enacted. That whenever the master of any 
 boat or vessel, or the person or persons charged with navigating said 
 boat or vessel, which is propelled in whole or in part by steam, shall stop 
 the motion or headway of said boat or vessel, or when said boat or ves- 
 sel shall be stopped for the purpose of discharging or taking in cargo, 
 fuel, or passengers, he or they shall open the safety-valve, so as to keep 
 the steam down in said boiler as near as practicable to what it is when 
 the said boat or vessel is under headway, under the penalty of two hun- 
 dred dollars for each and every offence. 
 
 Sec. 8. And he it further enacted, That it shall be the duty of the 
 owner and master of every steam vessel engaged in the transportation 
 of freight or passengers, at sea or on the lakes, Champlain, Ontario, Erie, 
 Huron, Superior, and Michigan, the tonnage of which vessel shall not 
 exceed two hundred tons, to provide and to carry with the said boat or 
 vessel, upon each and every voyage, two long-boats or yawls, each of 
 which shall be competent to carry at least twenty persons ; and where 
 the tonnage of said vessel shall exceed two hundred tons, it shall be the 
 duty of the owner and master to provide and carry, as aforesaid, not less
 
 598 APPENDIX. 
 
 than three long-boats or yawls, of the same or larger dimensions ; and 
 for every failure in these particulars, the said master and owner shall for- 
 feit and pay three hundred dollars. 
 
 Sec. 9. A7id be it further enacted, That it shall be the duty of the master 
 and owner of every steam vessel employed on either of the lakes men- 
 tioned in the last section, or on the sea, to provide, as a part of the neces- 
 sary furniture, a suction hose and fire-engine and hose suitable to be 
 worked on said boat in case of fire, and cai'ry the same upon each and 
 every voyage, in good order ; and that iron rods or chains shall be cm- 
 ployed and used in the navigating of all steamboats, instead of wheel or 
 tiller ropes ; and for a failure to do which, they, and each of them, shall 
 forfeit and pay the sum of three hundred dollars. 
 
 Sec. 10. And be it further enacted, That it shall be the duty of the 
 master and owner of every steamboat, running between sunset and sunrise, 
 to carry one or more signal lights, that may be seen by other boats navi- 
 gating the same waters, under the penalty of two hundred dollars. 
 
 Sec. 11. And be it further enacted, That the penalties imposed by this 
 act may be sued for and recovered in the name of the United States, in 
 the district or circuit court of such district or circuit where the offence 
 shall have been committed, or forfeiture incurred, or in which the owner 
 or master of said vessel may reside, one half to the use of the informer, 
 and the other to the use of the United States ; or the said penalty may be 
 prosecuted for by indictment in either of the said courts. 
 
 Sec. 12. And be itfu-ther enacted. That every captain, engineer, pilot, 
 or other person employed on board of any steamboat or vessel propelled 
 in whole or in part by steam, by whose misconduct, negligence, or inat- 
 tention to his or their respective duties, the life or lives of any person or 
 persons on board said vessel may be destroyed, shall be deemed guilty of 
 manslaughter, and, upon conviction thereof before any circuit court in the 
 United States, shall be sentenced to confinement at hard labor for a period 
 not more than ten years. 
 
 Sec. 13. And be it further enacted. That in all suits and actions against 
 proprietors of steamboats, for injuries arising to person or property from 
 the bursting of the boiler of any steamboat, or the collapse of a flue, or 
 other injurious -escape of steam, the fact of such bursting, collapse, or in- 
 jurious escape of steam, shall be taken as faW. prima facie evidence, sufl[i- 
 cient to charge the defendant or those in his employment, with negligence, 
 until he shall show that no negligence has been committed by him or those 
 in his employment.
 
 APPENDIX. 599 
 
 ACT OF 1840, CHAPTEE VI. (5 U. S. Stats, at Large, 370). 
 
 An. Act to cancel the bonds given to secure duties upon Vessels and their Cargoes, employed in 
 the Whale Fishery, and to make registers, lawful papers for such Vessels. 
 
 Section 1. Be it enacted by the Senate and House of Representatives 
 of the United States of America in Congress assembled, That all vessels 
 which have cleared, or hereafter may clear, with registers for the purpose 
 of engaging in the whale fishery, shall be deemed to have lawful and 
 sufficient papers for such voyages, securing the privileges and rights of 
 registered vessels, and the privileges and exemptions of vessels enrolled 
 and licensed for the fisheries ; and all vessels which have been enrolled 
 and licensed for like voyages shall have the same privileges and measure 
 of protection as if they had sailed with registers if such voyages are com- 
 pleted or until they are completed. 
 
 Sec. 2. And be it further enacted, That all the provisions of the first 
 section of the act, entitled " An act supplementary to the act concerning 
 consuls and vice-consuls, and for the further protection of American sea- 
 men," passed on the twenty-eighth day of February, Anno Domini 
 eighteen hundred and three, shall hereafter apply and be in full force as 
 to vessels engaged in the whale fishery in the same manner and to the 
 same extent as the same is now in force and applies to vessels bound on 
 a foreign voyage. 
 
 Sec. 3. And be it further enacted. That all forfeitures, fees, duties, and 
 charges of every descri^^tion required of the crews of such vessels, or 
 assessed upon the vessels or cargoes, being the produce of such fishery, 
 because of a supposed insufficiency of a register to exempt them from 
 such claims, are hereby remitted ; and all bonds given for such cause are 
 hereby cancelled, and the secretary of the treasury is hereby required to 
 refund all such moneys as have been, or which may be, paid into the 
 treasury, to the rightful claimants, out of the revenues in his hands. 
 
 ACT OF 1840, CHAPTER XLVIII. (5 U. S. Stats, at Large, 394). 
 
 An Act in addition to the several Acts regulating the Shipment and Discharge of Seamen, 
 and the duties of Consuls. 
 
 Be it enacted by the Senate and House of Representatives of the United 
 States of America in Congress assembled. As follows : 
 
 First. The duplicate list of the crew of any vessel bound on a foreign 
 voyage, made out pursuant to the act of February twenty-eighth, eighteen
 
 600 APPENDIX. 
 
 hundred and three, shall be a fair copy in one uniform handwriting, with- 
 out erasure or interlineation. 
 
 Second. It shall be the duty of the owners of every such vessel to 
 obtain from the collector of the customs of the district from which the 
 clearance is made, a true and certified copy of the shipping articles, con- 
 taining the names of the crew, which shall be written in a uniform hand, 
 without erasures or interlineations. 
 
 Third. These documents which shall be deemed to contain all the con- 
 ditions of contract with the crew as to their service, pay, voyage, and all 
 other things, shall be produced by the master, and laid before any consul, 
 or other commercial agent of the United States, whenever he may deem 
 their contents necessary to enable him to discharge the duties imposed 
 upon him by law toward any mariner applying to him for his aid or 
 assistance. 
 
 Fourth. All interlineations, erasures, or writing in a hand different 
 from that in which such duplicates were originally made, shall be deemed 
 fraudulent alterations, working no change in such papers, unless satisfac- 
 torily explained in a manner consistent with innocent purposes and the 
 provisions of law which guard the rights of mariners. 
 
 Fifth. Any consul of the United States, and in case there is none resi- 
 dent at a foreign port, or he is unable to discharge his duties, then any 
 commercial agent of the United States authorized to perform such duties, 
 may, upon the application of both the master and any mariner of the 
 vessel under his command, discharge such mariner, if he thinks it expe- 
 dient, without requiring the payment of three months' wages, under the 
 provisions of the act of the twenty-eighth of February, eighteen hundred 
 and three, or any other sum of money. 
 
 Sixth. Any consul, or other commercial agent, may also, on such joint 
 application, discharge any mariner on such terms as will, in his judgment, 
 save the United States from the liability to support such mariner, if 
 the master gives his voluntary assent to such terms, and conforms 
 thereto. 
 
 Seventh. When a mariner is so discharged, the oflacer discharging him 
 shall make an official entry thereof upon the list of the crew and the 
 shipping articles. 
 
 Eighth, Whenever any master shall ship a mariner in a foreign port, 
 he shall forthwith take the list of his crew and the duplicate of the ship- 
 ping, articles to the consul, or person who discharges the duties of the 
 office at that port, who shall make the proper entries thereon, setting forth 
 the contract, and describing the person of the mariner ; and thereupon 
 the bond originally given for the return of the men shall embrace each 
 person so shipped. 
 
 Ninth. When any mariner shall complain that the voyage is continued
 
 APPENDIX. 601 
 
 contrary to his agreement, or that he has fulfilled his contract, the consul, 
 or other commercial agent performing like duties, may examine into the 
 same by an inspection of the articles of agreement ; and if on the face 
 of. them he finds the complaint to be well founded, he sliall discharge the 
 mariner, if he desires it, and require of the ma^er an advance, beyond 
 the lawful claims of such mariner, of three months' wages, as provided in 
 the act of February twenty-eighth, eighteen hundred and three ; and in 
 case the lawful claims of such mariner are not paid upon his dischai'ge, 
 the arrears shall from that time bear an interest of tw^enty per centum : 
 Provided, hoivever, If the consul or other commercial agent shall be 
 satisfied the contract has expired, or the voyage been protracted by cir- 
 cumstances beyond the control of the master, and without any design on 
 his part to violate the articles of shipment, then he may, if he deems it just, 
 discharge the mariner without exacting the three months' additional pay. 
 
 Tenth. All shipments of seamen, made contrary to the provisions of 
 this and other acts of Congress, shall be void ; and any seaman so shipped 
 may leave the service at any time, and demand the highest rate of wages 
 paid to any seaman shipped for the voyage, or the sum agreed to be given 
 him at his shipment. 
 
 Eleventh. It shall be the duty of consuls and commercial agents to re- 
 claim deserters and discountenance insubordination by every means within 
 their power ; and where the local authorities can be usefully employed for 
 that purpose, to lend their aid and use their exertions to that end in the 
 most effectual manner. 
 
 Twelfth. If the first officer, or any officer, and a majority of the crew 
 of any vessel shall make complaint in writing that she is in an unsuitable 
 condition to go to sea, because she is leaky, or insuihciently supplied with 
 sails, rigging, anchors, or any other equipment, or that the crew is insuffi- 
 cient to man her, or that her provisions, stores, and supplies are not, or 
 have not been, during the voyage, sufficient and wholesome, thereupon, in 
 any of these or like cases, the consul or commercial agent who may dis- 
 cliarge any duties of a consul shall appoint two disinterested, competent, 
 practical men, ac(piainted with maritime affairs, to examine into the 
 causes of complaint, who shall in their report state what defects and de- 
 ficiencies, if any, they find to be well founded, as well as what, in their 
 judgment, ought to be done to put the vessel in order for the continuance 
 of her voyage. 
 
 Thirteenth. The inspectors so appointed shall have full power to ex- 
 amine the vessel and whatever is aboard of her, so far as is pertinent to 
 their inquiry, and also to hear and receive any other proofs which the 
 ends of justice may require, and if, upon a Tiew of the whole proceed- 
 ings, the consul, or other commercial agent shall be satisfied therewith, 
 he may approve the whole or any part of the report, and shall certify 
 
 VOL. I. 51
 
 602 APPENDIX. 
 
 sucli approval, and if he dissents, sliall also certify his reasons for so dis- 
 senting. 
 
 Fourteenth. The inspectors in their report shall also state whether, in 
 their opinion, the vessel was sent to sea unsuitably provided in any impor- 
 tant or essential particular, by neglect or design, or through mistake or 
 accident, and in case it was by neglect or design, and the consul or other 
 commercial agent approves of such finding, he shall discharge such of the 
 crew as require it, each of whom shall be entitled to three months' pay 
 in addition to his wages tq the time of discharge ; but, if in the opinion 
 of the inspectors the defects or deficiencies found to exist have been the 
 result of mistake or accident, and could not, in the exercise of ordinary 
 care, have been known and provided against before the sailing of the 
 vessel, and the master shall, in a reasonable time, remove or remedy the 
 causes of complaint, then the crew shall remain and discharge their 
 duty ; otherwise they shall, upon their request, be discharged, and 
 receive each one month's wages in addition to the pay up to the time of 
 discharge. 
 
 Fifteenth. The master shall pay all such reasonable charges in the 
 premises as shall be officially cei'tified to him under the hand of the con- 
 sul or other commercial agent, but in case the inspectors report that the 
 complaint is without any good and sufficient cause, the master may retain 
 from the wages of the complainants, in proportion to the pay of each, the 
 amount of such charges, with such reasonable damages for detention on 
 that account as the consul or other commercial agent directing the inquiry 
 may officially certify. 
 
 Sixteenth. The crew of any vessel shall have the fullest liberty to lay 
 their complaints before the consul or commercial agent in any foreign 
 port, and shall in no respect be restrained or hindered therein by the 
 master or any officer, unless some sufficient and valid objection exist 
 against their landing; in which case, if any mariner desire to see the 
 consul or commercial agent, it shall be the duty of the master to acquaint 
 him with it forthwith ; stating the reason why the mariner is not permit- 
 ted to land, and that he is desired to come on board ; whereupon it shall 
 be the duty of such consul or commercial agent to repair on board and 
 inquire into the causes of the complaint, and to proceed thereon as this 
 act directs. 
 
 Seventeenth, In all cases where deserters are apprehended, the consul 
 or commercial agent shall inquire into the facts ; and, if satisfied that the 
 desertion was caused by unusual or cruel treatment, the mariner shall be 
 discharged, and receive, in addition to his wages to the time of the dis- 
 charge, three months' pay ;' and the officer discharging iiim shall enter 
 upon the crew-list and shipping articles the cause of discharge, and the
 
 APPENDIX. 60o 
 
 particulars in which the cruehy or unusual treatment consi:>ted, and sub- 
 scribe his name thereto officially. 
 
 Eighteenth. If any consul or commercial agent shall neglect or omit to 
 perform, seasonably, the duties hereby imposed upon him, or shall be 
 guilty of any malversation or abuse of power, he shall be liable to any 
 injured person for all damage occasioned thereby ; and for all malversa- 
 tion and corrupt conduct in office, he shall be liable to indictment, and, on 
 conviction by any court of competent jurisdiction, shall be fined not less 
 than one nor more than ten thousand dollars, and be imprisoned not less 
 than one nor more than five years. 
 
 Nineteenth. If any master of a vessel shall proceed on a foreign voy- 
 age without the documents herein required, or refuse to produce them 
 when required, or to perform the duties imposed by this act, or shall 
 violate the provisions thereof, he shall be liable to each and every 
 individual injured thereby, in damages, and shall, in addition thereto, 
 be liable to pay a fine of one hundred dollars for each and every 
 offence, to be recovered by any person suing therefor in any court of the 
 United States in the district where such delinquent may reside or be 
 found. 
 
 Twentieth. It shall be the duty of the boarding officer to report all vio- 
 lations of this act to the collector of the port where any vessel may arrive, 
 and the collector shall report the same to the secretary of the treasury 
 and to the attorney of the United States in his disti'ict. 
 
 Twenty-first. This act shall be in force from and after the first day of 
 October next ; and shall not apply to vessels which shall have sailed from 
 ports of the United States before that time. 
 
 ACT OF 1842, CHAPTER CLXXXVIII. (5 U. S. Stats, at Large, 516). 
 
 An Act farther supplementary to an Act, entitled " An Act to establish the Judicial Courts 
 oj the United States," passed the twenty-fourth of September, seventeen hundred and eighty- 
 nine. 
 
 Section 1. Be it enacted hy the Senate and House of HejJresentatives 
 of the United States of America in Congress assembled, That the commis- 
 sioners who now are, or hereafter may be, appointed by the circuit courts 
 of the United States to take acknowledgments of bail and affidavits, and 
 also to take depositions of witnesses in civil causes, shall and may exer- 
 cise all the powers that any justice of the peace, or other magistrate, of 
 any of the United States may now exercise in respect to offenders for any 
 crime or offence against the United States, by arresting, imprisoning, or 
 bailing the same, under and by virtue of the thirty-third section of the act
 
 604 APPENDIX. 
 
 of the twentv-tburth of September, Anno Domini seventeen hundred and 
 eightj-niue, entitled " An act to establish the judicial courts of the United 
 States;" and who shall and maj exercise all the powers that any judge 
 or justice of the peace may exercise under and in virtue df the sixth sec- 
 lion of the act passed the twentieth of July, Anno Domini seventeen hun- 
 dred and ninety, entitled " An act for the government and regulation of 
 seamen in the merchant service." 
 
 ACT OF 1S42,, CHAPTER CCLXVII. (5 U. S. Stats, at Large, 546). 
 An Act to establish and regulate the Xavy Ration. 
 
 Section 1. Be it enacted hy the Senate and House of Representatives 
 of the United States of America in Congress assembled, That the navy 
 ration shall consist of the following daily allowance of provisions for each 
 person : 
 
 One pound of salted pork, with half a pint of peas or beans ; or one 
 pound of salted beef, with half a pound of flour, and a quarter of a 
 pound of raisins, dried apples, or other dried fruits ; or one pound of salt 
 beef with half a pound of rice, two ounces of butter, and two ounces of 
 cheese ; together with fourteen ounces of biscuit, one quarter of an ounce 
 of tea, or ounce of coffee, or one ounce of cocoa ; two ounces of sugar, 
 and one gill of spirits ; and of a weekly allowance of half a pound of 
 pickles or cranberries, hah" a pint of moh\sses, and half a pint of vinegar. 
 
 Sec. 2. And be it further enacted, That fresh meat may be substituted 
 for salted beef or pork, and vegetables or sour-crout for the other articles 
 usually issued with the salted meats, allowing one and a quarter pounds 
 of fresh meat for one pound of salted beef or pork, and regulating the 
 quantity of vegetables or sour-crout so as to equal the value of those 
 articles for which they may be substituted. 
 
 Sec. 3. Ajid be it further enacted, That, should it be necessary to 
 vary the above-described daily allowance, it shall be la^\-ful to substitute 
 one pound of soft bread, or one pound of flour, or half a pound of rice, 
 for fourteen ounces of biscuit ; half a pint of wine for a gill of spirits ; 
 half a pound of rice for half a pint of beans or peas ; half a pint of 
 beans or peas for half a pound of rice. "\Yhen it may be deemed expe- 
 dient by the President of the United States, secretary of the nav}-, com- 
 mander of a fleet or squadron, or of a single ship when not acting under 
 the authority of another officer on foreign service, the articles of butter^ 
 cheese, raisins, dried apples, or other dried fruits, pickles, and molasses, 
 may be substituted for each other and for spirits : Provided, The article 
 substituted shall not exceed in value the article for which it may be
 
 APPEXDES- ' 605 
 
 issued, according to the scale of prices which is or may be established for 
 the same. • 
 
 Sec. 4. And he it further enacted^ That in cases of necessity, the daily 
 allowance of provisions may be diminished or varied by the discretion 
 of the senior officer present in command, but payment shall be made to 
 the persons whose allowance shall be thus diminished, according to the 
 scale of prices which is or may be established for the same : but a com- 
 mander who shall thus make a diminution or variation shall report to his 
 commanding officer or to the navy department, the necessity for the 
 same, and give to the purser written orders sjjecifying particularly the 
 diminution or reduction which is to be made. 
 
 Sec. o. And he it further enacted, That no commissioned officer or 
 midshipman, or any person under twenty-one years of age, shall be 
 allowed to draw the spirit part of the daily ration, and all other persons 
 shall be permitted to relinquish that part of their ration, under such 
 restrictions as the President of the United .States may authorize : and to 
 every person who, by this section, is prohibited from drawing, or who 
 may relinquish, the spirit part of his ration, there shall be paid in lieu 
 thereof, the value of the same in money, according to the prices which 
 are or may be established for the same. 
 
 Sec. 6. And he it further enacted. That the provisions of this act shall 
 go into effect in the United States, on the first day of the succeeding 
 quarter after it becomes a law, and in vesseb abroad, on the first day of 
 the succeeding quarter after its official receipt : and any acts and parts of 
 acts which may be contrary to, or inconsistent with, the provisions of this 
 act, shall be and are hereby repealed. 
 
 ACT or 1S43, CHAPTER XLIX. ,5 U. S. Stats, at Large, 502). 
 
 An Act amendatory of " An Ad for the Rdirf of Sidt and Disabled Seamen." 
 
 Be it enacted hy the Senate and House of Representatives of the United 
 States of America in Congress assembled. That the provisions and pen- 
 alties of the act of the sixteenth of July, one thousand seven hundred 
 and ninety-eight, entitled "An act for the relief of sick and disabled 
 seamen," be, and the same hereby are, extended to the masters, owners, 
 and seamen of registered vessels employed in carrying on the coasting 
 trade ; and the secretary of the treasury is authorized and directed to 
 issue such instructions to the collectors of the various ports as shall 
 secure the collection (jf hospital money from said seamen, masters, and 
 owners. 
 
 51*
 
 606 APPENDIX. 
 
 ACT OF 1843, CHAPTER XCIV. (5 U. S. Stats, at Large, 62G). 
 
 An Act lo modify the Act entitled " An Act to provide for the better security of the Lives of 
 Passengers on hoard of Vessels propelled in whole or in part by Steam," approved July 
 seventh, ciyhteen hundred aud thirty-eiyht. 
 
 Section 1. ]5e it enacted hy the Senate and House of Representatives of 
 the United States of America in Congress assembled, That every boat or 
 Tessel which existing laws require to be registered, and which is pro- 
 pelled in whole or in part by steam, shall be provided with such addi- 
 tional apparatus or means as, in the opinion of the inspector of steam- 
 boats, shall be requisite to steer the boat or vessel, to be located in such 
 part of the boat or vessel as the inspector may deem best to enable the 
 officers and crew to steer and control the boat or vessel, in case the pilot 
 or man at the wheel is driven from the same by fire ; and no boat or 
 vessel, exclusively propelled by steam, shall be registered, after the pas- 
 sage of this act, unless the owner, master, or other proper person, shall 
 file with the collector, or other proper officer, the certificate of the in- 
 spector, stating that suitable means have been provided to steer the boat 
 or vessel, in case the pilot or man at the wheel is driven therefrom by 
 fire. 
 
 Sec. 2. And be it further enacted, That it shall be lawful in all ves- 
 sels or boats propelled in whole or in part by steam, and which shall be 
 provided with additional apparatus or means to steer the same, as 
 required by the first section of this act, to use wheel or tiller ropes, 
 composed of hemp or other good and sufficient material around the 
 barrel or axle of the wheel, and to a distance not exceeding twenty-two 
 feet therefrom, and also in connecting the tiller or rudder yoke with 
 iron rods or chains used for working the rudder : Provided, That no 
 more rope for this purpose shall be used than is sufficient to extend 
 from the connecting points of the tiller or rudder yoke placed in any 
 working position beyond the nearest blocks or rollers, and give suffi- 
 cient play to work the ropes on sucli blocks or rollers : And provided, 
 further. That there shall be chains extending the whole distance of the 
 ropes, so connected with the tiller or rudder yoke, and attached or 
 fastened to the tiller or rudder yoke, and the iron chains or rods extend- 
 ing towards the wheel, in such manner as will take immediate effect, 
 and work the rudder in case the ropes are burnt or otherwise rendered 
 useless. 
 
 Sec. 3. And be it farther enacted, That the master and owner, and 
 all others interested in vessels navigating Lals^s Champlain, Ontario, 
 Erie, Huron, Superior, and Michigan, or any of them, and which are 
 jiropelled by sails aud Erickson's propeller, and used exclusively in car
 
 APPENDIX. 607 
 
 rying freight, shall from and after the passage of this act, be exempt 
 from liability or fine for failing to provide, as a part of the necessary 
 furniture of such vessel, a suction hose and fire engine and hose suitable 
 to be worked on such vessel in case of fire, or more than one long boat 
 or yawl. 
 
 Sec. 4. And be it farther enacted, That it shall be lawful for the court 
 before which any suit, information, or indictment is or shall be pending 
 for the violation, before the passage of this act, of so much of the ninth 
 section of the act aforesaid as requires " that iron rods or chains shall be 
 employed and used in the navigation of all steamboats, instead of wheel 
 and tiller ropes," to order such suit, information, or indictment to be dis- 
 continued, on such terms as to costs as the court shall judge to be just 
 and reasonable : Provided, That the defendant or defendants in such 
 prosecution shall cause it to appear, by affidavit or otherwise, to the satis- 
 faction of the court, that he or they had failed to use iron rods or chains 
 in the navigation of his or their boat or boats, from a well-grounded ap- 
 prehension that such rods or chains could not be emploj'ed for the pj|r- 
 pose aforesaid with safety. 
 
 Sec. 5. And he it further enacted, That in execution of the authority 
 vested in him by the second section of the joint resolution "authorizing 
 experiments to be made for the purpose of testing Samuel Colt's sub- 
 marine battery and for otj|er purposes," approved August thirty-first, one 
 thousand eight hundred and forty-two, the secretary of the navy shall 
 appoint a board of examiners, consisting of three persons, of thorough 
 knowledge as to the structure and use of the steam-engine, whose duty 
 it shall be to make experimental trials of such inventions and plans de- 
 signed to prevent the explosion of steam boilers and collapsing of flues 
 as they may deem worthy of examination, and report the result of their 
 experiments, with an expression of their opinion as to the relative merits 
 and efficacy of such inventions and plans, which report the secretary 
 shall cause to be laid before congress, at its next session. It shall also 
 be the duty of said examiners to examine and report the relative sti*ength 
 of copper and iron boilers of equal thickness, and what amount of steam 
 to the square inch each, when sound, is capable of working with safety ; 
 and whether hydrostatic pressure, or what other plan is best for testing 
 the strength of boilers under the inspection laws; and what limitations 
 as to the force or pressure of steam to the square inch, in proportion to 
 the ascertained capacity of a boiler to resist, it would be propei- to estab- 
 lish by law for the more certain prevention of explosions. 
 
 Sec. G. And be it further enacted. That so much of tlie act afore- 
 said as is inconsistent with the provisions of this act shall be, and the 
 same is hereby, repealed.
 
 608 APPENDIX. 
 
 ACT OF 1845, CHAPTER XVII. (5 U. S. Stats, at Large, 725). 
 
 An Act to amend the Act entitled " An Act to provide for the Enlistment of Boys for the 
 Naval Service, and to Extend the Term of Enlistment of Seamen." 
 
 Section 1. Be it enacted hythe Senate and House of Representatives of 
 the United States of America in Congress assembled, That,- from and after 
 the passage of this act, the provisions of the second and third sections 
 of the act entitled " An act to provide for the enlistment of boys for the 
 naval service, and to extend the term of the enlistment of seamen," ap- 
 proved March second, one thousand eight hundred and thirty-seven, 
 which authorize and provide for the detention of any person enlisted 
 for the navy, after the expiration of the enlistment, until the return of 
 such person to the United States, shall be understood and construed to 
 authorize and provide for the detention of such person until the arrival 
 of the vessel in which he shall be so detained at a port of the United 
 S^tes, and until he shall have received his regular discharge by order 
 of the secretary of the navy : Provided, That such detention shall not 
 exceed the term of thirty days from the time of the arrival of the said 
 vessel in a port of the United States. 
 
 Sec. 2. And he it further eiiacted, That the commanding officer of any 
 vessel, squadron, or fleet of the navy of the United States, when upon 
 the high seas, or in any foreign port where there is no resident consul of 
 the United States, shall be and is hereby authorized and empowered to 
 exercise all the powers of a consul in relation "to mariners of the United 
 States. 
 
 ACT OF 1848, CHAPTER XL VIII. (9 U. S. Stats, at Large, 232). 
 
 An Act extending Privileges to American Vessels engaged in a certain mentioned Trade, and 
 
 for other Purposes. 
 
 Section 1. Be it enacted by the Senate and House of Representatives 
 of the United States of America in Congress assembled, That it shall here- 
 after be lawful for any steamship or other vessel, on being duly registered 
 in pursuance of the laws of the United States, to engage in trade between 
 one port in the United States and one or more ports within the same, with 
 the privilege of touching at one or more foreign ports during the voyage, 
 and land and take in thereat merchandise, passengers, and their baggage, 
 and letters, and mails : Provided, That all such vessels shall be furnished 
 by the collectors of the ports at which they shall take in their cargoes in 
 the United States, with certified manifests, setting forth the particulars of.
 
 APPENDIX. 609 
 
 the cargoes, the marks, number of packages, by whom shipped, to whom 
 consigned, at what port to be delivered ; designating such goods as are 
 entitled to drawback, or to the privilege of being placed in warehouse ; 
 and the masters of all such vessels shall, on their arrival at any port 
 of the United States from any foreign port at which such vessel may 
 have touched, as herein provided, conform to the laws providing for the 
 delivery of manifests, of cargo, and passengers taken on board at such 
 foi-eign port, and all other laws regulating the report and entry of 
 vessels from foreign ports, and be subject to all the penalties therein pre- 
 scribed. 
 
 Sec. 2. A)id be it further enacted, That all vessels, and their cargoes, 
 engaged in the trade referred to in this act, shall become subject to the 
 provisions of existing collection and revenue laws on arrival in any port 
 in the United States : Provided, That any foreign goods, wares, or mer- 
 chandise, taken in at one port of the United States, to be conveyed in said 
 vessels to any other port within the same, either under the provisions of 
 the warehousing act of sixth August, eighteen hundred and forty-six, or 
 under the laws regulating the transportation coastwise of goods entitled to 
 drawback, as well as any goods, wares, or merchandise not entitled to 
 drawback, but on which the import duties chargeable by law shall have 
 been duly paid, shall not become subject to any import duty by reason of 
 the vessel in which they may arrive having touched at a foreign port dur- 
 ing the voyage, in pursuance of the privilege given in this act. 
 
 ACT OF 184S, CHAPTER CXLI. (9 U. S. Stats, at Large, 274). 
 
 An Act to authorize the Secretary of the Treasuri/ to license Yachts, and for other Purposes. 
 
 Section 1. J3e it enacted hy the Senate and House of Representatives 
 of the United States of America in Congress assembled, That the secre- 
 tary of the treasury is hereby authorized to cause yachts used and em- 
 ployed exclusively as pleasure vessels, and designed as models of naval 
 architecture, and now entitled to be enrolled as American vessels, to be 
 licensed on terms which will authorize them to proceed from port to port 
 of the United States without entering or clearing at the custom-house. 
 Such license shall be in such form as the secretary of the treasury may 
 prescribe : Provided, Such vessels so enrolled and licensed shall not be 
 allowed to transport merohandise or carry passengers for pay : And piro- 
 vided further, That the owner of any such vessel, before taking out such 
 license, shall give a bond, in such form and for such amount as the secre- 
 tary of the treasury shall prescribe, conditional that tlfe said vessel shall 
 not engage in any unlawful trade, nor in any way violate the revenue
 
 610 APPENDIX. 
 
 laws of the United States, and shall comply with the laws in all other 
 respects. 
 
 Sec. 2. And be it further enacted, That all such vessels shall, in all re- 
 spects, except as above, be subject to the knvs of the United States, and 
 shall be liable to seizure and forfeiture for any violation of the provisions 
 of this act. 
 
 Sec. 3. And be it further enacted, That all such licensed yachts shall 
 use a signal of the form, size, and colors prescribed by the secretary of 
 the navy, and the owners thereof shall at all times permit the naval archi- 
 tects in the employ of the United States to examine and coi)y the models 
 of said yachts. 
 
 ACT OF 1849, CHAPTER CV. (9 U. S. Stats, at Large, 382). 
 
 Regulations to he observed hy Vessels, Steamboats, <$r., navigating the Northern or North- 
 
 western Lakes. 
 
 Sec. 5. And be it further enacted, That vessels, steamboats, and pro- 
 pellers, navigating the northern and western lakes, shall, from and after 
 the thirtieth day of April next, comply with the following regulations, for 
 the security of life and property, to wit : during the night, vessels on the 
 starboard tack shall show a red light, vessels on the larboard tack a green 
 light, and vessels going off large, or before the Aviud, or at anchoi', a white 
 light ; steamboats and propellers shall carry on the stem, or as far forward 
 as possible, a triangular light, at an angle of about sixty degrees with the 
 horizon, and on the stai'board side a light shaded green, and on the lar- 
 board side red ; said lights shall be furnished wdth reflectors, &c., com- 
 plete, and of a size to insure a good and sufficient light ; and if loss or 
 damage shall occur, the owner or owners of the vessel, steamboat, or pro- 
 peller, neglecting to comply with these regulations, shall be liable to the 
 injured party for all loss or damage resulting from such neglect ; and the 
 owner or owners of any vessel failing to comply with said regulations 
 shall forfeit a penalty of one hundred dollars, which may be recovered in 
 an action of debt, to be brought by the district attorney of the United 
 States, in the name of the United States, in any court of competent juris- 
 diction. 
 
 x\CT OF 1850, CHAPTER XXVII. (9 U. S. Stats, at Large, 440). 
 
 An Act to provide for recording the Conveyances of Vessels, and for other Purposes. 
 
 Section 1. J^e it enacted by the Senate and House of Representatives 
 of the United Slates of America in Congress assembled. That no bill
 
 APPENDIX. 611 
 
 of sale, mortgage, hypothecation, or conveyance of any vessel, or part of 
 any vessel, of the United States, shall be valid against any person other 
 than the grantor or mortgagoi-, his heirs and devisees, and persons having 
 actual notice thereof; unless such bill of sale, mortgage, liyp6thecation, 
 or conveyance be recorded in the office of the collector of the customs 
 where such vessel is registered or enrolled : Provided, That the lien by 
 bottomry on any vessel created during her voyage, by a loan of money or 
 materials, necessary to repair or enable such vessel to prosecute a voy- 
 age, shall not lose its priority, or be in any way aiFected by the provisions 
 of this act. 
 
 Sec. 2. And he it further enacted, That the collectors of the customs 
 shall record all such bills of sale, mortgages, hypothecations, or convey- 
 ances, and, also, all certificates for discharging and cancelling any such 
 conveyances, in a book or books to be kept for that purpose, in the order 
 of their reception : noting in said book or books, and also on the bill of 
 sale, mortgage, hypothecation, or conveyance, the time when the same was 
 received, and shall certify on the bill of sale, mortgage, hypothecation, 
 or conveyance, or certificate of discharge or cancellation, the number of 
 the book and page where recorded ; and shall receive, for so recording 
 such instrument of conveyance, or certificate of dischai'ge, fifty cents. 
 
 Sec. 3. And be it further enacted, That the collectors of the cus- 
 toms shall keep an index of such records, inserting alphabetically the 
 names of the vendor or mortgagor, and of the vendee or mortgagee, and 
 shall permit said index and books of records to be inspected during office 
 houi's, under such reasonable regulations as they may establish, and shall, 
 when required, furnish to any person a certificate, setting forth the names 
 of the owners of any vessel registered or enrolled, the parts or propor- 
 tions owned by each (if inserted m the register or enrolment), and also 
 the material facts of any existing bill of sale, mortgage, hypothecation, or 
 other incumbrance upon such vessel,, recorded since the issuing of the 
 last register or enrolment, viz., the date, amount of such incumbi-ance, and 
 from and to whom or in whose favor made ; the collector shall receive for 
 each such certificate one dollar. 
 
 Sec. 4. Aiid he it further enacted, That the collectors of the customs 
 shall furnish certified copies of such records on the receipt of fifty cents 
 for each bill of sale, mortgage, or other conveyance. 
 
 Sec. 5. And be it further enacted, That the owner, or agent of the 
 owner of any vessel of the United States, applying to a collector of the 
 customs for a register or em-olment of a vessel, shall, in addition to the 
 oath now prescribed by law, set forth, in the oath of ownership, the part 
 or proportion of such vessel belonging to each owner, and the same shall 
 be inserted in the register or enrolment ; and that all bills of sale of 
 vessels registered or enrolled shall set forth the part of the vessel owned
 
 612 APPENDIX. 
 
 by each person selling, and the part conveyed to eacli person purchas- 
 ing. 
 
 Sec. G. And be it further enacted, That the twelfth clause or section of 
 the act entitled " An act in addition to the several acts regulating the ship- 
 ment and discharge of seamen, and the duties of consuls," approved July 
 twentieth, eighteen hundred and forty, be so amended, as that all com- 
 plaints in writing to the consuls or commercial agents as therein provided, 
 that a vessel is unseaworthy, shall be signed by the first, or the second 
 and third officers, and a majority of the crew, before the consul or com- 
 mercial agent shall be authorized to notice such complaint, or proceed to 
 appoint inspectors as therein provided. 
 
 Sec. 7. And he it further enacted, That any person, not being an owner, 
 who shall, on the high seas, wilfully, with intent to bui'n or destroy, set 
 fire to any ship or other vessel, or otherwise attempt the destruction of 
 such ship or other vessel, being the property of any citizen or citizens of 
 the United States, or procure the same to be done, with the intent afore- 
 said, and being thei'eof lawfully convicted, shall suffer imprisonment to 
 hard labor, for a term not exceeding ten years, nor less than three years, 
 according to the aggravation of the offence. 
 
 Sec. 8. And he it further enacted. That tliis act shall be in force from 
 and after the first day of October next ensuing. 
 
 ACT OF 1850, CHAPTEE LXXX. (9 U. S. Stats, at Large, 514). 
 
 An Act maldng Appropriations for the Naval Service for the year ending the thirtieth of 
 June, one thousand eight hundred andfftjj-one, and abolishing flogging in the Navy and on 
 hoard Vessels of Commerce. 
 
 For transportation of the United States mail between New York and 
 Liverpool, between New York and New Orleans, Havana and Cliagres, 
 and between Panama and some points in the Teri'itory of Oregon, eight 
 hundred and seventy-four thousand six hundred dollars : Provided, That 
 no payment shall be made for said services, except in proportion to the 
 mail service heretofore performed, or that may be hereafter performed ; 
 and that the secretary of the navy is hereby directed to make payment in 
 said proportion only : Provided, That flogging in the navy, and on board 
 vessels of commerce, be, and the same is hereby, abolished from and 
 after the passage of this act.
 
 APPENDIX. 613 
 
 ACT OF 1851, CHAPTER XLIII. (9 U. S. Stats, at Large, 635). 
 An Act to limit the Liahility of Ship-Owners, and for other Purposes. 
 
 Section 1. Be it enacted hy the Senate and House of Representatives 
 of the United States of America in Congress assembled, That no owner or 
 owners of any ship or vessel shall be subject or liable to answer for or 
 make good to any one or more person or persons any loss or damage 
 which may happen to any goods or merchandise whatsoever, which shall 
 be shipped, taken in, or put on board any such ship or vessel, by reason 
 or by means of any fire happening to or on board the said ship or vessel, 
 unless such fire is caused by the design or neglect of such owner or 
 owners : Provided, That nothing in this act contained shall prevent the 
 parties from making such contract as they please, extending or limiting 
 the liability of ship-owners. 
 
 Sec. 2. And be it further enacted, That if any shipper or shippers of 
 platina, gold, gold dust, silver, bullion, or other precious metals, coins, 
 jewelry, bills of any bank or public body, diamonds or other precious 
 stones, shall lade the same on board of any ship or vessel, without, at the 
 time of such lading, giving to the master, agent, owner or owners of the 
 ship or vessel receiving the same, a note in writing of the true character 
 and value thereof, and have the same entered on the bill of lading there- 
 for, the master and owner or owners of the said vessel shall not be liable, 
 as carriers thereof, in any form or manner. Nor shall any such master 
 or owners be liable for any such valuable goods beyond the value and 
 according to the character thereof so notified and entered. 
 
 Sec. 3. And be it further enacted, That the liability of the owner or 
 owners of any ship or vessel, for any embezzlement, loss, or destruction, 
 by the master, officers, mariners, passengers, or any other person or per- 
 sons, of any property, goods, or merchandise, shipped or put on board of 
 such ship or vessel, or for any loss, damage, or injury by collision, or for 
 any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or 
 incurred, without the privity or knowledge of such owner or owners, shall 
 in no case exceed the amount or value of the interest of such owner 
 or owners respectively, in such ship or vessel, and her freight then pend- 
 ing. 
 
 Sec. 4. And be it further enacted, That if any such embezzlement, loss, 
 or destruction, shall be suffered by several freighters or owners of goods, 
 wares, or merchandise, or any property whatever, on the same voyage, 
 and the whole value of the ship or vessel, and her freight for the voyage, 
 shall not be sufficient to make compensation to each of them, they shall 
 receive compensation from the owner or owners of the ship or vessel, in 
 proportion to their respective losses ; and for that purpose the said 
 
 VOL. I. 52
 
 614 APPENDIX. 
 
 freighters and owners of the property, and the owner or owners of the 
 ship or vessel, or any of them, may take the appropriate proceedings in 
 any court, for the purpose of appoi-tioning the sum for which the owner 
 or owners of the ship or vessel may be liable amongst the parties entitled 
 thereto. And it shall be deemed a sufficient compliance with the require- 
 ments of this act, on the part of such owner or owners, if he or they 
 shall transfer his or their interest in such vessel and freight, for the bene- 
 fit of such claimants, to a trustee, to be appointed by any court of com- 
 petent jurisdiction, to act as such trustee for the person or persons 
 who may prove to be legally entitled thereto, from and after which 
 transfer, all claims and proceedings against the owner or owners shall 
 cease. 
 
 Sec. 5. And be it further enacted, That the charterer or charterers 
 of any ship or vessel, in case he or they shall man, victual, and navigate 
 such vessel at his or their own expense, or by his or their own procure- 
 ment, shall be deemed the owner or owners of such vessel within the 
 meaning of this act ; and such ship or vessel, when so chartered, shall 
 be liable in the same manner as if navigated by the owner or owners 
 thereof. 
 
 Sec. G. And he it further enacted, That nothing in the preceding sec- 
 tions shall be construed to take away or affect the remedy to which any 
 party may be entitled, against the master, officers, or mariners, foi; or on 
 account of any embezzlement, injury, loss, or destruction of goods, wares, 
 merchandise, or other property, put on board any ship or vessel, or on 
 account of any negligence, fraud, or other malversation of such master, 
 officers, or mariners, respectively, nor shall any thing herein contained 
 lessen or take away any responsibiUty to which any master or mariner of 
 any ship or vessel may now by law be liable, notwithstanding such master 
 or mariner may be an owner or part owner of the ship or vessel. 
 
 Sec. 1. And he it further enacted, That any person or persons shipping 
 oil of vitriol, unslacked lime, inflammable matches, or gunpowder, in a 
 ship or vessel taking cargo for divers persons on freight, without deliver- 
 ing, at the time of shipment, a note in writing, expressing the nature and 
 character of such merchandise, to the master, mate, officer, or person in 
 charge of the lading of the ship or vessel, shall forfeit to the United 
 States one thousand dollars. 
 
 This act shall not apply to the owner or owners of any canal boat, 
 barge, or lighter, or to any vessel of any description whatsoever, used in 
 rivers or inland navigation.
 
 APPENDIX. 615 
 
 ACT OF 1852, CHAPTER CVI. (10 U. S. Stats, at Large, 61). 
 
 An Act to amend an Act entitled "An Act to provide for the belter security of the Lives of 
 Passengers on board of Vessels propelled in ichole or in part by Steam," and for other 
 purposes. 
 
 Section 1. J5e it enacted by the Senate and House of Iiepresenfatives 
 of the United States of America in Congress assembled, That no license, 
 register, or enrolment, under the provisions of this or the act to which 
 this is an amendment, shall be granted, or other papers issued by any 
 collector, to any vessel propelled in whole or in part by steam, and car- 
 rying passengers, until he shall have satisfactory evidence that all the pro- 
 visions of this act have been fully complied with ; and if any such vessel 
 shall be navigated, with passengers oil board, without complying with the 
 terms of this act, the owners thereof and the vessel itself shall be subject 
 to the penalties contained in the second section of the act to which this is 
 an amendment. 
 
 Sec. 2. And be it further enacted, That it shall be the duty of the 
 inspectors of the hulls of steamers, and the inspectors of boilers and 
 engines, appointed under the provisions of this act, to examine and see 
 that suitable and safe provisions are made throughout such vessel to 
 guard against loss or danger from fire ; and no license or other papers, 
 on any application, shall be granted, if the provisions of this act for pre- 
 venting fires are not complied with, or if any combustible material liable 
 to take fire from heated iron, or any other heat generated on board of 
 such vessels in and about the boilers, pipes, or machinery, shall be placed 
 at less than eighteen inches distant from such heated metal or other sub- 
 stance likely to cause ignition, unless a column of air or Avater intervenes 
 between such heated surface and any wood or other combustible material 
 so exposed, sufficient at all times, and under all circumstances, to prevent 
 ignition ; and further, when wood is so exposed to ignition, as an addi- 
 tional preventive, it shall be shielded by some incombustible material in 
 such manner as to leave the air to circulate freely between such material 
 and the wood. Provided, however, That when the structure of such 
 steamers is such, or the arrangement of the boilers or machinery is such 
 that the requirements aforesaid cannot, without serious inconvenience or 
 sacrifice, be complied with, inspectors may vary therefrom, if in their 
 judgment it can be done with safety. 
 
 Sec. 3. And be it further enacted, That every vessel so propelled 
 by steam, and carrying passengers, shall have not less than three doul)le- 
 acting forcing pumps, with chamber at least four inches in diameter, two 
 to be worked by hand and one by steam, if steam can be employed, oth- 
 erwise by hand ; one whereof shall be placed near the stern, one near
 
 616 APPENDIX. 
 
 the stem, and one amidship ; each having a suitable, well-fitted hose, of 
 at least two thirds the length of the vessel, kept at all times in perfect 
 order and ready for immediate use ; each of which pumps shall also be 
 supplied with water by a pipe connected therewith, and passing through 
 the side of the vessel, so low as to be at all times in the water when she 
 is afloat: Provided, That, in steamers not exceeding two hundred tons 
 measurement, two of said pumps may be dispensed with ; and in steamers 
 of over two hundred tons, and not exceeding five hundred tons measure- 
 ment, one of said pumps may be dispensed with. 
 
 Sec. 4. And he it further enacted, That every such vessel, carrying 
 passengers, shall have at least two good and suitable boats, supplied with 
 oars, in good condition at all times for service, one of which boats shall 
 be a life-boat made of metal, fire-proof, and in all respects a good, sub- 
 stantial, safe sea boat, capable of sustaining, inside and outside, fifty per- 
 sons, with life-lines attached to the gunwale, at suitable distances. And 
 every such vessel of more than five hundred tons, and not exceeding 
 eight hundred tons measurement, shall have three life-boats ; and every 
 such vessel of more than eight hundred tons, and not exceeding fifteen 
 hundred tons measurement, shall have four life-boats ; and every such 
 vessel of more than fifteen hundred tons measurement, shall have six 
 life-boats — all of which boats shall be well furnished with oars and 
 other necessary apparatus : Provided, however, The inspectors are hereby 
 authorized to exempt steamers navigating rivers only, from the obligation 
 to carry, of the life-boats herein provided for, more than one, the same 
 being of suitable dimensions, made of metal and furnished with all 
 necessary apparatus for use and safety — such steamers having other 
 suitable provisions for the preservation of life in case of fire or other 
 disaster. 
 
 Sec. 5. And he it further enacted, That every such vessel, carrying 
 passengers, shall also be provided with a good life-preserver, made of 
 suitable material, or float well adapted to the purpose, for each and every 
 passenger, which life-preservers and floats shall always be kept in con- 
 venient and accessible places in such vessel, and in readiness for the use 
 of the passengers ; and every such vessel shall also keep twenty fire 
 buckets and five axes ; and there shall be kept on board every such ves- 
 sel exceeding five hundred tons measurement, buckets and axes after the 
 rate of their tonnage, as follows : on every vessel of six hundred tons 
 measurement, five buckets and one axe for each one hundred tons meas- 
 urement, decreasing this proportion as the tonnage of the vessel 
 increases, so that any such vessel of thirty-five hundred tons, and all 
 such vessels exceeding the same shall not be required to keep but three 
 buckets for each one hundred tons of measurement, and but one axe for 
 every five buckets.
 
 APPENDIX. 617 
 
 Sec. G. And be it further enacted, That every sucli vessel cfirrying 
 passengers on the main or lower deck, shall be provided -with sufficient 
 means convenient to such passengers for their escape to the upper deck 
 in ease of fire or other accident endangering life. 
 
 Sec. 7. And he it further enacted, That no loose hemp shall be car- 
 ried on board any such vessel ; nor shall baled hemp be carried on the 
 deck or guards thereof, unless the bales are compactly pressed and well 
 covered with bagging, or a similar fabric ; nor shall gunpowder, oil of 
 tui'pentine, oil of vitriol, camphene, or other explosive burning fluids or 
 materials which ignite by friction, be carried on board any such vessel, 
 as freight, except in cases of special license for that purpose, as herein- 
 after provided ; and all such articles kept on board as stores, shall be 
 secured in metallic vessels : and every person who shall knowingly vio- 
 late any of the provisions of this section, shall pay a penalty of one 
 hundred dollars for each offence, to be recovered by action of debt in any 
 court of competent jurisdiction. 
 
 Sec. 8. And he it further enacted. That hereafter all gunpowdei", 
 oil of turpentine, oil of vitriol, campliene, or other explosive burning 
 fluids, and materials which ignite by friction, when packed or put up for 
 shipment on board of any such vessel, shall be securely packed or put 
 up separately from each other and from all other articles, and the pack- 
 age, box, cask, or vessel containing the same, shall be distinctly marked 
 on the outside with the name or description of the articles contained 
 therein ; and every person who sliall pack or put up, or cause to be 
 packed or put up for shipment on board of any such vessel, any gun- 
 powder, oil of turpentine, oil of vitriol, camphene, or other ex[)losive 
 burning fluids, or materials which ignite by friction, otherwise than as 
 aforesaid, or shall ship the same, unless packed and marked as aforesaid, 
 on board of any steam-vessel carrying passengers, shall be deemed 
 guilty of a misdemeanor, and punished by a fine not exceeding one thou- 
 sand dollars, or imprisonment not exceeding eighteen months, or both. 
 
 Sec. 9. And he it farther enacted, That instead of the existing pro- 
 visions of law for the inspection of steamers and their equipment, and 
 instead of the present system of pilotage of such vessels, and the present 
 mode of employing engineers on board the same, the following regula- 
 tions shall be observed, to wit : The collector or other chief officer of the 
 customs, together with the supervising inspector for the district, and the 
 judge of the district court of the United States for the district in each of 
 the following collection districts, namely. New Orleans and St. Louis, on 
 the Mississippi River; Louisville, Cincinnati, Wheeling, and Pittsburg, 
 on the Ohio River ; Buffalo and Cleaveland, on Lake Erie ; Detroit, 
 upon Detroit River ; Nashville, upon the Cumberland River ; Cliicago, 
 on Lake Michigan ; Oswego, on Lake Ontario ; Burlington, in ^''ermont ; 
 
 52*
 
 618 APPENDIX. 
 
 Galveston, in Texas ; Mobile, in Alabama ; Savannah, in Georgia ; 
 Cliarleston, in South Carolina; Norfolk, in Virginia; Baltimore, in 
 Maryland ; Philadelphia, in Pennsylvania ; New York, in New York ; 
 New London, in Connecticut ; Boston, in Massachusetts ; Portland, in 
 Maine ; and San Francisco, in California — shall designate two inspec- 
 tors, of good character and suitable qualifications to perform the services 
 required of them by this act within the respective districts for which 
 they shall be appointed, one of whom, from his practical knowledge of 
 ship-building, and the uses of steam in navigation, shall be fully compe- 
 tent to make a reliable estimate of the strength, seaworthiness, and other 
 qualities of the hulls of steamers and their equipment, deemed essential 
 to safety of life, when such vessels are employed in the carriage of pas- 
 sengers, to be called the Inspector of Hulls ; the other of whom, from his 
 knowledge aijd experience of the duties of an engineer employed in 
 navigating vessels by steam, and also in the construction and use of 
 boilers, and the machinery and appurtenances therewith connected, shall 
 be able to form a reliable opinion of the quality of the material, the 
 strength, form, workmanship, and suitableness of such boilers and 
 machinery to be employed in the carriage of passengers, without hazard 
 to life, from imperfections in the material, workmanship, or arrangement 
 of any part of such apparatus for steaming, to be called tlie Inspector 
 of Boilers ; and these two persons thus designated, if approved by the 
 secretary of the treasury, shall be, from the time of such designation, 
 inspectors, empowered and required to perform the duties herein speci- 
 fied, to wit: 
 
 First. Upon application in writing by the master or owner, they 
 shall, once in every year at least, carefully inspect the hull of each 
 steamer belonging to their respective districts and employed in tlie car- 
 riage of passengers, and shall satisfy themselves that every such vessel 
 so submitted to their inspection is of a structure suitable for the service 
 in which she is to be employed, has suitable accommodations for her 
 crew and passengers, and is in a condition to warrant the belief that she 
 may be used in navigation as a steamer, with safety to life, and that all 
 the requirements of law in regard to fires, boats, pumps, hose, life-pre- 
 servers, floats, and other things, are faithfully complied with ; and if they 
 deem it expedient, they may direct the vessel to be put in motion, and 
 may adopt any other suitable means to test her sufiiciency and that of her 
 equipment. 
 
 Second. They shall also inspect the boilers of such steamers before 
 
 the same shall be used, and once in every year thereafter, subjecting 
 
 them to a hydrostatic pressure, the limit to which, not exceeding one 
 
 hundred and sixty-five pounds to the square inch for high pressure boil- 
 
 ■ ers, may be prescribed by the owner or the master, and shall satisfy
 
 APPENDIX. 619 
 
 themselves by examination and experimental trials, that the boilers are 
 well made of good and suitable material ; that the openings for the pas- 
 sage of water and steam respectively, and all pipes and tubes exposed 
 to heat are of proper dimensions, and free from obstruction ; that the 
 spaces between the flues are sufficient, and that the fire line of the fur- 
 nace is below the prescribed water-line of the boilers ; and that such 
 boilers and the machinery and the appurtenances may be safely em- 
 ployed in the service proposed in the written application, without peril 
 to life ; and shall also satisfy themselves that the safety-valves are of 
 suitable dimensions, sufficient in number, well arranged, and in good 
 working order, (one of which may, if necessary in the opinion of the 
 inspectors, to secure safety, be taken wholly from the control of all per- 
 sons engaged in navigating such vessel ;) that there is a suitable number 
 of gauge-cocks properly inserted, and a suitable water-gauge and steam- 
 gauge indicating the height of the water and the pressure of the steam ; 
 that in or upon the outside flue of each outside high-pressure boiler, 
 there is placed in a suitable manner alloyed metals, fusible by the heat 
 of the boiler when raised to the highest working pressure allowed, and 
 that in or upon the top of the flues of all other high-pressure boilers in 
 the steamer, such alloyed metals are placed, as aforesaid, fusing at ten 
 pounds greater pressure than said metals on the outside boilers, thereby, 
 in each case, letting steam escape ; and that adequate and certain pro- 
 vision is made for an ample supply of water to feed the boilers at all 
 times, whether such vessel is in motion or not ; so that, in high-pressure 
 boilers, the water shall not be less than four inches above the flue : Pro- 
 vided, lioicever, in steamers hereafter supplied with new high-pressure 
 boilers, if the alloy fuses on the outer boilers at a pressure of ten pounds 
 exceeding the working pressure allowed, and at twenty pounds above 
 said pressure on the inner boilers, it shall be a sufficient compliance with 
 this act. 
 
 Third. That in subjecting to the hydrostatic test aforesaid, boilers 
 called and usually known under the designation of high-pressure boilers, 
 the inspectors shall assume one hundred and ten pounds to the square 
 inch as the maximum pressure allowable as a working power for a new 
 boiler forty-two inches in diameter, made of inspected iron plates at least 
 one fourth of an inch thick, in the best manner, and of the quality herein 
 required, and shall rate the working power of all high-pressure boilers, 
 whether of gi'eater or less diameter, old or new, according to their 
 strength compared with this standard: and in all cases the test api)lied 
 shall exceed the working power allowed, in the ratio of one hundred and 
 sixty-five to one hundred and ten, and no high-pressure boilers hereafter 
 made sliall be rated above this standard: and in subjecting to the test 
 aforesaid, that class of boilers usually designated and known as low-pres-
 
 620 APPENDIX. 
 
 sure boilers, the said inspectors shall allow as a working power of each 
 new boiler a pressure of only three fourths the number of pounds to the 
 square inch to which it shall have been subjected by the hydrostatic test 
 and found to be sufficient therefor, using the water in such tests at a 
 temperature not exceeding sixty degree Fahrenheit ; but should such 
 inspectors be of the opinion, that said boiler by reason of its construction 
 or material will not safely allow so high a working pressure, they may, 
 for reasons to be stated specifically in their certificate, fix the working 
 pressure of said boiler at less than three fourths of said test pressure, and 
 no low-pressure boiler hereafter made shall be rated in its working pres- 
 sure above the aforesaid standard : and provided that the same rules 
 shall be observed in regard to boilers heretofore made, unless the propor- 
 tion between such boilers and the cylinders or some other cause renders 
 it manifest that its application would be unjust, in which cases the 
 inspectors may depart from these rules, if it can be done with safety ; 
 but in no case shall the working pressure allowed exceed the hydrostatic 
 test, and no valve under any circumstances shall be loaded or so managed 
 in any way as to subject a boiler to a greater pressure than the amount 
 allowed by the inspectors, nor shall any boiler or pipe be approved 
 which is made in whole or in jiart of bad material, or is unsafe in its 
 form, or dangerous from defective workmanship, age, use, or any other 
 cause. 
 
 Fourth. That when the inspection in detail is completed, and the 
 inspectors approve of the vessel and her equipment throughout, they 
 shall make and subscribe a certificate to the collector of the district, sub- 
 stantially as follows : — 
 
 State of District of Application having been made in 
 
 writing by to the subscribers, inspectors for said district, to ex- 
 
 amine the steamer of whereof are owners, and 
 
 is master, we having performed that service, now, on this 
 day of A. D. do certify, that she Avas built in the year 
 
 , is in all respects staunch, sea-worthy, and in good condition for 
 navigation, having suitable means of escape in case of accident from the 
 main to the upper deck, that she is provided with (here insert the num- 
 ber of state-rooms, the number of berths therein, the number of other 
 permanent berths for cabin passengers, the number of berths for deck or 
 other classes of passengers, the number of passengers of each class for 
 whom she has suitable accommodations, and in case of steamers sailing to 
 or from any European port, or to or from any port on the Atlantic or the 
 Pacific, a distance of one thousand miles or upwards, the number of each 
 she is permitted to carry, — and in case of a steamer sailing to any other 
 port, a distance of five hundred miles or upwards, the number of deck 
 passengers she is permitted to carry, also the number of boilers, and the
 
 APPENDIX. 621 
 
 form, dimensions, and material of which each boiler is made, the thick- 
 ness of the metal, and when made — if made after this act takes effect, 
 and of iron, whether they are such in all respects as the act requires, 
 Avhether each boiler has been tried by hydrostatic test, the amount of 
 pressure to the square inch in pounds applied to it, whether the amount 
 allowed as the maximum working power was determined by the rule pre- 
 scribed by this act, if not, the reason for a departure from it ; also the 
 number of safety-valves required, their capacity, the load prescribed for 
 each valve, how many are left to the control of the persons navigating 
 the vessel, whether one is withdrawn, and the manner of securing it 
 against interference, also the number and dimensions of supply pipes, 
 and w^hether they and the other means provided are sufficient at all times 
 and under all circumstances, when in good order, to keep the water up 
 four inches at least above the top of the flue ; also the number and dimen- 
 sions of the steam-pipes, the number and kind of engines, the dimensions 
 of their cylinders, the number and capacity of the forcing-pumps, and 
 how worked, the number and kind of gauge-cocks, water and steam 
 gauges, where situate, and how secured ; also the manner of using alloyed 
 metals, and the pressure at which they are known by the inspectors to 
 fuse ; the equipments for the extinguishment of fires, including hose, fire- 
 buckets, and axes; the provisions for saving life in case of accident, 
 including boats, life-preservei-s, and substitutes therefor, Avhere kept, and 
 all other provisions made on board for the security of the lives of passen- 
 gers). And we further certify, that the equipment of the vessel through- 
 out, including pipes, pumps, and other means to keep the water up to 
 the point aforesaid, hose, boats, life-preservex's, and other things, is in 
 conformity with the provisions of law ; and that we declare it to be our 
 deliberate conviction, founded upon the inspection which we have made, 
 that the vessel may be employed as a steamer upon the waters ifamed in 
 the application, without peril to life, from any imperfection of form, 
 materials, workmanship, or arrangement of the several parts, or from 
 age or use. And we further certify, that said vessel is to run within 
 the following limits, to wit : from to and back, touching 
 
 at intermediate places. 
 
 And which certificate shall be verified by the oaths of the inspectors 
 signing it, before a person competent by law to administer oaths. And 
 in case the said inspectors do not grant a certificate of approval, they 
 shall state, in writing, and sign the same, their reasons for their disap- 
 proval. 
 
 Fifth. Upon the application of the master or owner of any steamer 
 employed in the carriage of passengers, for a license to carry gunpowder, 
 oil of turpentine, oil of vitriol, camphene, or other explosive burning 
 fluids, and materials which ignite by friction, or either of them, the
 
 622 APPENDIX. 
 
 inspectors shall examine such vessel, and if they find that she is pro- 
 vided with chests or safes composed of metal, or entirely lined therewith, 
 or one or more apartments thoroughly lined with metal at a secure dis- 
 tance from any fire, they may grant a certificate to that effect, authorizing 
 such vessel to carry as freight any of the articles aforesaid, those of each 
 description to be secured in such chest, safe, or apartment, containing no 
 other article, and carried at a distance from any fire to be specified in the 
 certificate : Provided, That any such certificate may be revoked or an- 
 nulled at any time by the inspectors, upon proof that either of the said 
 articles have been carried on board said A'essel, at a place or in a manner 
 not authorized by such certificate, or that any of the provisions of this 
 act in relation thereto have been violated. 
 
 Sixth. The said inspectors shall keep a regular record of certificates 
 of inspections of vessels, their boilers, engines, and machinery, wdiether 
 of approval or disapproval, and when recorded, the original shall be de- 
 livered to the collector of the district ; they shall keep a like record of 
 certificates, authorizing gunpowder, oil of turpentine, oil of vitriol, cam- 
 phene, or other explosive burning fluids and materials which ignite by 
 friction, or either of them, to be carried as freight, by any such vessel ; 
 and when recorded deliver the originals to said collector ; they shall keep 
 a like record of all licenses to pilots and engineers, and all revocations 
 thereof, and shall from time to time report to the supervising inspector of 
 their respective districts, in writing, their decisions on all applications for 
 such licenses, or proceedings for the revocation thereof, and all testimony 
 received by them in such proceedings. 
 
 Seventh. The inspectors shall license and classify all engineers and 
 pilots of steamers carrying passengers. 
 
 Eighth. Whenever any person claiming to be qualified to perform the 
 duty of engineer ujion steamers carrying passengers, shall apply for a 
 certificate, the board of inspectors shall examine the applicant, and the 
 proofs which he produces in support of his claim ; and if, upon full con- 
 sideration, they are satisfied that his character, habits of life, knowledge, 
 and experience in the duties of an engineer, are all such as to authorize 
 the belief that the applicant is a suitable and safe person to be intrusted 
 with the powers and duties of such a station, they shall give him a cer- 
 tificate to that effect, for one year, signed by them, in which certificate 
 they shall state the time of the examination, and shall assign the ap- 
 pointee to the appropriate class of engineers. 
 
 Ninth. Whenever any person claiming to be a skilful pilot for any 
 such vessel shall offer himself for a license, the said board shall make 
 diligent inquiry as to his character and merits ; and if satisfied that he 
 possesses the requisite skill, and is trustworthy and faithful, they shall 
 give him a certificate to that effect, licensing him for one year to be a
 
 APPENDIX. 623 
 
 pilot of any such vessels within the limit prescribed in the certificate ; 
 but the license of any such engineer or pilot may be revoked upon proof 
 of negligence, unskilfulness, or inattention to the duties of the station : 
 Provided^ however, If in cases of refusal to license engineers or pilots, 
 and in cases of the revocation of any license by the local board of in- 
 spectors, any engineer or pilot deeming himself wronged by such refusal 
 or revocation, may, within thirty days after notice thereof, on application 
 to a supervising inspector, have his case examined anew by such super- 
 vising inspector, upon producing a certified copy of the reasons assigned 
 by the local boai-d for their doings in the premises ; and such supervising 
 inspector may revoke the decision of such local board of inspectors and 
 license such pilot or engineer ; and like proceedings, upon the same con- 
 ditions may be had by the master or owner of any such vessel, or of any 
 steamboat-boiler, for which the said local board shall have refused, upon 
 inspection, to give a certificate of approval, or shall have notified such 
 master or owner of any repairs necessary after such certificate has been 
 granted. 
 
 Tenth. It shall be unlawful for any person to employ, or any person 
 to serve as engineer or pilot, on any such vessel, who is not licensed by 
 the inspectors ; and any one so offending shall forfeit one hundred dollars 
 for each oflTence : Provided,- however, That if a vessel leaves her port 
 with a complement of engineers and pilots, and on her voyage is deprived 
 of their services, or the services of any of them, without the consent, 
 fault, or collusion of the master, owner, or any one interested in the ves- 
 sel, the deficiency may be temporarily supplied, until others, licensed, can 
 be obtained. 
 
 Eleventh. In addition to the annual inspection, it shall be the duty of 
 said board to examine, seasonably, steamers aiTiving and departing, so 
 often as to enable them to detect any neglect to comi:)ly with the require- 
 ments of law, and also any defects or imperfections becoming apparent 
 after the inspection aforesaid, and tending to render the navigation of the 
 vessel unsafe, which service may be performed by one of the board ; and 
 if he shall discover an omission to comply with the law or that repairs 
 have become necessary to make the vessel safe, he shall at once notify 
 the master, stating in the notice what is required ; and if the master 
 deems the requirements unreasonable or unnecessary, he may take the 
 opinion of the board thereon, and if dissatisfied with the decision of such 
 board may apply for a reexamination of the case to the supervising in- 
 spector as is hereinbefore provided ; and if he shall refuse or neglect to 
 comply with the requirements of the local board, and shall, contrary 
 thereto, and while the same remains unreversed by the supervising 
 inspector, employ the vessel by navigating her, the master and owner 
 shall be liable for any damage to the passengers and their baggage which
 
 624 APPENDIX. 
 
 shall occur from any defects so as aforesaid stated in said notice, which 
 shall be in writing, and all inspections and orders shall be promptly made 
 by the inspectors ; and where it can be safely done in their judgment, 
 they shall permit repairs to be made where those interested can most 
 conveniently do them ; and no inspectors of one district shall modify or 
 annul the doings of the inspectors of another district, in regard to 
 repairs, unless there is a change in the state of things demanding 
 more repairs than were thought necessary when the order was made ; 
 nor shall the inspectors of one district appoint a person coming from 
 another, if such person had been rejected for unfitness or want of quali-. 
 fications. 
 
 Twelfth. The said board, when thereto requested, shall inspect steam- 
 ers belonging to districts where no such board is established ; and if a 
 certificate of approval is not gi'anted, no other inspection shall be made 
 by the same or any other board, until the objections made by the in- 
 spectors are removed ; and if any vessel shall be navigated after a board 
 of inspectors have refused to make the collector a certificate of approval, 
 she shall be liable to the same penalties as if she had been run without a 
 license : Provided, however, That nothing herein contained shall impair 
 the right of the inspectors to permit such vessel to go to another port for 
 repairs, if, in their opinion, it is safe so to do. 
 
 Thirteenth. The said board of inspectors shall have power to summon 
 before them witnesses, and to compel their attendance by the same pro- 
 cess as in courts of law ; and after reasonable time given to the alleged 
 delinquent, at the time and place of investigation, to examine said wit- 
 nesses under oath, touching the performance of their duties by engineers 
 and pilots of any such vessel ; and if it shall appear satisfactorily that 
 any such engineer or pilot is incompetent ; or that life has been placed in 
 peril by reason of such incompetency, or by negligence or misconduct on 
 the part of any such person, the board shall immediately suspend or 
 revoke his license, and report their doings to the chief ofiicer of the cus- 
 toms ; and the said chief ofiicer of the customs shall pay out of the 
 revenues herein provided such sums to any witness so summoned under 
 the provisions of this act, for his actual travel and attendance, as shall 
 be officially certified, by an inspector hearing the case, upon the back 
 of the summons, not exceeding the rates allowed to a witness for 
 travel and attendance in the circuit and district courts of the United 
 States. 
 
 Fourteenth. That the said board shall report promptly all their doings 
 to the chief ofiicer of the customs, as well as all omissions or refusals to 
 comply with the provisions of Lxav on the part of any owner or master 
 of any such vessel, propelled in whole or in part by steam, carrying pas- 
 sengers.
 
 APPENDIX. 625 
 
 Fifteenth. That it shall at all times be the duty of all engineers and 
 pilots licensed under this act, and all mates, to assist the inspectors in 
 the examination of any such vessels to which any such engineer, mate, 
 or pilot beings, and to point out all defects and imperfections in the hull 
 or apparatus for steaming, and also to make known to them at the earliest 
 opportunity, all accidents occasioning serious injury to the vessel or her 
 equipment, whereby life may be in danger, and in default thereof the 
 license of any such engineer or pilot shall be revoked. 
 
 Sec. 10. And he it further enacted, That in those cases where the 
 number of passengers is limited by the inspector's certificate, it shall not 
 be lawful to take on board of any steamer a gx'eater number of passen- 
 gers than is certified by the inspectors in the certificate ; and the master 
 and owners, or either 'of them, shall be liable, to any person suing for 
 the same, to forfeit the amount of passage money and ten dollars for each 
 passenger beyond the number allowed. And moreover, in all cases of an 
 express or implied undertaking to transport passengers, or to supply 
 them with food and lodging, from place to place, and suitable provision is 
 not made of a full and adequate supply of good and wholesome food and 
 watei", and of suitable lodging for all such passengers, or where barges, or 
 other craft, impeding the progress, are taken in tow, for a distance 
 exceeding five hundred miles, without previous and seasonable notice to 
 such passengers, in all such cases the owners and the vessel shall be lia- 
 ble to refund all the money paid for the passage, and to pay also the 
 damage sustained by such default or delay : Provided, however, That if 
 in any such case a satisfactory bond is given to the marshal for the ben- 
 efit of the plaintiflT, to secure the satisfaction of such judgment as he 
 may recover, the vessel shall be released. 
 
 Sec. 11. And he it further enacted, That if the master of a steamer, 
 or any other person, whether acting under orders or not, shall inten- 
 tionally load or obstruct, or cause to be loaded or obstructed, in any way 
 or manner, the safety valve or valves of a boiler, or shall employ any 
 other means or device whereby the boiler shall be subjected to a greater 
 pressure than the amount allowed by the certificate of the inspectoi'S, or 
 shall be exposed to a greater pressure, or shall intentionally derange or 
 hinder the operation of any machinery or device employed to denote 
 the state of the water or steam in any boiler, or to give warning of ap- 
 proaching danger, it shall, in any such case, be a misdemeanor, and any 
 and every pei'son concerned therein, directly or indirectly, shall forfeit 
 two hundred dollars, and may, at the discretion of the court, be in adtli- 
 tion thereto imprisoned not exceeding eighteen months. 
 
 Sec. 12. And be it furthei- enacted, That if at any time there be a 
 deficiency of water in a boiler, by suffering it to fall below three inches 
 above the flue as prescribed in this act, unless the same happens througli 
 
 VOL. I. 53
 
 626 APPENDIX. 
 
 inevitable accident, the master, if it be by his order, assent, or conni- 
 vance, and also the engineer, or other person, whose duty it is to keep 
 up the supply, shall be guilty of an offence for which they shall severally 
 be fined one hundred dollars each ; and if an explosion or collapse hap- 
 pens in consequence of such deficiency, they, or any of them, may be 
 further punished by imprisonment, for a period of not less than six nor 
 more than eighteen months. 
 
 Sec. 13. And be it further enacted, That hereafter all boilers of steam- 
 boats made of iron, shall be constructed of plates which have been 
 stamped according to the provisions of this act. 
 
 Sec. 14. And be it further enacted, That it shall be the duty of such 
 inspectors to ascertain the quality of the material of which the boiler- 
 jjlates of any such boiler so submitted to their in^^jection are made ; and 
 to satisfy themselves by any suitable means, whether the mode of 
 manufacturing has been such as to produce iron equal to good iron made 
 witli charcoal, such as in their judgment may be used for generating 
 steam-power without hazard to life ; and no such boiler shall be approved 
 which is made of unsuitable material, or of which the manufacture is 
 imperfect, or is not in their opinion, of suitable strength, or whose plates 
 are less than one fourth of an inch in thickness, for a high-pressure 
 boiler of forty-two inches in diameter, and in that proportion' of 
 strength accoi'ding to the maximum of working pressure allowed for 
 high-pressure boilers of greater or less diameter, or which is made 
 of any but wrought iron of a quality equal to good iron made with 
 charcoal. 
 
 Sec. 15. And be it further enacted, That all plates of boiler iron shall 
 be distinctly and permanently stamped in such manner as the secretary 
 of the treasury shall prescribe, and if practicable, in such place or places 
 that the mark shall be left visible after the plates are worked into boilers ; 
 with the name of the manufacturer, the quality of the iron, and whether 
 or not hammered, and the place where the same is manufactured. 
 
 Sec. 16. And be it further enacted, That it shall be unlawful to use in 
 such vessels for generating steam for power, a boiler, or steam-pipe con- 
 necting the boilers made after the passage of this act, of any iron unless 
 it has been stamped by the manufacturer as herein provided ; and if any 
 person shall make for use in any such vessel, a boiler of iron not so 
 stamped, intended to generate steam for power, he shall, for any such 
 offence, forfeit five hundred dollars, to be recovered in an action of debt 
 by any pei'son suing for the same ; and any person using or causing to be 
 used in any such vessel such a boiler to generate steam for power, shall 
 forfeit a like sum for each offence. 
 
 Sec. 17. And be it further enacted. That if any person shall counterfeit 
 the marks and stamps requii'ed by this act, or shall falsely stamp any
 
 APPENDIX. 627 
 
 boiler iron, and be convicted thereof, he shall be fined not exceeding five 
 hundred dollars and imprisoned not exceeding two years. And if any 
 pei'son or persons shall stamp or mark plates with the name or marks of 
 another with intent to mislead, deceive, or defraud, such person or per- 
 sons shall be liable to any one injured thereby, for all damage occasioned 
 by such fraud or deception. 
 
 Sec. 18. And be it further enacted, That in order to carry this act fully 
 into execution, the President of the United States shall, with the advice 
 of the senate, appoint nine supervising inspectors, who shall be selected 
 for their knowledge, skill, and experience in the uses of steam for navi- 
 gation, and who are competent judges not only of the character of vessels 
 but of all parts of the machinery employed in steaming, who shall assem- 
 ble together at such places as they may agree upon once in each year at 
 least, for joint consultation and the establishment of rules and regulations 
 for their own conduct and that of the several boards of inspectors within 
 the districts, and also to assign to each of the said nine inspectors the 
 limits of territory within which he shall perform his duties. And the 
 said supervising inspectors shall each be paid for his services after the 
 rate of fifteen hundred dollars a year, and in addition thereto, his actual 
 reasonable travelling expenses, incurred in the necessary performance of 
 his duty when away from the principal port in his district, and certified 
 and sworn to by him under such instructions as shall be given by the 
 secretary of the treasury, who is hereby authorized to pay such salaries, 
 and also such travelling expenses, and the actual reasonable expenses 
 (both to them and other inspectors) of transporting from place to jilace 
 the instruments used in inspections, which ex|)enses shall be proved to 
 his satisfaction. 
 
 Sec. 19. And be it further enacted, That the supervising inspectors shall 
 watch over all parts of the territory assigned them, shall visit, confer 
 with, and examine inter the doings of the several boards of inspectors, 
 and shall, whenever they think it expedient, visit such vessels, licensed, 
 and examine into their condition, for the purpose of ascertaining whether 
 the provisions of this act have been observed and complied with, both by 
 the board of inspectors and the master and owners ; and it shall be the 
 duty of all masters, engineers, and pilots of such vessels, to answer all 
 reasonable inquiries and to give all the information in their power, in re- 
 gard to any such vessel so visited, and her machinery for steaming, and 
 the manner of managing both. 
 
 Sec. 20. And be it further enacted. That whenever a supervising in- 
 spector ascertains to his satisfaction that the master, engineer, pilot, or 
 owner of any such vessel fail to perform their duties according to the 
 provisions of this act, he shall report the fiicts in writing to the board in 
 the district where the vessel belongs, and, if need be, cause the negligent
 
 628 APPENDIX. 
 
 or offending pai'ties to be prosecuted ; and if he has good reason to believe 
 there has been, through negligence, or from any other cause, a failure of 
 the board who inspected the vessel to do its duty, he shall report the facts 
 in writing to the secretary of the treasury, who shall cause immediate in- 
 vestigation into the truth of the complaint, and if he deems the cause 
 sufficient, shall remoye the delinquent. 
 
 Sec. 21. And be it further enacted, That it shall be the duty of such 
 supervising inspectors to see that the said several boards within their re- 
 spective collection districts execute their duties faithfully, promptly, and, 
 as far as possible, uniformly, in all places, by following out the provisions 
 of this act, according to the true intent and meaning thereof; and they 
 shall, as far as practicable by their established rules, harmonize differences 
 of opinion when they exist in different boards. 
 
 Sec. 22. A7id be it further enacted, That the said supervising inspectors 
 shall also visit collection districts in which there are no boards of inspec- 
 tors, if there be any where steamers are owned or employed, and each 
 one shall have full power to inspect any such steamer or boilers of each 
 steamer in any such district, or in any other district where, from distance 
 or other cause, it is inconvenient to resort to the local board, and to grant 
 certificates of approval according to the provisions of this act, and to do 
 and perform in such districts all the duties imposed upon boards in the 
 districts where they exist : Provided, That no supervising or other inspec- 
 tor shall be deemed competent to inspect in any case where he is directly 
 or indirectly personally interested, or is associated in business with any 
 person who is so interested, but in all such cases the duty shall be per- 
 formed by disinterested inspectors, and inspection made in violation of 
 this rule shall be void and of no effect. 
 
 Sec. 23. And be it further enacted, That it shall be the duty of each 
 of the collectors or other chief officer of the customs for the districts 
 aforesaid, except San Francisco, to make known without delay, to the 
 collectors of all the said districts, except San Francisco, the names of all 
 persons licensed as engineers or pilots for such vessels, and the names of 
 all persons from whom upon application, licenses have been withheld, and 
 the names of all whose licenses have been revoked or suspended, and also 
 the names of all such vessels which neglect or refuse to make such repairs 
 as may be ordered under the provisions of this act, and the names of all 
 for which license has been, on application, refused. 
 
 Sec. 2-i. And be it further enacted. That it shall be the duty of the col- 
 lectors or other chief officers of the customs and of the inspectors afore- 
 said, within the said several districts, to enforce the provisions of law 
 ao-ainst all such steamers arriving and departing ; and upon proof that 
 anv collector or other chief officer of the customs, or inspector, has negli- 
 gently or intentionally omitted his duty in this particular, such delinquent
 
 APPENDIX. 629 
 
 shall be removed from office, and shall also be subject to a penalty of one 
 hundred dollars for each offiance, to be sued for in an action of debt before 
 any court of competent jurisdiction. 
 
 Sec. 25. A7id be it further enacted, That the collector or other chief 
 officer of the customs, shall retain on file all original certificates of the 
 inspectors required by this act to be delivered to him, and shall give to 
 the master or owner of the vessel therein named, two certified copies 
 thereof, one of which shall be placed by such master or owner in some 
 conspicuous place in the vessel, where it will be most likely to be observed 
 by passengers and others, and there kept at all times ; the other shall be 
 retained by such master or owner as evidence of the authority thereby 
 conferred ; and if any person shall receive or carry any passenger on 
 board any such steamer not having a certified copy of the certificate of 
 approval as ji'equired by this act, placed and kept as aforesaid ; or who 
 shall receive or carry any gunpowder, oil of turpentine, oil of vitriol, 
 camphene, or other explosive burning fluids, or materials which ignite by 
 friction, as freight, on board any steamer carrying passengers, not having 
 a certificate authorizing the same, and a certified copy thereof placed and 
 kept as aforesaid ; or who shall stow or carry any of said articles, at a 
 place or in a manner not authorized by such certificate, shall forfeit and 
 pay for each offence one hundred dollars, to be reco^-ered by action of 
 debt in any court of competent jurisdiction. 
 
 Sec. 2G. And be it further enacted, That every inspector who shall wil- 
 fully certify falsely touching any such vessel propelled in whole or in part 
 by steam, and carrying passengers, her hull, accommodations, boilers, en- 
 gines, machinery, or their appurtenances, or any of her equipments, or 
 any matter or thing contained in any certificate signed and sworn to by 
 him, shall on conviction thereof, be punished by fine not exceeding five 
 hundred dollars, or imprisonment not exceeding six months,,or both. 
 
 Sec. 27. And he it further enacted, That if any such vessel carrying 
 passengers, having a license and certificate, as required by this act, shall 
 be navigated without having her hull, accommodations, boilers, engines, 
 machinery, and their appurtenances, and all equipments, in all things con- 
 formable to such certificate, the master or commander by whom she shall 
 be so navigated, having knowledge of such defect, shall be punished by 
 fine not exceeding one hundred dollars, or imprisonment not exceeding 
 two months, or both : Provided, That such master or commander shall not 
 be liable for loss or deficiency occasioned by the dangers of navigation, if 
 such loss or deficiency shall be supplied as soon as practicable. 
 
 Six. 28. And be it further enacted, That on any such steamers navi- 
 gating rivers only, when from darkness, fog, or other cause, the pilot on 
 watch shall be of opinion that the navigation is unsafe, or from accident 
 to, or derangement of the machinery of the boat, the engineer on watch 
 
 53*
 
 630 APPENDIX. 
 
 shall be of opinion that the further navigation of the vessel is unsafe, the 
 vessel shall be brought to anchor, or moored, as soon as it prudently can 
 be done : Provided, That if the person in command shall, after being so 
 admonished by either of such officers, elect to pursue such voyage, he may. 
 do the same ; but in such case both he and the owners of such steamer 
 shall be answerable for all damages which shall arise to the person of any 
 passenger and his baggage from said causes in so pursuing the voyage, 
 and no degree of care or diligence shall in such case be held to justify or 
 excuse the person in command, or said owners. 
 
 Sec. 29. And be it furtlier enacted, That it shall be the duty of the 
 supervising inspectors to establish such rules and regulations to be 
 observed by all such vessels in passing each other, as they shall fx-om 
 time to time deem necessary for safety ; two printed copies of which rules 
 and regulations, signed by said inspectors, shall be furnished to each of 
 such vessels, and shall at all times be kept up in conspicuous places on 
 such vessels, which rules shall be observed both night and day. Should 
 any pilot, engineer, or master of any such vessel neglect or wilfully i-efuse 
 to observe the foregoing regulations, any delinquent so neglecting or re- 
 fusing, shall be liable to a penalty of thirty dollars, and to all damage 
 done to any passenger, in his person or baggage, by such neglect or re- 
 fusal ; and no such vessel shall be justified in coming into collision with 
 another if it can be avoided. 
 
 Sec. 30. And he it further enacted, That whenever damage is sustained 
 by any passenger or his baggage, from explosion, fire, collision, or other 
 cause, the master and the owner of such vessel, or either of them, and 
 the vessel, shall be liable to each and every person so injured, to the full 
 amount of damage, if it happens through any neglect to comply with the 
 provisions of law herein prescribed, or through known defects or imper- 
 fections of t^je steaming apparatus, or of the hull ; and any person sus- 
 taining loss or injury through the carelessness, negligence, or wilful mis- 
 conduct of an engineer or pilot, or their neglect or refusal to obey the 
 provisions of law herein prescribed as to navigating such steamers, may 
 sue such engineer or pilot, and recover damages for any such injury 
 caused as aforesaid by any such engineer or pilot. 
 
 Sec. 31. And he it further enacted. That before issuing the annual 
 license to any such steamer, the collector or other chief officer of the cus- 
 toms for the port or district, shall demand and receive from the owner or 
 owners of the steamer, as a compensation for the inspections and exami- 
 nations made for the year, the following sums, in addition to the fees for 
 issuing enrolments and licenses, now allowed by law, according to the ton- 
 na'Te of the vessel, to wit : for each vessel of a thousand tons and over, 
 thirty-five dollars ; for each of five hundred tons and over, but less than 
 one thousand tons, thirty dollars ; and for each under five hundred tons
 
 APPENDIX. 631 
 
 and over one hundred and twenty-five tons, twenty-five dollars ; and for 
 each under one hundred and twenty-five tons, twenty dollars, at the time 
 of obtaining registry, and once in each year thereafter, pay according to 
 the rate of tonnage before mentioned, the sum of money lierein fixed. 
 And each engineer and pilot licensed as herein provided, shall pay for 
 the first certificate granted by any inspector or inspectors, the sum of five 
 dollai's, and for each subsequent certificate one dollar, to such inspector or 
 inspectors, to be accounted for and paid over to the collector or other 
 chief officer of the customs ; and the sums derived from all the sources 
 above specified shall be quarterly accounted for and })aid over to the 
 United States in the same manner as other revenue. 
 
 Sec. 32. A7id be it further enacted, That each inspector shall keep an 
 accurate account of every such steamer boarded by him during the year, 
 and of all his official acts and doings, which in the form of a report he 
 shall communicate to the collector or other chief officer of the customs, 
 on the first days of May and November, in each year. 
 
 Sec. 33. A)id be it further enacted, That the inspectors in the following 
 districts shall each be allowed annually, the following compensation, to be 
 paid under the direction of the secretary of the treasury, in the manner 
 officers of the revenue are ])^\A, to wit : 
 
 For the district of Portland, in Maine, three hundred dollars. 
 
 For the district of Boston and Charlestown, in Massachusetts, eight 
 hundred dollars. 
 
 For the district of New London, in Connecticut, three hundred dol- 
 lars. 
 
 For the district of New York, two thousand dollars. 
 
 For the district of Philadelphia, in Pennsylvania, one thousand dol- 
 lars. 
 
 For the district of Baltimore, in Maryland, one thousand dollars. 
 
 For the district of Norfolk, in Virginia, three hundred dollars. 
 
 For the district of Charleston, in South Carolina, four hundred dol- 
 lars. 
 
 For the district of Savannah, in Georgia, four hundred dollars. 
 
 For the district of Mobile, in Alabama, one thousand dollai's. 
 
 For the district of New Orleans, or in which New Orleans is the port 
 of entry, in Louisiana, two thousand dollars. 
 
 For the district of Galveston, in Texas, three hundred dollars. 
 
 For the district of St. Louis, in Missouri, fifteen hundred dollars. 
 
 For the district of Nashville, in Tennessee, four hundred dollars. 
 
 For the district of Louisville, in Kentucky, twelve hundred dollars. 
 
 For the district of Cincinnati, Ohio, fifteen hundred dollars. 
 
 For the district of Wheeling, Virginia, five hundred dollars.
 
 632 APPENDIX. 
 
 For the district of Pittsburgh, Pennsylvania, fifteen hundred dollars. 
 
 For tlie district of Chicago, Illinois, five liundred dollars. 
 
 For the district of Detroit, Michigan, eight hundred dollars. 
 
 For the district of Cleveland, Ohio, five hundred dollars. 
 
 For the district of Buflflilo, New York, twelve hundred dollars. 
 
 For the district of Oswego, or of which Oswego is the port of entry, 
 New York, tlu-ee hundred dollars. 
 
 For the district of Vermont, two hundred dollars. 
 
 For the district of San Francisco, California, fifteen hundred dollars. 
 
 Sec. 34. Aiid be it further enacted, That the secretary of the treasury 
 shall provide the inspectors witli a suitable number of instruments, of 
 uniform construction, so as to give uniform results to test the strength of 
 boilers. 
 
 Sec. 35. And he it further enacted, That it shall be the duty of the 
 master of any such steamer to cause to be kept a correct list of all the 
 passengers received and delivered from day to day, noting the places 
 whex*e received and where landed, which record shall be open to the in- 
 spection of the inspectors and officers of the customs at all times ; and in 
 case of default, through negligence or design, the said master shall forfeit 
 one hundred dollars, which penalty, as well as that for excess of passen- 
 gers, shall be a lien upon the vessel : Provided, however, a bond may, as 
 provided for in other cases, be given to secure the satisfaction of the judg- 
 ment. 
 
 Sec. 36. And he it further enacted, That every master or commander 
 of any such steamer, shall keep on board of such steamer, at least two 
 copies of this act to be furnished to him by the secretary of the treasury ; 
 and if the master or commander neglects or refuses so to do, or shall un- 
 reasonably refuse to exhibit a copy of the same to any passenger who 
 shall ask it, he shall forfeit twenty dollars. 
 
 Sec. 37. And he it further enacted, That any inspector who shall, upon 
 any pretence, receive any fee or reward for his services rendered under 
 this act, except what is herein allowed to him, shall forfeit his office ; and 
 if found guilty, on indictment, be otherwise punished, according to the 
 aggravation of the offence, by fine not exceeding five hundred dollars, or 
 imprisonment not exceeding six months, or both. 
 
 Sec. 38. And he it further enacted, That all engineers and pilots of any 
 such vessel shall, before entering upon their duties, make solemn oath be- 
 fore one of the inspectors herein provided for, to be recorded with the 
 certificate, that he will faithfully and honestly, according to his best skill 
 and judgment, perform all the duties required of him by this act, without 
 concealment or reservation ; and if any such engineer, pilot, or any 
 witness summoned under this act as a witness, shall, when under exami-
 
 APPENDIX. 633 
 
 nation on oath, knowingly and intentionally falsify the truth, such person 
 shall be deemed guilty of perjury, and if convicted be punished accord- 
 ingly. 
 
 Sec. 39. Aiid be it further enacted, That the supervising inspectors ap- 
 pointed under the provisions of this act, shall, within their respective dis- 
 tricts, under the direction of the secretary of the treasury, take the ex- 
 amination, or receive the statements in writing, of persons of practical 
 knowledge and experience in the navigation of steam vessels, the con- 
 struction and use of boilers, engines, machinery, and equipments, touch- 
 ing the form, material, and construction of engines and their appurte- 
 nances ; the causes of the explosion of boilers and collapse of flues and 
 the means of prevention ; the kind and description of safety-valves, water 
 and steam gauges or indicators ; equipments for the extinguishment of 
 fires, and for the preservation of life in case of accident, on board of such 
 vessels, and all other means in use or proper to be adopted, for the better 
 security of the lives of persons on board vessels propelled in whole or in 
 part by steam ; the advantages and disadvantages of the different descrip- 
 tions of boilers, engines, and their appurtenances, safety-valves, water and 
 steam gauges or indicators, equipments for the prevention or extinguish- 
 ment of fires, and the preservation of life. in case of accident, in use on 
 board such vessels ; whether any, and what farther legislation is necessary 
 or proper for the better security of the lives of pei'sons on board such 
 steam vessels ; which examination and statements so taken and received 
 shall be transmitted to the secretary of the treasury, at sucli time as he 
 shall prescribe. 
 
 Sec. 40. And he it further enacted. That it shall be the duty of the 
 secretary of the treasury to cause such interrogatories to be prepared and 
 published as in his opinion may be proper to elicit the information con- 
 templated by the preceding section, and upon the receipt of the examina- 
 tion and statements taken by the inspectors shall report the same to Con- 
 gress, together with the recommendation of such further provisions as he 
 may deem proper to be made for the better security of the lives of per- 
 sons on board steam vessels. 
 
 Sec. 41. And he it further enacted, That all penalties imposed by this 
 act may be recovered in an action of debt by any person who will sue 
 therefor in any court of the United States. 
 
 Sec. 42. And he it further enacted, That this act shall not apply to 
 public vessels of the United States or vessels of other countries ; nor to 
 steamers used as ferry-boats, tug-boats, towing-boats, nor to steamers not 
 exceeding one hundred and fifty tons burden and used in whole or in part 
 for navigating canals. The inspection and certificate required by this act 
 shall in all cases of ocean steamers constructed under contract with the 
 United States for the purpose, if desired, of being converted into war
 
 634 APPENDIX. 
 
 steamers, be made by a chief engineer of the navy, to be detailed for that 
 service by the secretary of the navy, and he shall report both to said 
 secretary and to the supervising inspector of the district where he shall 
 make any inspection. 
 
 Sec. 43. And he it further enacted, That all such parts of this act as 
 authorize the appointment and qualification of inspectors, and the licens- 
 ing of engineers and pilots, shall take effect upon the passage thereof, and 
 that all other parts of this act shall go into effect at the times and places 
 as follows : In the districts of New Orleans, St. Louis, Louisville, Cincin- 
 nati, Wheeling, Pittsburgh, Nashville, Mobile, and Galveston, on the first 
 day of January next, and in all other districts on the first day of March 
 next. . 
 
 Sec. 44. And he it further enacted, That all parts of laws heretofore 
 made, Avhich are suspended by or are inconsistent with this act, are hei-e- 
 by repealed. 
 
 ACT OF 1852, CHAPTER CXIII. (10 U. S. Stats, at Large, 140). 
 An Act to establish certain Post-roads, and for other Purposes. 
 
 Sec. 5. And he it further enacted. That no collector or other officer of 
 the customs, shall permit any ship or vessel, arriving within any port or 
 collection district of the United States, to make entry or break bulk until 
 all letters on board the same shall be delivered into the post-office at or 
 nearest said port or place, nor until the captain or commander of such 
 ship or vessel shall have signed and sworn to a declaration before such 
 collector or officer of the customs, in the form and to the effect following, 
 that is to say : 
 
 " I, A. B., commander of the (state the name of the ship or vessel) 
 arriving from (state the place), and now lying in the port of (state the 
 name of the port), do, as required by law, solemnly swear (or affirm, as 
 the case may be) that I have, to the best of my knowledge or belief, de- 
 livered or caused to be delivered into the post-office at or neai-est said 
 port, every letter and every bag, parcel, or package of letters that were 
 on board the (state the name of the ship or vessel) during her last voy- 
 age, and that I have so delivered or caused to be delivered all such letters, 
 bags, parcels, and packages as were in my possession or under my power 
 or control." 
 
 And the collector and every officer of the customs at every port, with- 
 out special instructions, and every special agent of the post-office depart- 
 ment, when instructed by the postmaster-general to make examinations 
 and seizures, shall carefully search every vessel for letters which may be
 
 APPENDIX. 635 
 
 on board, or have been carried or transported contrary to law ; and each 
 and every of such officers and agents, and every marshal of the United 
 States and his deputies, shall at all times have power to seize all letters, 
 and packages, and parcels, containing letters which shall have been sent 
 or conveyed contrary to law on board any ship or vessel, or on or over 
 any post-route of the United States, and to convey such letters to the 
 nearest post-office ; or may, if the postmaster-general and the secretary 
 of the treasury shall so direct, detain the said letters, or any part thereof, 
 until two months after the trial and final determination of all suits and 
 pi'oceedings which may at any time, within six months after such seizure, 
 be brought against any person for sending, or cari-ying, or transporting 
 any such letters contrary to any provisions of any act of Congress ; and 
 one half of any penalties that may be recovered for the illegal sending, 
 carrying, or transportation of any such letters shall be paid to the officer 
 so seizing, and the other half to the use of the post-office department ; 
 and every package or parcel so seized, in which any letter shall be con- 
 cealed, shall be foi'feited to the United States, and the same proceedings 
 may be had to enforce such forfeiture as are authorized in respect to 
 good[s], wares, and merchandise forfeited by reason of any violation of 
 the revenue laws of the United States ; and all laws for the benefit and 
 protection of officers of the customs seizing goods, wares, or merchandise, 
 for a violation of any revenue law of the United States, shall apply to 
 the officers and agents making seizures by virtue of this act. 
 
 ACT OF 1852, CHAPTER IV. (10 U. S. Stats, at Large, 149). 
 
 An Act authorizing the Secretary of the Treasury to issue Registers to Vessels in certain 
 
 cases. 
 
 Be it enacted hy the Senate and House of Representatives of the United 
 States of America i?i Congress assembled, That the secretary of the 
 treasury be, and he hereby is, authorized to issue a register or enrolment 
 for any vessel built in a foreign country, whenever such vessel may 
 have been or shall hereafter be wrecked in the United States, and have 
 been, or shall hereafter be, purchased and repaired by a citizen or citizens 
 thereof: Provided, That it shall be proved to the satisfaction of the sec- 
 retary of the treasury that the repairs put upon such vessel shall be equal 
 to three fourths of the cost of said vessel when so repaired.
 
 636 APPENDIX. 
 
 ACT OF 1853, CHAPTER LXXX. (10 U. S. Stats, at Large, 168). 
 Compensation to Seamen sent home as Witnesses. 
 
 There shall be paid to such seaman or other person as has been or shall 
 be sent to the United States from any foreign port, station, sea, or ocean, 
 by any United States minister, charge d'affaires, consul, commander, or 
 captain, to give testimony in any criminal case which has been or may be 
 depending in any court of the United States, such compensation as the 
 court which had or shall have cognizance of the crime, shall adjudge to 
 be right and proper, not to exceed one dollar for each day the said sea- 
 man or person has been or shall be necessarily on the voyage, and arriv- 
 ing at the place of examination or trial, exclusive of sustenance and 
 transportation ; the court to take into consideration, in fixing said com- 
 pensation, the condition of said seaman or witness ; whether his voyage has 
 been broken up, to his injury, by his being sent to the United States, 
 or not. 
 
 If the said seaman or person has been or shall be transported in an 
 armed vessel of the United States, no charge for sustenance or transpor- 
 tation shall be made ; if in qny other vessel, the court may adjudge what 
 compensation shall be paid to the captain of said vessel, and the same 
 shall be paid accordingly : Provided, That in no case shall transportation 
 and subsistence be allowed at a rate exceeding fifty cents per diem. 
 
 ACT OF 1853, CHAPTER XCVI. (10 U. S. Stats, at Large, 182). 
 
 An Act to Supply Deficiencies in the Appropriations for the Sei-vice of the Fiscal Year end- 
 ing the thirtieth of June, one thousand eight hundred and ffty-three. 
 
 For expenses Avhich may be incurred in acknowledging the services of 
 the masters and crews of foreign vessels in rescuing American citizens 
 and American vessels from shipwreck, two thousand dollars : Provided, 
 That the money shall be expended under the direction of the President 
 of the United States. 
 
 ACT OF 1855, CHAPTER CXXXIH. (10 U. S. Stats, at Large, 62-4). 
 
 An Act to Remodel the Diplomatic and Consular Systems of the United States. 
 
 Sec. 15. And he it further enacted, That no consul or commercial 
 a""ent of the United States shall discharge any mariner, being a citizen
 
 APPENDIX. 637 
 
 of the United States, in a foreign port, Without requiring the payment of 
 the two months' wages to which said mariner is entitled under the pro- 
 visions of the act of February twenty-eight, eighteen hundred and three, 
 unless, upon due investigation into the circumstances under wliich the 
 master and mariner have jointly applied for such discharge, and on a 
 private examination of such mariner by the consul or commercial agent, 
 separate and apart from all officers of the vessel, the consul or commer- 
 cial agent shall be satisfied that it is for the interest and welfare of such 
 mariner to be so discharged ; nor shall any consul or commercial agent 
 discharge any mariner as aforesaid without requiring the full amount of 
 three months' wages, as provided by the above-named act, unless under 
 sucli circumstances as will, in his judgment, secure the United States 
 from all liability to expense on account of such mariner : Provided, That 
 in the cases of stranded vessels', or vessels condemned as unfit for ser- 
 vice, no payment of extra wages shall be required ; and where any 
 mariner, after his discharge, shall have incurred expense at the port of 
 discharge before shipping again, such expense shall be paid out of the 
 two months' wages aforesaid, and the balance only delivered to him. 
 
 Sec. 1G. And be it further enacted, That every consul and commercial 
 agent of the United States shall keep a detailed list of all mariners dis- 
 charged by them respectively, specifying their names and the names of 
 the vessels from which they were discharged, and the payments, if any, 
 afterwards made on account of each, and shall make official returns of 
 said lists half-yearly to the treasury department. 
 
 Sec. 17. And he it further enacted, That every consul and commercial 
 agent of the United States shall make an official entry of every discharge 
 which they may grant, respectively, on the list of the crew and shipping 
 articles of the vessel from which such discharge shall be made, specifying 
 the payment, if any, Avhich has been required in each case ; and if they 
 shall have remitted the payment of the two months' wages to which the 
 mariner is entitled, they shall also certify on said shipping list and arti- 
 cles that they have allowed the remission, upon the joint application of 
 the master and mariner therefor, after a separate examination of tJK- 
 mariner, after a due investigation of all the circumstances, and after 
 being satisfied that the discharge so allowed, without said payment, is for 
 the interest and welfare of the mariner ; and if they shall have remitted 
 the payment of the one month's Avages to which the United States is 
 entitled, they shall certify that they have allowed the remission, after a due 
 investigation of all the circumstances, and after being satisfied that tlicy 
 are such as will, in their judgment, secure the United States from all lia- 
 bility to expense on account of such mariner; and a copy of all such 
 entries and certificates shall be annually transmitted to the treasury de- 
 
 voL. I. 54
 
 638 APPENDIX. 
 
 partraent by the proper officei-s of the customs in the several ports of the 
 United States. 
 
 Sec. 18. And be it further enacted, That if any consul or commercial 
 agent of the United States, upon discharging a mariner without requiring 
 the payment of the one month's wages to which the United States is 
 entitled, shall neglect to certify in the manner required in such case by 
 the preceding section of this act, he shall be accountable to the treasury 
 department for the sum so remitted. And in any action brought by a 
 mariner to recover the extra wages to which he is entitled under the act 
 of February twenty-eighth, eighteen hundred and three, the defence that 
 the payment of such wages was duly remitted shall not be sustained 
 without the production of the certificate in such case required by this 
 act, 01', when its non-production is accounted for, by the production of a 
 certified copy thereof; and the truth of the facts certified to, and the pro- 
 priety of the remission, shall be still open to investigation. 
 
 Sec. 19, And he it further enacted, That if, upon the application of 
 any mariner, it shall appear to the consul or commercial agent that he is 
 entitled to his discharge under any act of Congress, or according to the 
 general principles of the maritime law as recognized in the United States, 
 he shall discharge such mariner, and shall require of the master the 
 payment of three months' wages, as provided in the act of Februaiy 
 twenty-eighth, eighteen hundred and three, and shall not remit the same, 
 or any part thereof, except in the cases mentioned in the proviso of the 
 ninth clause of the first section of the act of July twentieth, eighteen 
 hundred and forty, to the following efiect : "• If the consul or other com- 
 mercial agent shall be satisfied the contract has expired, or the voyage 
 been protracted by circumstances beyond the control of the master, and 
 without any design on his part to violate the articles of shipment, then he 
 may, if he deems it just, discharge the rnariner without exacting the 
 three months' additional pay." 
 
 Sec. 20. And he it further enacted, That every consul and commercial 
 agent, for any neglect to perform the duties enjoined upon him by this 
 act, shall be liable to any injured person for all damages occasioned 
 thereby ; and, for any violation of the provisions of the fifteenth and 
 nineteenth sections of this act, shall also be liable to indictment, and to a 
 penalty in the manner provided by the eighteenth clause of the first sec- 
 tion of the act of July twentieth, eighteen hundred and forty.
 
 APPENDIX. 639 
 
 ACT OF 1855, CHAPTER CCXIII. (10 U. S. Stats, at Large, 715). 
 
 An Act to Regulate the Carriage of Passengers in Steamships and other Vessels. 
 
 Sectiox 1. Be it enacted hy the Senate and House of Eepresentatives of 
 the United States of America in Congress assembled, That no master of 
 any vessel owned in -whole or in part by a citizen of the United States, or 
 by a citizen of any foreign country, shall take on board such vessel, at 
 any foreign port or place other than foreign contiguous territory of the 
 United States, a greater number of passengers than in proportion of one 
 to every two tons of such vessel, not including children under the age of 
 one year in the computation, and computing two children over one and 
 under eight years of age as one passenger. That the spaces appro- 
 priated for the use of such passengers, and which shall not be occupied 
 by stores or other goods, not the personal baggage of such passengers, 
 shall be in the following proportions, viz. : On the main and poop decks 
 or platforms, and in the" deck houses, if there be any, one passenger for 
 each sixteen clear superficial feet of deck, if the height or distance be- 
 tween the decks or platform shall not be less than six feet ; and on the 
 lower deck (not being an orlop deck), if any, one passenger for eighteen 
 such clear superficial feet, if the height or distance between the decks or 
 platforms shall not be less than six feet, but so as that no passenger shall 
 be carried on any other deck or platform, nor upon any deck where the 
 height or distance between decks is less than six feet, with intent to bring 
 such passenger to the United States, and shall leave such port or place 
 and bring the same, or any number thereof, within the jurisdiction of the 
 United States; or if any such master of any vessel shall take on board 
 his vessel, at any port or place within the jurisdiction of the United 
 States, any greater number of passengers than in the proportion aforesaid, 
 to the space aforesaid, or to the tonnage aforesaid, with intent to carry 
 the same to any foreign port or place other than foreign contiguous terri- 
 tory as aforesaid, every such master shall be deemed guilty of a misde- 
 meanor, and, upon conviction thereof, before any circuit or district court 
 of the United States, shall, for each passenger taken on board beyond the 
 limit aforesaid, or the space aforesaid, be fined in the sum of fifty doHars, 
 and may also be imprisoned, at the discretion of the judge before whom 
 the penalty shall be recovered, not exceeding six months ; but should it 
 be necessary, for the safety or convenience of the vessel, tliat any portion 
 of her cargo, or any other articles or article, should be placed on, or 
 stored in, any of the decks, cabins, or other places appropriated to the 
 use of passengers, the same may be placed in lockers or enclosures pre- 
 pared for the purpose, on an exterior surface impervious to the wave, 
 capable of being cleansed in like manner as the decks or platforms of the
 
 640 APPENDIX. 
 
 vessel. In no case, however, sliall the places thus provided be deemed 
 to be a part of the space allowable for the use of passengers, but the 
 same shall be' deducted therefrom, and in all cases where pi'epared or 
 used, the upper surface of said lockers on enclosed spaces shall be 
 deemed and taken to be the deck or platform from which measurement 
 shall be made for all the purposes of this act. It is also provided, that 
 one hospital, in the spaces appropriated to passengers, and separate there- 
 from by an appropriate partition, and furnished as its purposes require, 
 may be prepared, and, when used, may be included in tlie space allowable 
 for passengers, but the same shall not occupy more than one hundred 
 superficial feet of deck or platform : Provided, That on board two-deck 
 ships, where the height between the decks is seven and one half feet or 
 more, fourteen clear superficial feet of deck shall be the proportion re- 
 quired for each passenger. 
 
 Sec. 2. And be it further enacted, That no such vessel shall have 
 more than two tiers of berths, and the interval, between the lowest part 
 thereof and the deck or platform beneath, shall not be less than nine 
 inches, and the berths shall be well constructed, parallel with the sides of 
 the vessel, and separated from each other by partitions, as berths ordi- 
 narily are separated, and shall be at least six feet in length, and at least 
 two feet in width, and each berth shall be occupied by no more than one 
 passenger ; but double berths of twice the above width may be con- 
 sti'ucted, each berth to be occupied by no more, and by no other, than 
 two women, or by one woman and two children under the age of eight 
 years, or by husband and wife, or by a man and two of his own children 
 under the age of eight years, or by two men, members of the same 
 family ; and if there shall be any violation of this section in any of its 
 provisions, then the master of the vessel, and the ov.ners" thereof, shall 
 severally forfeit and pay the sum of five dollars for each passenger on 
 board of said vessel on such voyage, to be recovered by the United States 
 in any port where such vessel may arrive or depart. 
 
 Sec. 3. And he it further enacted, That all vessels, whether of the 
 United States or any foreign country, having suihcient capacity or space, 
 according to law, for fifty or more passengers (other than cabin passen- 
 gers), shall, when employed in transporting such passengei's between the 
 United States and Europe, have, on the upper deck, for the use of such 
 passengers, a house over the passage-way leading to the apartments allot- 
 ted to such passengers below deck, firmly secured to the deck or comb- 
 ings of the hatch, with two doors, the sills of which shall be at least one 
 foot above the deck, so constructed, that one door or window in such 
 house may at all times be left open for ventilation; and all vessels so 
 employed, and having the capacity to carry one hundred and fifty such 
 passengers or more, shall have two such houses ; and the stairs or ladder,
 
 APPENDIX. 641 
 
 leading down to the aforesaid department, shall be furnished with a hand- 
 rail of wood or strong rope ; but booby hatches may be substituted for 
 such houses. 
 
 Sec. 4. And he it farther enacted, That every such vessel so em- 
 ployed, and having the legal capacity for more than one hundred such 
 passengers, shall have at least two ventilators to purify the apartment or 
 apartments occupied by such passengers ; one of which shall be inserted 
 in the after part of the apartment or apartments, and the other shall be 
 placed in the forward portion of the apartment or apartments, and one of 
 them shall have an exhausting cap to carry off the foul air, and the other 
 a receiving cap to carry down the fresh air ; which said ventilators shall 
 have a capacity proportioned to the size of the apartment or apartments 
 to be purified, namely : if the apartment or apartments will lawfully au- 
 thorize the reception of two hundred such passengers, the capacity of 
 such ventilators shall each be equal to a tube of twelve inches diameter 
 in the clear, and in proportion for larger or smaller apartments ; and all 
 said ventilators shall rise at least four feet six inches above the upper 
 deck of any such vessel, and be of the most approved form and construc- 
 tion ; but if it shall appear, from the report, to be made and approved, as 
 hereinafter provided, that such vessel is equally well ventilated by any 
 other means, such other means of ventilation shall be deemed and held to 
 be a compliance with the provisions of this section. 
 
 Sec. 5. And he it further enacted, That every vessel carrying more 
 than fifty such passengers, shall have for their use on deck, housed and 
 conveniently arranged, at least one camboose or cooking range, the 
 dimensions of which shall be equal to four feet long and one foot six 
 inches wide for every two hundred passengers ; and provision shall be 
 made in the manner afoi'esaid, in this ratio, for a greater or less number 
 of passengers ; but nothing herein contained shall take away the right to 
 make such arrangements for cooking between decks, if that shall be 
 deemed desirable. 
 
 Sec. 6. And he it farther enacted, That all vessels employeil as afore- 
 said, shall have on board, for the use of such passengcrs^t the time of 
 leaving the last port whence such vessel shall sail, well secured under 
 deck, for each passenger, at least twenty pounds of good navy bread, fif- 
 teen pounds of rice, fifteen pounds of oatmeal, ten pounds of wheat flour, 
 fifteen pounds of peas and beans, twenty pounds of potatoes, one pint of 
 vinegar, sixty gallons of fresh water, ten pounds of salted pork, and ten 
 pounds of salt beef, free of bone, all to be of good quality; but at 
 places where either rice, oatmeal, wheat flour, ov peas and beans cannot 
 be procured, of good quality and on reasonable terms, the quanlity of 
 either or any of the other last-named articles may be increased and sub- 
 
 54*
 
 642 APPENDIX. 
 
 stitutc'd tlicrefor ; ami, in case potatoes cannot be procured on reasonable 
 terms, one pound of cither of said articles may be substituted in lieu of 
 five pounds of potatoes ; and the captains of such vessels shall deliver to 
 each passenger at least one tenth part of the aforesaid provisions Aveekly, 
 commencing on the day of sailing, and at least three quarts of water 
 daily ; and if the passengers on board of any such vessel in which the 
 provisions and water herein required shall not have been provided as 
 aforesaid, shall, at any time, be put on short allowance during any voyage, 
 the master or owner of any such vessel shall pay to each and every pas- 
 senger who shall have been put on short allowance, the sum of three dol- 
 lars for each and every day they may have been put on short allowance, 
 to be recovered in the circuit or district court of the United States ; and 
 it shall be the duty of the captain or master of every such ship or vessel 
 to cause the food and provisions of all the passengers to be well and 
 properly cooked daily, and to be served out and distributed to them at 
 regular and stated hours, by messes, or in such other manner as shall be 
 deemed best and most conducive to the health and comfort of such pas- 
 sengers, of which hours and manner of distribution, due and sufficient 
 notice shall be given. If the captain or master of any such ship or ves- 
 sel, shall wilfully fail to furnish and distribute such provisions, cooked as 
 aforesaid, he shall be deemed guilt}^ of a misdemeanor, and upon convic- 
 tion thereof before any circuit or district court of the United States, shall 
 be fined not more than one thousand dollars, and shall be ini[)risoned 
 for a term not exceeding one year: Provided, That the enforcement 
 of this penalty shall not affect the civil responsibility of the captain or 
 master and owners, to such passengers as may have suffered from said 
 default. 
 
 Sec. 7. And he it further enacted, That the captain of any such vessel 
 so enijiloyed, is hereby authorized to maintain good discipline and such 
 habits of cleanliness among such passengers as will tend to the presei-va- 
 tion and promotion of health ; and to that end he shall cause such regu- 
 lations as he may adopt for this purpose to be posted up, before sailing, 
 on board sucl^essel, in a place accessible to such passengers, and shall 
 keep the same so posted up during the voyage ; and it is hereby made 
 the duty of said captain to cause the apartments occupied by such pas- 
 sengers to be kept at all times in a clean, healthy state ; and the owners 
 of every such vessel so employed, are required to construct the decks and 
 all parts of said apartment so that it can be thoroughly cleansed ; and 
 they shall also provide a safe, convenient privy or water-closet for the 
 exclusive use of every one hundred such passengers. And when the 
 weather is such that said passengers cannot be mustered on deck with 
 their bedding, it shall be the duty of the captain of every such vessel to
 
 APPENDIX. 643 
 
 cause the deck, occupied bj such passengers, to be cleansed ■with chloride 
 of lime, or some other equally elRcient disinfecting agent, and also at 
 such other times as said captain may deem necessary. 
 
 Sec. 8. And be it further enacted, That the master and owner or 
 owners of any such vessel so employed, which shall not be provided with 
 the house or houses over the passage-ways, as prescribed in the third 
 section of this chapter, or with ventilators as prescribed in the fourth 
 section of this chapter, or with the cambooses or cooking ranges, with the 
 houses over them, as prescribed in tlie fifth section of this chapter, shall 
 severally forfeit and pay to the United States the sum of two hundred 
 dollars for each and every violation of, or neglect to conform to, the pro- 
 visions of each of said sections, and fifty dollars for each and every neglect 
 or violation of any of the provisions of the seventh section of this chap- 
 ter, to be I'ecovered by suit in any circuit or district court of the United 
 States Avithin the jurisdiction of which the said vessel may arrive, or 
 from which she may be about to depart, or at any place within the juris- 
 diction of such courts, wherever the owner or owners, or captain of such 
 vessel may be found. 
 
 Sec. 9. And he it further enacted, Tliat the collector of the customs 
 at any port of the United States, at which any vessel so eniplo^ed shall 
 arrive, or from which any such vessel shall be about to depart, shall ap- 
 point and direct one or more of the inspectors of the customs for such 
 port, to examine such vessel, and report in Avriting to such collector, 
 Avhether the requirements of law have been complied with in respect to 
 such vessel ; and if such report shall state such compliance, and shall be 
 approved by such collector, it shall be deemed and held as prima, facie 
 evidence thereof. 
 
 Sec. 10. And be it further enacted, That the provisions, requisitions, 
 penalties, and liens of this act, relating to the space in vessels appro- 
 priated to the use of passengers, are hereby extended and made applica- 
 ble to all spaces appropriated to the use of steerage passengers in vessels 
 propelled in whole or in part by steam, and navigating from, to, and be- 
 tween the ports, and in manner as in this act named, and" to such vessels 
 and to the masters thereof; and so much of the act entitled " An act to 
 amend an act entitled an act to provide for the better security of the lives 
 of passengers on board of vessels propeHed in whole ov in part by steam, 
 and lor other purposes," api)rovcd August thirtieth, eighteen liundred 
 and fifty-two, as conflicts with this act, is hereby repealed ; and the space 
 appropriated to the use of steerage passengers in vessels so as above pro- 
 pelled and navigated, is hereby subject to the supervision and in>i)ection 
 of the collector of the customs at any port of the United States at which 
 any such vessel shall arrive, or from which she shall be about to de{)art ; 
 and the same shall be examined and reported in the same manner and
 
 644 APPENDIX. 
 
 by the same oflicers by the next preceding section directed to examine 
 and report. 
 
 Sec. 11. And he it further enacted, That the vessels bound from any 
 port in the United States to any poi't or place in the Pacific Ocean, or on 
 its tributaries, or from any snch port or place to any port in the United 
 States on the Atlantic or its tributaries, shall be subject to the foregoing 
 provisions regulating the carriage of passengers in merchant vessels, ex- 
 cept so much as relates to provisions and water ; but the owners and 
 masters of all such vessels shall in all cases furnish to each passenger the 
 daily supply of water therein mentioned; and they shall furnish a suffi- 
 cient supply of good and wholesome food, properly cooked ; and in case 
 they shall fail so to do, or shall provide unwholesome or unsuitable pro- 
 visions, they shall be subject to the penalty provided in the sixth section 
 of this chapter, in case the passengers are put on short allowance of water 
 or provisions. 
 
 Sec. 12. A?id he it further enacted, That the captain or master of any 
 ship or vessel arriving in the United States, or any of the tei*ritories 
 thereof, from any foreign 'place whatever, at the same time that he de- 
 livers a manifest of the cargo, and if there be no cargo, then at the time 
 of making report or entry of the ship or vessel, pursuant to law, shall 
 also deliver and report to the collector of the district in which such ship 
 or vessel shall arrive, a list or manifest of all the passengers taken on 
 board of the said ship or vessel at any foreign port or place ; in which 
 list or manifest it shall be the duty of the said master to designate par- 
 ticularly the age, sex, and occupation of the said passengers respectively, 
 the part of the vessel occupied by each during the voyage, the country to 
 which they severally belong, and that of which it is their intention to 
 become inhabitants ; and shall further set forth whether any and what 
 number have died on the voyage ; which list or manifest shall be sworn 
 to by the said master, in the same manner as directed by law in relation 
 to the manifest of the cargo ; and the refusal or neglect of the master 
 aforesaid to comply with, the provisions of this section, or any part 
 thei'eof, shall incur the same penalties, disabilities, and forfeitures as are 
 provided for a refusal or neglect to report and deliver a manifest of the 
 cargo aforesaid. 
 
 Sec. 13. And he it further enacted, That each and every collector of 
 the customs, to whom such manifest or list of passengers as aforesaid 
 shall be delivered, shall quarter-yearly retarn copies thereof to the sec- 
 retary of state of the United States, by whom statements of the same 
 shall be laid before congress at each and every session. 
 
 Sec. 14. And he it further enacted, That in case there shall have occur- 
 red on board any ship or vessel arriving at any port or place within the 
 United States or its ten-itories, any death or deaths among the passengers
 
 APPENDIX. 645 
 
 (other than cabin passengers), the master, or captain, or owner, or con- 
 signee of such ship or vessel, shall, within twenty-four hours after the 
 time within which the report and list or manifest of passengers mentioned 
 in section twelve of this act, is required to be delivered to the collector of 
 the customs, pay to the said collector the sum of ten dollars for each and 
 every passenger above the age of eight years, who shall have died on the 
 voyage by natural disease ; and the said collector shall pay the money 
 thus received, at such times and in such manner as the secretary of the 
 treasury, by general rules, shall direct, to any board or commission ap- 
 pointed by and acting under the authority of the State within which the 
 port where such ship or vessel arrived is situated, for the care and px'otec- 
 tion of sick, indigent, or destitute emigrants, to be applied to the objects 
 of their appointment ; and if there be moi'e than one board or commis- 
 sion who shall claim such paynlent, the secretary of the treasury, for the 
 time being, shall determine which is entitled to receive the same, and his 
 decision in the premises shall be final and without appeal : Provided, That 
 the payment shall, in no case, be awarded or made to any board, or com- 
 mission, or association, formed for the protection or advancement of any 
 particular class of "emigrants, or emigrants of any particular nation or 
 creed ; and if the master, captain, owner, or consignee of any ship or 
 vessel, refuse or neglect to pay to the collector the sum and sums of 
 money required, and within the time prescribed by this section, he or 
 they shall severally forfeit and pay the sum of fifty dollars, in addition to 
 such sura of ten dollars, for each and every passenger upon Avhose death 
 the same has become payable, to be I'ecovered by the United States, in 
 any circuit or district court of the United States where such vessel may 
 ax'rive, or such master, captain, owner, or consignee may reside ; and when 
 recovered, the said money shall be disposed of in the same manner as is 
 directed with respect to the sum and sums required to be paid to the col- 
 lector of customs. 
 
 Sec. 15. And he it further enacted, That the amount of the several 
 penalties imposed by the foregoing provisions regulating the carriage of 
 passengers in merchant vessels, shall be liens on the vessel or vessels vio- 
 lating those provisions, and such vessel or vessels shall be libelled there- 
 for in any circuit or district court of the United States, where such vessel 
 or vessels shall arrive. 
 
 Sec. 16. And he it further enacted, That all and every vessel or vessels 
 which shall or may be employed by the American Colonization Society 
 or the colonization society of any State, to transport, and which shall 
 actually transport, from an}' port or ports of the United States to any 
 colony or colonies on the west coast of Africa, colored emigrants, to reside 
 there, shall be, and the same are hereby, subjected to the operation of the
 
 646 APPENDIX. 
 
 foregoing provisions, regulating the carriage of passengers in merchant 
 vessels. 
 
 Sec. 17. A^id be it further enacted, That the collector of the customs 
 shall examine each emigrant ship or vessel, on its arrival at his port, and 
 ascertain and report to the secretary of the treasury the time of sailing, 
 the length of the voyage, the ventilation, the number of passengers, their 
 space on board, their food, the native country of the emigrants, the num- 
 ber of deaths, the age and sex of those who died during the voyage ; to- 
 gether with his opinion of the cause of the mortality, if any, on board, 
 and, if none, what precautionary measures, arrangements, or habits are 
 supposed to have had any, and what agency in causing the exemption. 
 
 Sec. 18. And he it further enacted, That this act shall take effect, with 
 respect to vessels sailing from ports in the United States on the eastern 
 side of the continent, within thirty days from the time of its approval ; 
 and with respect to vessels sailing from ports in the United States on the 
 western side of the continent, and from ports in Europe, witliin sixty days 
 from the time of its approval ; and with respect to vessels sailing from 
 ports in other parts of the world, within six months from the time of its 
 approval. 
 
 And it is hereby made the duty of the secretary of state to give notice, 
 in the ports of Europe, and elsewhere, of this act, in such manner as he 
 shall deem proper. 
 
 Sec. 19. And he it further enacted, That from and after the time that 
 this act shall take effect with respect to any vessels, then, in respect to 
 such vessels, the act of second March, eighteen hundred and nineteen, en- 
 titled " An act regulating passenger ships and vessels," the act of twenty- 
 second of February, eighteen hundred and forty-seven, entitled " An act 
 to regulate the carriage of passengers in merchant vessels ; " the act of 
 second March, eighteen hundred and forty-seven, entitled "An act to 
 amend an act entitled ' An act to regulate the carriage of passengers in 
 merchant vessels,' and to determine the time when said act shall take 
 effect ; " the act of thirty-first January, eighteen hundred and forty-eight, 
 entitled " An act exempting vessels employed by the American Coloniza- 
 tion Society in ti-ansj^orting colored emigrants from the United States to 
 the coast of Africa from the provisions of the acts of the twenty-second 
 February and second of March, eighteen hundred and forty-seven, regu- 
 lating the carriage of passengers in merchant vessels ; " the act of seven- 
 teenth May, eighteen hundred and forty-eight, entitled " An act to provide 
 for the ventilation of passenger vessels, and for other purposes ; " and the 
 act of third March, eighteen hundred and forty-nine, entitled " An act to 
 extend the pi'ovisions of all laws now in force relating to the carriage of 
 passengers in merchant vessels, and the regulation thereof," are hereby
 
 APPENDIX. 647 
 
 repealed. But nothing in this act contained shall in anywise obstruct or 
 prevent the prosecution, recovery, distribution, or remission of any fines, 
 penalties, or forfeitures, which may have been incurred in respect to any 
 vessels prior to the day this act goes into effect, in respect to such vessels, 
 under the laws hereby repealed, for wliich purpose the said laws shall 
 continue in force. 
 
 But the secretary of the treasury may, in his discretion, and upon such 
 conditions as he shall think proper, discontinue any such prosecutions, or 
 remit or modify such penalties. 
 
 ACT OF 1856, CHAPTER IV. (11 U. S. Stats, at Large, 1). 
 
 An Act authorizing the Secretary of the Treasunj to change the Names of Vessels in caiain 
 
 Cases. 
 
 J3e it enacted hy the Senate and House of Representatives of the United 
 States of America in Congress assembled, That the secretary of the treas- 
 ury be, and hereby is, authoi-ized to permit the owner or owners of any 
 vessel to change the name of the same, when, in his opinion, there shall 
 b6 sufficient cause for so doing ; and he may establish sucli rules and 
 regulations as he shall deem proper for that purpose. 
 
 ACT OF 1856, CHAPTER CXXVII. (11 U. S. Stats, at Large, 59). 
 
 An Act to Regulate the Diplomatic and Consular Systems of the United States, and to pro- 
 vide for the Discharge and Desertion of Seamen. 
 
 Sec. 20. Aiid be it further enacted, That the compensation provided by 
 this act shall be in full for all the services and personal expenses wliich 
 shall be rendered or incurred by the officers or persons respectively for 
 whom such compensation is pi'ovided, of whatever nature or kind such 
 services or personal expenses may be, or by whatever treaty, law, or in- 
 structions such services or personal expenses so rendered or incurred are 
 or shall be required ; and no allowance, other than such as is provided by 
 this act, shall be made in any case for the outfit or return home of any 
 such officer or person ; and no consular officer shall, nor shall any person 
 under any consular officer, make any charge or receive, directly or indi- 
 rectly, any compensation, by way of conunission or otherwise, lor receiv- 
 ing or disbursing the wages or extra wages to which any seaman or mari- 
 ner shall be entitled who shall be discharged in any foreign country, or for 
 any money advanced to any such seaman or mariner who shall seek relief 
 from any consulate or commercial agency ; nor shall any consular officer, 
 or any person under any consular officer, be interested, directly or iudi-
 
 648 
 
 APPENDIX. 
 
 rectly, in any profit derived from clothing, boarding, or otherwise supply- 
 ing or sending home any such seaman or mariner : Provided, That such 
 prohibition as to profit shall not be construed to relieve or prevent any 
 such officer who shall be the owner or otherwise interested in any ship or 
 vessel of the United States, from transporting in such ship or vessel any 
 such seaman or mariner, or from receiving or being interested in such 
 reasonable allowance as may be made for such transportation, under and 
 by virtue of the fourth section of the act, entitled " An act supplementary 
 to tlie act concerning consuls and vice-consuls, and for the further protec- 
 tion of American seamen," approved February twenty-eighth, eighteen 
 hundred and three. 
 
 Sec. 25. And he it further enacted. That whenever any seaman or mari- 
 ner of any vessel of the United States shall desert such vessel, the master 
 or commander of such vessel shall note the fact and date of such deser- 
 tion on the list of the crew, and the same shall be officially authenticated 
 at the port or place of the consulate or commercial agency first visited 
 by such vessel after such desertion, if such desertion shall have occui'red 
 in a foreign countiy, or if in such case such vessel shall not visit any 
 place where there shall be any consulate or commercial agency before 
 her return to the United States, or the desertion shall have occurred in 
 this country, the fact and time of such desertion shall be officially authen- 
 ticated before a notary-public immediately at the first port or place where 
 such vessel shall arrive after such desertion ; and all wages that may be 
 due to such seaman or mariner, and whatever interest he may have in the 
 cargo of such vessel, shall be forfeited to and become the property of the 
 United States, and paid over for their use to the collector of the port 
 where the crew of such vessel are accounted for as soon as the same can 
 be ascertained ; first deducting therefrom any expense which may neces- 
 sarily have been incurred on account of such vessel in consequence of 
 such desertion ; and in settling the account of such wages or interest no 
 allowance or deduction shall be made except for moneys actually paid, or 
 goods at a fair price supplied, or expenses incurred to, or for such seaman 
 or mariner, any receipt or voucher from, or ari-angement with such sea- 
 man or mariner, to the contrary notwithstanding. 
 
 Sec. 2G. And be it further enacted, That upon the application of any 
 seaman or mariner for a discharge, if it shall appear to the consular officer 
 that he is entitled to his discharge under any act of Congress, or accord- 
 ing to the general principles or usages of maritime law, as recognized in 
 the United States, he shall discharge such seaman or marinei', and shall 
 require from the master or commander of the ship or vessel from which 
 sucli discharge shall be made, the payment of three months' extra wages, 
 as provided by the act hereinbefore mentioned, approved February 
 twenty-eight, eighteen hundred and three ; and it shall be the duty of
 
 APPENDIX. 649 
 
 such master or commander to pay the same, and no such payment or any 
 part thereof shall be remitted in any case, except such as are mentioned 
 in the proviso of the ninth clause of the act, entitled " An act in addition 
 to the several acts regulating the shipment and discharge of seamen and 
 the duties of consuls," approved July twentieth, eighteen hundred and forty, 
 and as hereinafter provided, and the extra wages required to be paid by 
 the said ninth clause of the last hereinbefore mentioned act, and by this 
 section, shall be applicable to the same purposes and in the same manner 
 as is directed by the said act approved February twenty-eight, eighteen 
 hundred and three, in regard to the extra wages required to be paid 
 thereby ; and if any consular officer, when discharging any seaman or 
 mariner, shall neglect to require the payment of and collect the extra 
 wages required to be paid in the case of the discharge of any seaman or 
 mariner, by either of the said acts, as far as they shall remain in force 
 under this act or by this act, he shall be accountable to the United States 
 for the full amount of their share of such wages, and to such seaman or 
 mariner to the full amount of his share thereof; and if any seaman or 
 mariner shall, after his discharge, have incurred any expense for board or 
 other necessaries at the port or place of his discharge before shipping 
 again, such expense shall be paid out of the share of the three months' 
 Avages to which he shall be entitled, which shall be retained for that pur- 
 pose, and the balance only paid over to him : Provided, however, That in 
 cases of wrecked or stranded ships or vessels, or ships or vessels con- 
 demned as unfit for service, no payment of extra wages shall be required. 
 Sec. 27. And be it further enacted, That every consular officer shall 
 keep a detailed list of all seamen and mariners shipped and discharged 
 by him, specifying their names and the names of the vessels on and from 
 which they shall be shipped and discharged, and the payments, if any, 
 made on account of each so discharged, and also of the number of the 
 vessels arrived and departed, and the amounts of their registered tonnage, 
 and the number of their seamen and mariners, and of those who are pro- 
 tected, and whether citizens of- the United States or not, and as nearly as 
 possible the nature and value of their cargoes, and where produced, and 
 make returns of the same, with their accounts and other returns, to the 
 secretary of the treasury ; and no consular officer shall certify any invoice 
 unless he shall be satisfied that the person making the oath or affirmation 
 thereto is the person he represents himself to be, that he is a credible 
 person, and that the statements made under such oath or affirmation are 
 true ; and he shall, thereupon, by his certificate, state that he was so satis- 
 fied ; and it shall be the duty of every consular officer to furnish to the 
 secretary of the treasury, as often as shall be required, the prices current 
 of all articles of merchandise usually exported to the United States from 
 the port or place in which he shall be located. 
 YOL. I. 5d
 
 650 APPENDIX. 
 
 Sec. 28. And he it further- enacted, That it shall he the duty of every 
 master and commander of a ship or vessel of the United States, whenever 
 he shall have occasion for any consular or other oflicial service, which any 
 consular officer of the United States shall be authorized by law or usage 
 officially to perform, and for which any fees shall be allowed by the said 
 rates or tariffs of fees as aforesaid, to apply to such one of the said officers 
 as may then be officially located at the consulate or commercial agency, if 
 any there be where such service shall be required, to perform such ser- 
 vice, and such master or commander shall pay to such officer such fees as 
 shall be allowed for such service, in pursuance of the provisions of this 
 act ; and if any such master or commander shall omit so to do, he shall 
 be liable to the United States for the amount of the fees lawfully charge- 
 able for such services, as though the said services had been performed 
 by such officer ; and all consular officers are hereby authorized and 
 required to retain in their possession all 4;he papers of such ships and 
 vessels, which shall be deposited with them as directed by law, till pay- 
 ment shall be made of all demands and wages on account of such ships 
 and vessels.
 
 APPENDIX. 651 
 
 AN ACT 
 
 TO PROVIDE FOR THE LICENSING AND GOVERNMENT OF THE PILOTS AND REGU- 
 
 LATING PILOTAGE OP THE PORT OF NEW YORK, 
 
 Passed June 28, 1853. 
 
 EMBODYING THE AMEND5IENTS, 
 
 Passed April 11, 1854, and April 4, 1857. 
 
 ALSO, 
 
 THE BY-LAWS OF THE BOARD OF COMMISSIONERS OF PILOTS FOR THE PORT OF 
 
 NEW YORK. 
 
 The People of the State of New Yorh, represented in Senate and Assemhly, 
 do enact as follows : 
 
 Section 1. There shall be in the city of New York, a board entitled 
 "The Board of Commissioners of Pilots," consisting of five persons, to 
 be elected as soon as convenient after the passage of this act, and to hold 
 their offices respectively for two years from the time of tlieir election, 
 and until othei's shall be elected. 
 
 Sec. 2. Three of such commissioners -shall be elected by the members 
 of the chamber of commerce of the city of New York, at a meeting to 
 be called for the purpose, to be specified in the notice for the meeting, and 
 the certificate of the seci-etary of that body, or other officer regularly per- 
 forming his duties for the time being, shall be prima facie evidence of 
 such election. 
 
 Sec. 3. Two other of such commissioners shall be elected by the presi- 
 dents and vice-presidents of the marine insurance companies of the city 
 of New York, composing or represented in the board of underwriters of 
 said city, at a regular convened meeting of such board, on the notice of 
 their secretary, stating that the election of commissioners will take j)lacc, 
 or of some member of the board by them duly authorized, given in writ- 
 ing, at least one day before the election, stating that the election of com- 
 missioners will take place, and delivered at the office of such company. 
 Each insurance company represented at such meeting sliall be entitled to 
 one vote, and the certificate of the secretary of such board, or of any 
 officer acting in his stead, shall be sufficient prima facie evidence of an 
 election.
 
 652 
 
 APPENDIX. 
 
 Sec. 4. Upon the expiration of the term of office of any commissioner 
 or commissioners, or within thirty days prior thereto, and upon any 
 vacancy occurring by death, resignation, removal from the State, or other 
 cause, another election for the term of two years shall be made by the 
 same class of persons, or authority, as that which made the election to 
 the office so expiring or becoming vacant. 
 
 Sec. 5. Each commissioner, before entering upon the duties of his 
 office, shall take the usual oath of office before an officer authorized to 
 administer oaths, which oath or affirmation shall be filed without delay in 
 the office of the clerk of the city and county of New York. 
 
 Sec. 6. The commissioners shall appoint a secretary, who shall take a 
 like oath, to be filed in like manner as provided in section five, and they 
 may remove him at any time and appoint another, and shall prescribe his 
 duties and compensation. 
 
 Sec. 7. The board shall establish an office in some convenient and 
 proper place in the city of New York, where the commissioners shall 
 meet on the first Tuesday of every month, and as much oftener by ad- 
 journment, or upon a notice given by any one of them, or by the secretary, 
 as circumstances may require. 
 
 Sec. 8. The commissioners shall require their secretary in person, or 
 by deputy, to be in daily attendance at their office on all ordinary busi- 
 ness days, during the reasonable office hours, and sliall cause to be kept 
 by him a proper book or books, in which shall be written all the rules 
 and regulations made by them, and all their official transactions and pro- 
 ceedings, and whatever else may be deemed by them proper and useful, 
 and immediately pertaining to their duties or to the pilot service. They 
 shall also cause to be kept, by their secretary, a register of the names and 
 places of residence of all the pilots who may be licensed by virtue of this 
 act, with the dates of their licenses respectively, and such books may be 
 inspected by any person interested. 
 
 Sec. 9. The commissioners, or a majority of them, shall, with all con- 
 venient speed, proceed to license for such term as they may think proper, 
 so many pilots as they may deem necessary for the port of New York ; 
 and such commissioners may specify in such licenses, diffijrent degrees of 
 qualifications, appropriate to different parts or branches of duty, accord- 
 ing to the competency of the applicant. No license shall be granted to 
 any person holding any license or authority from or under the authority 
 or laws of any other State ; and the said commissioners, or a majority of 
 them, shall have the power and authority to revoke and annul the license 
 of any person so licensed by them to act as a pilot, Avho shall not be 
 attached to a boat approved by said board, or^who shall be guilty of any 
 intoxication or other misconduct while on duty. 
 
 Sec. 10. It shall be the duty of the said commissioners, before they
 
 APPENDIX. 653 
 
 shall grant a license to any person applying therefor, to act as a pilot in 
 pursuance of this act, within one week thereafter, to call such applicant 
 before them, and in presence of one or more of the pilots of the said port, 
 licensed to pilot vessels to and from the said port by the way of Sandy 
 Hook, who shall be notified to attend for the purpose, and who are hereby 
 required to attend and assist in such examination ; or in case of the non- 
 attendance of the pilot or pilots who shall be so notified to attend for that 
 purpose, then without the presence or assistance of any licensed pilot, to 
 examine or cause to be examined, such applicant, touching his qualifica- 
 tions for the office of a pilot, and in particular touching his knowledge of 
 the sailing and management of a square rigged vessel, and also touching 
 his knowledge of the tides, soundings, bearing and distance of the several 
 shoals, rocks, bars, and points of land, and night lights in the navigation 
 for which he applies for a license to act as a pilot, and touching any other 
 matter relating thereto, which the said commissioners may think proper. 
 And if, upon examination, the person so api)lying shall be found to be of 
 good moral character and temperate habits; and to be possessed of suffi- 
 cient ability, skill, and experience to act as a pilot, and not otherwise, the 
 said commissioners ma}' grant him a license for piloting vessels to and 
 from the port of New York by way of Sandy Hook. 
 
 Sec. 11. The commissioners, before granting licenses, shall require all 
 pilots to enter into recognizance to the people of this Statej with two sure- 
 ties, to be approved by such commissioners, or a majority of them, each 
 in a penalty not exceeding five hundred dollars, conditioned that tlie pilot 
 shall diligently and faithfully perform his duties as pilot, and observe the 
 rules and regulations and decisions of the board ; and every such recog- 
 nizance shall be prosecuted in the name of the people of the State of 
 New York, by or in behalf of the commissioners, provided a majority of 
 them shall so instruct, and if any amount be collected in such suit, it shall 
 be paid to the said commissioners, and they may direct the same to be 
 applied for purposes as expressed in section twenty-two. 
 
 Sec. 12. The said commissioners shall have the power to regulate the 
 stationing of pilot boats, for the purpose of receiving pilots from outward 
 bound vessels ; and may alter or amend any existing regulations for pilots, 
 and make and duly promulgate and enforce new rules or regulations, not 
 inconsistent with the laws of this State or of the United States, which 
 shall be binding and eflfectual upon all pilots licensed by them, and upon 
 all parties employing such pilots. They may declare and eilforce for- 
 feitures of pilotage upon any mismanagement or neglect of duty by the 
 pilots licensed by them ; they may declare and impose and collect fines 
 and penalties not exceeding two hundred and fifty dollars, for each offence ; 
 to prevent any of the pilots licensed by them from combining injuriously 
 
 55*
 
 654 APPENDIX. 
 
 with each other, or with other persons, and to prevent any person licensed 
 by them from acting as a pilot during his suspension, or after his license 
 may be revoked : and the said commissioners may establish and enforce 
 all other needful rules and regulations for the conduct and government of 
 the pilots licensed by them, and the parties employing them ; and they 
 may enforce and receive accounts of all moneys collected for pilotage, by 
 the pilots licensed by them, and may impose arid collect from such pilots 
 a sum not exceeding three per cent, on the amount thereof, to defray their 
 necessary expenses, including clerk hire and oiSce rent. 
 
 Sec. 13. The fees for pilotage are hereby established as follows: 
 
 For every merchant vessel, inward bound, and not exempted from pilot- 
 age by virtue of these regulations, drawing less than fourteen feet of water, 
 two dollars and forty-four cents per foot. 
 
 For every vessel drawing fourteen feet, and less than eighteen feet of 
 water, three dollars and six and one-quarter cents per foot. 
 
 For every vessel drawing eighteen feet, and under twenty-one feet of 
 water, three dollars and sixty-nine cents per foot. 
 
 For every vessel drawing twenty-one feet of water, and upwards, four 
 dollars and thirty-one and a quarter cents per foot. 
 
 If the masters or owners of any vessel shall request the pilot to moor 
 said vessel at any place within Sandy Hook, and not to be taken to the 
 wharf or harbor of New York, or the vessel to be detained at quarantine, 
 the same pilotage shall be allowed, and the pilot entitled to his discharge. 
 
 For piloting national armed vessels of the United States, and also those 
 of foreign nations, five dollars per foot. 
 
 When any ship or vessel, bound to the port of New York, and boarded 
 by any pilot appointed by this board, at such distance to the southward or 
 eastwai'd of Sandy Hook lighthouse, as that said lighthouse could not be 
 seen from the deck of such ship or vessel in the daytime, and in fair 
 weather, the addition of one fourth to the rates of pilotage herein before 
 mentioned shall be allowed to such pilot. 
 
 Sec. 14. The pilotage on mei'chant vessels, outward, shall be as fol- 
 lows : 
 
 For every vessel drawing less than fourteen feet of water, one dollar 
 and eighty-one cents per foot. 
 
 For every vessel drawing fourteen feet, and less than eighteen feet of 
 water, two dollars and twelve and a half cents per foot. 
 
 For every vessel drawing eighteen feet, and less than twenty-one feet 
 of water, two dollars and seventy-five cents per foot. 
 
 For every vessel drawing twenty-one feet and upwards, three dollars 
 .and eighteen and three fourth cents per foot. 
 
 Sec. 15. The rates, of pilotage for any intermediate distance, shall be
 
 APPENDIX. 655 
 
 determined by the board of commissioners, and promulgated in their 
 rules and regulations for the government of pilots. 
 
 Sec. 1G. Between the first day of November and the first day of April 
 inclusive, four dollars shall be added to the full pilotage of every vessel 
 coming into or going out of the port of New York. 
 
 Sec. 17. For every day of detention in the harbor of an outward 
 bound vessel, after the services of a pilot -have been required and given, 
 except detention shall be caused by such adverse winds and weather that 
 the vessel cannot get to sea ; and for every day of detention of an inward 
 bound vessel by ice longer than two days for passage from sea to wharf, 
 three dollars shall be added to the pilotage. If any pilot shall be detained 
 at quarantine, or elsewhere, by .the health officer, for being or having been 
 on board a sickly vessel, as pilot, the master, owner, or agent, or consignee 
 of such vessel shall pay to such pilot all necessary expenses of living, and 
 three dollars per day for each and every day of sucli detention. 
 
 Sec. 18. The pilotage shall be payable by the master, owner, con- 
 signee, or agent entering or clearing the vessel at the port of New York, 
 who shall be jointly and severally liable therefor. 
 
 Sec. 19. a pilot who is carried to sea when a boat is attending to re- 
 ceive him, shall receive at the rate of one hundred dollars a month durin"f 
 his necessary absence. 
 
 Sec. 20. Masters of vessels shall give an account to the pilot when 
 boarding, of the draught of such vessels, and in case the draught given 
 is less than the actual draught, he shall forfeit the sum of twenty-five dol- 
 lai'S, which may be sued for and recovered by tlie commissioners, as is 
 hereinafter provided in section twenty-seven, in respect to other fines and 
 penalties. 
 
 Sec. 21. For services rendered by pilots in moving or transpoi'ting 
 vessels in the harbor of New York, the following shall be the fees : 
 
 For moving from North to East River, or vice versa, if a seventy-four 
 gun ship, twenty dollars ; if a sloop of war, ten dollars ; if a merchant 
 vessel, five dollars, except such vessel shall haA'c -arrived from sea, or is 
 ready for and bound to sea, on the day such services for transportation 
 are rendered ; but if the services are rendered thereafter, such payment 
 shall be made. 
 
 For moving any vessel from the quarantine to the city of New York, 
 one quarter of the sum that would be due for the inward pilotage of such 
 vessel. 
 
 For hauling any vessel from the river to a wharf, or from a wharf into 
 the river, three dollars, except on the day of arrival or departure of such 
 vessel. 
 
 Sec. 22. It shall be the duty of the commissioners, out of any funds
 
 656 
 
 APPENDIX. 
 
 which may be obtained, to provide rewards, to encourage the prompt re- 
 lief of disabled vessels, and the speedy report of the same, and generally 
 to encourage not only the energetic performance of duty, but l)encvolent 
 and praiseworthy efforts to relieve vessels and passengers fronj^ distress or 
 suffering. 
 
 Sec. 23. The commissioners shall have power and authority, at any 
 time, to suspend any pilot so licensed, for any period they may think 
 proper, and also to revoke and annul any license which shall have been 
 granted, upon satisfactory proof of negligence or carelessness on the part 
 of such pilot, or of wilful dereliction of duty,' or of vilful disobedience of 
 any lawful rule or regulation duly made and promulgated by said com- 
 missioners ; but the pilot or pilots so suspended may, at any time, upon 
 due notice, appeal to the commissioners for a rehearing of their case ; 
 and the commissioners shall have power to confirm or reverse the pre- 
 vious act or decision of the said board. 
 
 Sec. 24. It shall be the duty of the commissioners to hear and examine 
 all complaints .duly made in writing against any pilot licensed by them, or 
 against any person connected with a boat of such pilot, for any misbe- 
 havior or neglect of duty, or breach of their rules or regulations, that 
 shall appear to them material to be investigated ; and also all complaints 
 made in like manner by any licensed pilot against any master, owner, or 
 seaman of, a vessel, for any misbehavior towards such pilot in the per- 
 formance of his duty, or any bi'each of such rules or regulations. 
 
 Sec. 25. Before any person shall be proceeded against on any com- 
 plaint, and before any pilot be suspended longer than for one month, or 
 be removed, such person or pilot shall be notified in writing, signed by 
 the secretary, to appear before the commissioners, specifying the nature 
 and substance of such complaint, whicli notice shall be served personally, 
 at least five days before the time fixed for appearance, and the commis- 
 sioners, for just cause, shall postpone or adjourn the hearing from time to 
 time ; a certificate of such commissioners, or of a majority of them, with 
 proof of such service or notice, shall be prima facie, but not conclusive 
 evidence that the party upon whom the notice was served, and a fine or 
 penalty thereupon imposed, is liable to pay such fine or penalty. 
 
 Sec. 26. The secretary, under the supervision of the commissioners, 
 shall, at the instance either of the complaining or defending party, issue 
 subpoenas for compelling the attendance of witnesses to testify before the 
 commissioners, in all cases in which the power to hear and examine is 
 conferred by this act ; and it shall be the duty of the commissioners to 
 examine all such witnesses on oath, to be administered by them, as shall 
 appear to them to give material testimony, and each person subpoenaed 
 as a witness, shall be entitled to the like compensation from the party re-
 
 APPENDIX. 657 
 
 quiring his attendance, and be subject to the like penaUies and punisli- 
 raents for disobedience, or for false swearing, as in civil suit at law in the 
 court of record. 
 
 Sec. 27. All pecuniary fines or penalties imposed by the said commis- 
 sioners, by virtue of this act, may be sued for in the name of the " Board 
 of Commissioners of Pilots," and the notice and certificate given as afore-' 
 said, may be set foi'th in pleading, without setting forth other facts or cir- 
 cumstances. The decision of "a majority of the commissioners shall be 
 conclusive upon all questions aiising under this act, except as herein be- 
 fore provided. In case of an omission to fill any vacancy in the board of 
 commissioners for one month, the remaining two or three commissioners 
 (as the case may be) shall have authority to perform all the duties of the 
 commissioners for the time being. 
 
 Sec. 28. It shall b§ the duty of the secretary and his clerks, if any, 
 Avhen not employed under the foregoing provisions of this act, to aid the 
 licensed pilots in keeping their accounts of pilotage, and in collecting the 
 same, if desired, and in keeping a register of calls for pilots. 
 
 Sec. 29. No master of a vessel under three hundred tons burden, be- 
 longing to a citizen of the United States, and licensed and employed in 
 the coasting trade by the way of Sandy Hook, shall be required to em- 
 ploy a licensed pilot, but in case the services of a pilot shall have been, 
 given, the pilot shall be entitled to the rates established. If the master 
 of any vessel above three hundred tons burden, and owned by a citizen 
 of the United States, and sailing under a coasting license to or from the 
 port of New York by the way of Sandy Hook, shall be desirous of pilot- 
 ing his own vessel, he shall first obtain a license for such purpose from 
 the commissioners of pilots, who are hereby authorized and required to 
 grant the same, if such master shall, after an examination had by said 
 commissioners, be deemed competent ; which said license shall be and 
 continue in force one year from the date thereof, or until the termination 
 of any voyage, during which the license may expire. For such license, 
 the master, to whom it shall be granted, shall pay to the said commis- 
 sioners four cents per ton! All masters of foreign vessels and vessels 
 from a foreign port, and all vessels sailing under register, bound to or 
 from the port of New York by the way of Sandy Hook, shall take a 
 licensed pilot ; or, in case of refusal to takq such pilot, shall himself, 
 owners, or consignees, pay the said pilotage as if one had been employed ; 
 and such pilotage shall be paid to the pilot first speaking or offering his 
 services as pilot to such vessel. 
 
 Any person not holding a license as pilot under this act, or under the 
 laws of the State of New Jersey, who shall pilot or offer to pilot any ship 
 or vessel to or from the port of New York by the way of Sandy Hook, 
 except such as are exempt by virtue of this act, or any master or person
 
 658 APPENDIX. 
 
 on board a steam tug or tow boat, who shall tow such vessel or vessels, 
 without such licensed pilot on board such vessel or vessels, shall be 
 deemed guilty of a misdemeanor, and on conviction shall be punished by 
 a fine not exceeding one hundred dollars, or imprisonment not exceeding 
 sixty days ; and all persons employing a person to act as pilot not hold- 
 ing a license under this act, or under the laws of the State of New Jersey, 
 shall forfeit and pay to the board of commissioners of pilots the sum of 
 one hundred dollars. 
 
 The provisions of this act shall not apj)ly to vessels propelled wholly 
 or in part by steam, owned or belonging to citizens of the United States, 
 and licensed and engaged in the coasting trade. 
 
 Sec. 30. This act shall not repeal, or in any way affect, the provisions 
 of an act entitled "An act concerning the pilots of the channel of the 
 East River, commonly called 'Hell Gate,'" passed April 15, 1847. 
 
 Sec. 31. All laws now in force, and which are inconsistent with the 
 provisions of this act, are hereby repealed. 
 
 April 24, 1857. 
 
 BY-LAWS. 
 
 1st. The officers of the board shall be a president and secretary, to be 
 chosen annually on the first Tuesday in August. 
 
 2d. The president shall preside at the meetings of the boai'd, and his 
 duties shall be to conduct the examination of candidates for the office of 
 pilot, sign licenses when gi'anted, and exercise a general supervision over 
 the office. In the absence of the president, a chairman pro tern, shall be 
 appointed, whose duties shall be the same. 
 
 3d. The duties of the secretary shall be as provided for in sections 8 
 and 28. 
 
 4th. The meetings shall be as provided for in section 7. 
 
 5th. The charge for licenses shall be one dollar for the first issue, and 
 twenty-five cents for renewal. 
 
 Gth. The pilots shall pay two and a half per cent, on the gross amount 
 of pilotage, which sura shall be paid to the secretary of the board within 
 one month from the time said pilotage was earned — and any pilot not so 
 paying shall forfeit his license. 
 
 7th. The pilots shall report to the secretary, either verbally or in 
 writing, as soon as practicable, all vessels piloted by them, with the 
 amount received for their services, under a penalty of ten dollars for each 
 offence. 
 
 8th. The boats shall keep station at or near the Hook, alternately, for 
 four days each, and in accordance with a list to be made out by the sec-
 
 APPENDIX. 659 
 
 retary. "When on station the boat shall have a conspicuous signal at the 
 masthead. It shall be the duty of the boat on station to render every 
 necessary aid for taking out and receiving pilots from outward bound ves- 
 sels, and give every facility for sending said pilots to the city of New 
 York or quarantine. 
 
 In case a pilot is carried off to sea in consequence of the non-attend- 
 ance of the station boat, except by unavoidable accident, the company of 
 said boat shall pay to him at the rate of one hundred dollars per month 
 during his necessary absence. 
 
 The boat on station shall remain until relieved ; and any boat not being 
 in time to take her station, shall pay to the boat not relieved twenty-five 
 dollars per day, and shall likewise have added to her station the time she 
 is absent. 
 
 Signal — Jack at the foremast head. 
 
 9th. All boats shall have conspicuous numbers in their sails — said 
 numbers to be designated by the commissioners. 
 
 J 0th. No pilot shall, by any unfair means, take a vessel from another 
 pilot. 
 
 11th. No boat shall put a boy or other person than a licensed pilot on 
 board a vessel, for the purpose of piloting said vessel, under a penalty of 
 fifty dollars and the amount of pilotage — said sum to be paid by the 
 owners of the boat to the commissioners, and to be applied as directed in 
 section 22. This shall not apply to vessels in distress, providing the mas- 
 ters of such vessels are willing to employ the services of such boy or person. 
 
 12th. All mattei's in relation to apprentices shall be left to the commis- 
 sioners, both as to their number, time of service, &c., &c. 
 
 13th. There shall be a register kept in the office of all boat keepers. 
 Boat keepers serving the longest time in one boat shall, when an appoint- 
 ment is to be made, have the preference — said time not to be less than 
 three years. Any boat keeper leaving one boat and going to another, 
 without good and sufiicient cause, shall lose all the privileges he may 
 have of becoming a pilot. 
 
 11th. The names of all persons applying for license to pilot, shall be 
 posted up in some conspicuous place in the office of the commissioners, at 
 least thirty days before any exammation shall be had. And any person 
 having any complaint to make against an applicant, shall make the same 
 in writing, giving his reasons therefor, the same to be open to inspection. 
 
 15th. Pilots are required to board the nearest vessel having a signal 
 flying for a pilot, except in case there should be a vessel in sight with a 
 signal of distress, under a penalty of fifty dollars. 
 
 IGth. Every licensed pilot shall be attached to a pilot boat ; no pilot 
 shall remain unattached for more than thirty days, without permission 
 from the commissioners. Any pilot neglecting or refusing to join a pilot
 
 660 
 
 APPENDIX. 
 
 boat within ten days after clue notice shall have been given him to join a 
 boat, shall, unless satisfactory reasons are given for the non-compliance 
 of the order, be fined the sum of ten dollars, or be suspended for such 
 time as the commissioners shall deem proper, or have their licenses re- 
 voked, at the option of the commissioners. 
 
 17th. Pilots are required to transport a vessel to any part of the port 
 of New York, when applied to, under a penalty of twenty-five dollars, 
 such service to be paid for as per section 21 of the law. 
 
 18th. No master of a pilot boat shall carry to sea on her station, or 
 be in any way aiding or assisting in putting on board any ship or vessel, 
 for the purpose of piloting or conducting her, any person not licensed, or 
 whose license, as a jjilot, shall have been suspended or withdrawn by the 
 commissioners, or shall not have been renewed. If any such person 
 shall be received on board a pilot boat, the pilot or pilots receiving him 
 on board shall, for every offence, forfeit and pay the sum of twenty-five 
 dollars each ; and for a second or subsequent offence, the pilot or pilots 
 shall be liable to suspension or forfeiture of his or their license or licenses, 
 .at the discretion of the commissioners. 
 
 19th. The pilotage ground of the port of Ncav York shall be deemed 
 to be west of a line drawn in the shortest direction from Fire Island 
 light to that of Barnegat light, which line will run S. W. j S., and 
 N. E. ^ N., and that west of that line vessels subject to pilotage must 
 take the first pilot offering his services, or pay the pilotage. 
 
 20th. A pilot, whilst on his business as a pilot, found guilty of using 
 abusive or insulting language, or guilty of threatening conduct, shall be 
 suspended, or have his license revoked, as the commissioners may 
 adjudge. 
 
 21st. Pilotage for taking vessels from the old to the new quarantine: 
 
 For vessels having had death or sickness on board, double outward 
 pilotage. 
 
 For vessels from sickly ports, but having had no sickness on board, 
 single outward pilotage. 
 
 Pilotage of vessels from new quarantine to New York, half inward 
 pilotage. 
 
 22d. Vessels from sea, boarded inside of the outer buoy of the Bar, 
 and any intermediate distance below the narrows shall pay half pilotage. 
 If boarded above the harrows, one quarter pilotage. 
 
 This section has no reference to section 21. 
 
 23d. No pilotage except the regular inward pilotage shall be allowed 
 when vessels are detained from the non-visiting of the health officer.
 
 APPENDIX. 
 
 661 
 
 RATES OF PILOTAGE FROM APRIL 1st TO NOVEMBER 1st. 
 
 Inward. 
 
 Out- 
 
 Inward. 
 
 Odt- 
 
 
 
 
 Off 
 
 
 
 
 
 Off 
 
 1 
 
 
 
 
 shore. 
 
 Total. 
 
 ward. 
 
 
 
 
 shore. 
 
 Total. 
 
 WARD. 
 
 6 ft 
 
 . in. 
 
 $14 64 
 
 $3 66 
 
 $18 30 
 
 $10 86 
 
 16 ft 
 
 . in. 
 
 $49 00 
 
 $12 25 
 
 $61 25 
 
 $34 00 
 
 6 
 
 6 
 
 15 86 
 
 3 96 
 
 19 82 
 
 11 76 
 
 16 
 
 6 
 
 50 53 
 
 12 63 
 
 63 16 
 
 35 06 
 
 7 
 
 
 
 17 08 
 
 4 27 
 
 21 35 
 
 12 67 
 
 17 
 
 
 
 52 06 
 
 13 01 
 
 65 07 
 
 36 12 
 
 7 
 
 6 
 
 18 30 
 
 4 57 
 
 22 87 
 
 13 58 
 
 17 
 
 6 
 
 53 59 
 
 13 40 
 
 66 99 
 
 37 19 
 
 8 
 
 
 
 19 52 
 
 4 88 
 
 24 40 
 
 14 48 
 
 18 
 
 
 
 66 42 
 
 16 60 
 
 83 02 
 
 49 50 
 
 8 
 
 6 
 
 20 74 
 
 5 18 
 
 25 92 
 
 15 38 
 
 18 
 
 6 
 
 68 26 
 
 17 06 
 
 85 32 
 
 50 88 
 
 9 
 
 
 
 21 96 
 
 5 49 
 
 27 45 
 
 16 29 
 
 19 
 
 
 
 70 11 
 
 17 53 
 
 87 64 
 
 52 25 
 
 9 
 
 6 
 
 23 18 
 
 5 79 
 
 28 97 
 
 17 19 
 
 19 
 
 6 
 
 71 95 
 
 17 99 
 
 89 94 
 
 53 62 
 
 10 
 
 
 
 24 40 
 
 6 10 
 
 30 50 
 
 18 10 
 
 20 
 
 
 
 73 80 
 
 18 45 
 
 92 251 
 
 55 00 
 
 10 
 
 6 
 
 25 62 
 
 6 40 
 
 32 02 
 
 19 00 
 
 20 
 
 6 
 
 75 64 
 
 18 91 
 
 94 55; 
 
 56 37 
 
 11 
 
 
 
 26 84 
 
 6 71 
 
 33 55 
 
 19 91 
 
 21 
 
 
 
 90 56 
 
 22 64 
 
 113 20 
 
 66 94 
 
 11 
 
 6 
 
 28 06 
 
 7 01 
 
 35 07 
 
 20 80 
 
 21 
 
 6 
 
 92 72 
 
 23 18 
 
 115 90 
 
 68 53 
 
 12 
 
 
 
 29 28 
 
 7 32 
 
 36 60 
 
 21 72 
 
 22 
 
 
 
 94 87 
 
 23 72 
 
 118 59: 
 
 70 12 
 
 12 
 
 6 
 
 30 50 
 
 7 62 
 
 38 12 
 
 22 62 
 
 22 
 
 6 
 
 97 03 
 
 24 26 
 
 121 29 
 
 71 71 
 
 13 
 
 
 
 31 72 
 
 7 93 
 
 39 65 
 
 1 23 53 
 
 23 
 
 
 
 99 19 
 
 24 80 
 
 123 £9 
 
 73 31 
 
 13 
 
 6 
 
 32 94 
 
 8 23 
 
 41 17 
 
 1 24 44 
 
 23 
 
 6 
 
 101 34 
 
 25 33 
 
 126 67! 
 
 74 90 
 
 14 
 
 
 
 42 88 
 
 10 72 
 
 53 60 
 
 29 75 
 
 24 
 
 
 
 103 50 
 
 25 87 
 
 129 37 
 
 76 50 
 
 14 
 
 6 
 
 44 41 
 
 11 10 
 
 55 51 
 
 1 30 81 
 
 24 
 
 6 
 
 105 66 
 
 26 41 
 
 132 071 
 
 78 09 
 
 15 
 
 
 
 45 94 
 
 11 48 
 
 57 42 
 
 31 68 
 
 25 
 
 
 
 107 81 
 
 26 95 
 
 134 76 
 
 79 69 
 
 15 
 
 6 
 
 47 47 
 
 11 87 
 
 59 34 
 
 32 94 
 
 
 
 
 
 
 
 
 
 Inward. 
 
 
 
 
 
 Inward. 
 
 ft 
 
 IS 
 
 ^ 
 '? 
 
 010 ^ 
 
 
 
 
 
 
 
 
 
 
 
 H 
 
 $38 00 
 
 1 
 
 
 -3 
 a 
 
 > II ^ 
 
 
 
 Off 
 shore. 
 
 Total. 
 
 
 
 Off 
 shore. 
 
 Total. 
 
 6 ft 
 
 Oin. 
 
 $18 64 
 
 $3 66 
 
 $22 30 
 
 $14 86 
 
 16 ft 
 
 . Oin. 
 
 $53 00 
 
 $12 25 
 
 $65 25 
 
 6 
 
 6 
 
 19 86 
 
 3 96 
 
 23 82 
 
 15 76 
 
 16 
 
 6 
 
 54 53 
 
 12 63 
 
 67 16 
 
 39 06 
 
 •s 
 
 7 
 
 
 
 21 08 
 
 4 27 
 
 25 35 
 
 16 67 
 
 17 
 
 
 
 56 06 
 
 13 01 
 
 69 07 
 
 40 12 
 
 > 
 
 S 0.1:0 S 
 
 7 
 
 6 
 
 22 30 
 
 4 57 
 
 26 87 
 
 17 58 
 
 17 
 
 6 
 
 57 59 
 
 13 40 
 
 70 99 
 
 41 19 
 
 .ss, 
 
 t is- ,3 
 
 8 
 
 
 
 23 52 
 
 4 88 
 
 28 40 
 
 18 48 
 
 18 
 
 
 
 70 42 
 
 16 60 
 
 87 02 
 
 53 50 
 
 C3 
 
 
 8 
 
 6 
 
 24 74 
 
 5 18 
 
 29 92 
 
 19 38 
 
 18 
 
 6 
 
 72 26 
 
 17 06 
 
 89 32 
 
 54 88 
 
 
 ^^-^t 2 
 
 9 
 
 
 
 25 96 
 
 5 49 
 
 31 45 
 
 20 29 
 
 19 
 
 
 
 74 11 
 
 17 53 
 
 91 64 
 
 56 25 
 
 s S 
 
 H SS " 
 
 9 
 
 6 
 
 27 18 
 
 5 79 
 
 32 97 
 
 21 19 
 
 19 
 
 6 
 
 75 95 
 
 17 99 
 
 93 94 
 
 57 62 
 
 a 
 
 0^ i t 
 
 10 
 
 
 
 28 40 
 
 6 10 
 
 34 50 
 
 22 10 
 
 20 
 
 
 
 77 80 
 
 18 45 
 
 96 25 
 
 59 00 
 
 * ? 
 
 - . m •" 
 
 10 
 
 6 
 
 29 62 
 
 6 40 
 
 30 02 
 
 23 00 
 
 20 
 
 6 
 
 79 64 
 
 18 91 
 
 98 55 
 
 60 37 
 
 
 1 --s V 
 
 11 
 
 
 
 30 84 
 
 6 71 
 
 37 55 
 
 23 91 
 
 21 
 
 
 
 94 56 
 
 22 64 
 
 117 20 
 
 70 94 
 
 '& « 
 
 2 -S* g 5 1 
 
 11 
 
 6 
 
 32 06 
 
 7 01 
 
 39 07 
 
 24 80 
 
 21 
 
 6 
 
 96 72 
 
 23 18 
 
 119 90 
 
 72 53 
 
 ^ CJ 
 
 
 12 
 
 
 
 33 28 
 
 7 32 
 
 40 GO 
 
 25 72 
 
 22 
 
 
 
 98 87 
 
 23 72 
 
 122 59 
 
 74 12 
 
 }i c 
 
 um 
 
 12 
 
 6 
 
 34 50 
 
 7 62 
 
 42 12 
 
 26 62 
 
 22 
 
 6 
 
 101 03 
 
 24 2C 
 
 125 29 
 
 75 71 
 
 C 
 
 13 
 
 
 
 35 72 
 
 7 93 
 
 43 65 
 
 27 53 
 
 23 
 
 
 
 103 19 
 
 24 80 
 
 127 99 
 
 77 31 
 
 K 9 
 
 S3 So© 
 
 13 
 
 6 
 
 36 94 
 
 8 23 
 
 45 17 
 
 28 44 
 
 23 
 
 6 
 
 105 34 
 
 25 33 
 
 130 67 
 
 78 90 
 
 Cw 
 
 05 <i;v. ° 
 
 14 
 
 
 
 46 88 
 
 10 72 
 
 57 60 
 
 33 75 
 
 24 
 
 
 
 107 50 
 
 25 87 
 
 133 37 
 
 80 50 
 
 
 g .£"» t£" n 
 
 14 
 
 6 
 
 48 41 
 
 11 10 
 
 59 51 
 
 34 81 
 
 24 
 
 6 
 
 109 66 
 
 26 41 
 
 1.36 07 
 
 82 09 
 
 C c 
 
 - i S = '^ 3 
 
 15 
 
 
 
 49 94 
 
 1148 
 
 61 42 
 
 35 88 
 
 25 
 
 
 
 111 81 
 
 26 95 
 
 138 76 
 
 83 09 
 
 < ."' 
 
 £-. 1 ~ = 1 2, 
 
 15 
 
 6 
 
 51 47 
 
 11 87 
 
 63 34 
 
 36 94 
 
 
 
 
 
 
 
 
 
 << \ 
 
 vox. I. 
 
 5Q>
 
 662 APPENDIX. 
 
 GENERAL REGULATIONS 
 
 FOR PILOTAGE IN THE COMMONWEALTH OF MASSACHUSETTS. 
 
 The following are the Rules and Regulations for Pilotage in the State of 
 Massachusetts, Reported hy the Commissioners of Pilots, and Approved 
 hy the Governor and Council: — 
 
 1. No person not holding a commission as pilot (excepting those 
 actually employed on board of the vessel for the voyage), shall in any 
 case exercise the duties of a pilot on board of any vessel within the 
 waters of this Commonwealth, whether said vessel is liable to compulsory 
 pilotage or not, provided a commissioned pilot offers his services, or can 
 be obtained at a reasonable time, under a penalty of not less than twenty, 
 and not exceeding fifty dollars for each and every offence. All commis- 
 sions shall be revocable at the pleasure of the commissioners. 
 
 2. If at any time the bond of any pilot shall appear to be insufficient, 
 a new one will be required by the commissioners. 
 
 3. No vessel shall be liable to pilotage in or out of any port other 
 than her ports of departure and destination. But if the aid of a pilot be 
 required, the pilot shall be bound to do the duty, and entitled to the regu- 
 lar compensation therefor. 
 
 4. Every vessel inward bound, excepting the vessels provided for in 
 section nineteenth, shall receive the first pilot holding a commission, for 
 her port of destination that may offer his services, and shall be holden to 
 pay to such pilot, the regular fees for pilotage, whether his services be 
 accepted or not. Outward bound vessels in all cases are requested to 
 give a preference to the pilot, w'ho may have brought said vessel into 
 port, or to a pilot from the same boat. 
 
 5. It shall be the duty of every pilot to first board vessels (irrespective 
 of size) having signals set for a pilot. When there are no signals to be 
 seen, then the pilots are to offer their services to the first vessel which 
 they can board ; and in case any vessel liable to pilotage should refuse to 
 take a pilot, it shall be the duty of the pilot to inform said vessel that she 
 will be holden to pay the regular fees for pilotage, Avhether his services 
 are accepted or not. 
 
 6. Every pilot shall exhibit his commission when required, to the 
 master of any vessel of which he may take charge.
 
 APPENDIX. 663 
 
 7. No pilot shall take charge of any vessel drawing more water than 
 his commission authorizes, under penalty of suspension or dismission. 
 
 8. Every pilot shall be liable, together with his bondsmen, for all 
 damages that may accrue from his negligence, unskilfulness, or unfaith- 
 fulness. 
 
 9. Every pilot shall make out and forward to the commissioners his 
 quarterly return, within the first fifteen days of October, January, April, 
 and July ; any neglect of said returns and the settlement thereof, will be 
 ground for suspension or dismission. 
 
 10. The period during which winter rates of pilotage shall be al- 
 lowed, shall be uniformly from November 1 to April 30 inclusive ; sum- 
 mer rates from May 1 to October 31 inclusive, for all the ports of the 
 Commonwealth. 
 
 11. The hull and appurtenances of every vessel shaU be liable for all 
 legal claims on account of pilotage, either rendered or offered, for the 
 space of sixty days. 
 
 12. All pilots shall anchor vessels carrying alien passengers, or ves- 
 sels subject to quarantine at the places assigned for such purpose by the 
 proper authorities, under penalty of suspension or dismission, as well as 
 of the fines by law provided for neglect thereof. 
 
 13. All disputes between pilots in relation to their rights, privileges? 
 and duties with each other, shall be referred to, and settled by three 
 master pilots, to be chosen by the parties for that purpose, to be adjusted 
 and settled according to the regulations and the laws, subject, ueverthe- 
 less, to reversal or modification by the commissioners. 
 
 14. Whenever any vessel shall be anchoi'ed under the regulations for 
 quarantine, or alien passengers, for twelve hours or over, the pilot in 
 charge shall be entitled to twenty-five per cent, in addition to the 
 ordinary fees, by afterwards piloting the vessel to her port of destina- 
 tion. 
 
 lo. Any pilot who shall be unable to leave a vessel under his charge 
 and be carried to sea, without any negligence or fault of his own, or his 
 associates, shall be entitled to two dollars per day, while necessarily 
 absent from home. 
 
 16. All passenger steam vessels, regulated by the laws of the United 
 States, and carrying a pilot commissioned by United States commis- 
 sioners, are exempt from the compulsory payment of pilotage. 
 
 17. All national vessels, both inward and outward, shall pay in all 
 ports in the Commonwealth Avhen they shall employ a pilot, four dollars 
 per foot for fifteen feet or less draught of Avater, and five dollars per 
 foot for over fifteen feet draught of w-ater. 
 
 18. Every regularly appointed pilot is authorized and directed to take 
 charge of any vessels within the limits of his commission, except fishing
 
 664 APPENDIX. 
 
 vessels (not including whaling vessels), all single-decked vessels of three 
 hundred and fifty tons or under, sailing under a coasting license, and all 
 other vessels bound fi'om a port within this State, to another port within 
 this State, unless such vessel shall be in the completion of a voyage from 
 a port or place without the State, and steam vessels as per regulation, 
 No. 17.1 
 
 19. Vessels of two hundred tons burden and under and liable to pay 
 pilotage, declining the services of a pilot, shall henceforth be liable only 
 for one half of the regular pilotage fees. And, also, vessels of less than 
 seven feet draught of water shall be exempt from compulsory pilotage, in 
 all ports in the Commonwealth. 
 
 20. The regulations and rates of pilotage, for all ports, not named in 
 the following port regulations, shall be such as the commissioners may 
 prescribe. 
 
 21. It shall be the duty of all pilots to give immediate information to 
 the pilot commissioners, of the decease or insolvency of any person who 
 may be surety on their bond, under a penalty of two hundred dollars. 
 
 22. The statute of 1855, chapter 421, section 5, provides that in all 
 cases, six per cent, upon the amount of all pilotage fees shall be collected 
 by pilots and paid over to the commissioners. Pilots and mastei's or 
 agents of vessels will govern themselves accordingly. 
 
 REGULATIONS 
 
 FOR THE PILOTAGE OF THE HARBOR OF BOSTON, AND ALL PLACES OR LANDINGS 
 ACCESSIBLE TO VESSELS FROJI SEA, INCHJDEU WITHIN THE LIMITS OF NAHANT 
 ROCK ON THE NORTH, AND POINT ALDERTON ON THE SOUTH. 
 
 There shall be not less than six pilot boats constantly employed by the 
 Boston pilots ; each boat shall have a number, which shall be painted in 
 black figures of not less than forty-eight inches in length, in the mainsail 
 and jib ; the numbers of boats and crews of said boats to be regulated 
 by the commissioners. 
 
 Each boat shall have a first and second master, who are required to 
 see that all the pilot regulations are strictly conformed to ; any non-per- 
 formance of duty, or insubordination on the part of any jDilot, upon the 
 complaint of any master, will receive prompt investigation by the com- 
 missioners. 
 
 Each one of the pilot boats employed for the harbor of Boston, in 
 
 1 The regulation refeiTed to should be No. 16, which was numbered 17 in the old 
 rules.
 
 APPENDIX. 665 
 
 alternate weeks, and in the order of their numbers, commencing with 
 No. 1 on Monday, 13th December, 1858, at 12 o'clock, noon; shall 
 cruise on a station at the entrance of Boston harbor, outside of Boston 
 light, and within the limits of a line drawn from Minot's Ledge to 
 Nahant Head ; and the boat on said station shall at all times show the 
 established pilot boat signal, and shall by day and by night, at all times, 
 remain on said station whenever the weather does not render it imprac- 
 ticable, and be on the lookout for vessels appi'oaching Boston harbor, and 
 shall at all times be furnished with pilots without leaving her station, and 
 shall offer the services of a pilot to all vessels entering said harbor in 
 accordance with the fifth general regulation, and she shall receive on 
 board pilots from outwtR'd bound vessels, and render to them all the 
 facilities for their return to the city of Boston, which is consistent with 
 their dut3\ The station boat shall not leave said station until relieved by 
 another boat, and if the boat next in turn for said station shall at any 
 time be unnecessarily absent from said station, the pilots on board of 
 said boat at the time shall collectively be liable to a penalty not exceed- 
 ing two hundred dollars, the amount and apportiomnent of which shall be 
 decided by the commissioners, and the pilot or pilots so offending shall 
 be liable to immediate suspension or dismissal from the pilot service at 
 the disci'etion of the commissioners, but in case of accident or casualty 
 rendering it impossible for said boat to be on her station, the fact shall be 
 immediately reported to the commissioners, who may OrdeV any other 
 boat to take said station, and remain until relieved, said boat being 
 subject to fhe same liabilities after receiving said order, as though it was 
 her regular turn. In case of a want of pilots at any time on board of 
 the station boat to supply the demand of inward bound vessels, jjilots 
 taken on board from outward bound vessels may with the consent of the 
 master of the station boat go on board of inward bound vessels, but no 
 pilot shall board an inward bound vessel except from the boat to which 
 he belongs without such permission. 
 
 It shall be the duty of every pilot, after having brought a vessel to 
 the inner harbor of Boston, to have such vessel properly moored in the 
 stream, or secured to a wharf (below the bridges), at the option of the 
 master, within twenty-four hours after arrival, weather and tide permit- 
 ting, without extra charge. 
 
 If any vessel outward bound, having a pilot on board, should anchor 
 in Nantasket Roads, it shall be the duty of the pilot to remain on board 
 said vessel, if requested by the master, until the next high-water, and if 
 detained after that time, he shall be entitled to receive three dollars per 
 day for each and every day so detained. 
 
 No pilot shall leave a vessel outward bound, until to the eastward of 
 George's Island, without permission of the master of said vessel. 
 
 56*
 
 666 
 
 APPENDIX. 
 
 Every pilot is required to perform his full share of the duties of an 
 inward, as well as outward pilot, unless prevented by sickness, or causes 
 satisfactory to the commissioners. 
 
 EATES or PILOTAGE OUTWARD, FOR THE PORT OF BOSTON. 
 
 From November 1 to April 30, inclusive. 
 
 7 feet 
 
 8 
 
 9 
 10 
 11 
 12 
 13 
 14 
 15 
 16 
 17 
 18 
 19 
 20 
 21 
 22 
 23 
 24 
 25 
 
 per foot 
 
 95 cts. 
 95 
 
 $100 
 100 
 105 
 1 10 
 1 15 
 120 
 125 
 130 
 135 
 145 
 1 50 
 
 1 60 
 
 2 00 
 
 2 50 
 
 3 00 
 
 4 25 
 
 5 00 
 
 From May 1 to October 31, inclusive. 
 
 7 feet 
 
 8 
 
 9 
 10 
 11 
 12 
 13 
 14 
 15 
 16 
 17 
 18 
 19 
 20 
 21 
 22 
 23 
 24 
 25 
 
 per foot 
 
 80 cts. 
 
 80 
 
 85 
 
 90 
 
 95 
 $100 
 105 
 1 10 
 1 15 
 120 
 
 1 25 
 130 
 135 
 150 
 175 
 
 2 00 
 
 2 50 
 
 3 50 
 
 4 00 
 
 All national vessels of 15 feet or less draught of water, $4 per foot. 
 
 RATES OF PILOTAGE INWARD, FOR THE PORT OF BOSTON. 
 
 From November 1 to April 30, inclusive. 
 
 7 feet 
 
 8 
 
 9 
 10 
 11 
 12 
 13 
 14 
 15 
 16 
 17 
 18 
 a 9 
 20 
 21 
 22 
 23 
 24 
 25 
 
 per foot 
 
 $150 
 
 7 
 
 1 50 
 
 8 
 
 155 
 
 9 
 
 160 
 
 10 
 
 1 75 
 
 11 
 
 180 
 
 12 
 
 185 
 
 13 
 
 190 
 
 14 
 
 2 00 
 
 15 
 
 2 10 
 
 16 
 
 2 20 
 
 17 
 
 2 50 
 
 18 
 
 2 90 
 
 19 
 
 3 25 
 
 20 
 
 3 80 
 
 21 
 
 4 20 
 
 22 
 
 4 50 
 
 23 
 
 5 00 
 
 24 
 
 5 00 
 
 25 
 
 From May 1 to October 31, inclusive. 
 
 feet 
 
 per foot 
 
 $120 
 120 
 130 
 135 
 140 
 145 
 150 
 155 
 165 
 175 
 190 
 2 00 
 210 
 2 30 
 
 2 75 
 
 3 00 
 
 3 50 
 
 4 00 
 4 50 
 
 All national vessels of 1 5 feet or less di-aught of water, $4 per foot. 
 " " " over 15 " " " $5 " 
 
 Any commissioned pilot that shall offer his services to any vessel bound 
 into the harbor of Boston, without or eastward of a line drawn from 
 •Monument Land, Plymouth, to Thatcher's Island, Cape Ann, from the 
 first day of November to the thirtieth day of April inclusive, shall be 
 entitled to receive twenty per cent, in addition to the foregoing rates.
 
 APPENDIX. G67 
 
 The fees for hauling a vessel from the stream to a wharf (below the 
 bridges), after the expiration of twenty-four hours from arrival, shall be 
 four dollars ; and for hauling a vessel from the wharf to the stream, pi-o- 
 vided the vessel does not proceed to sea within twenty-four hours from 
 the time of anchoring, four dollars. 
 
 If any commissioned pilot offers himself to any inward bound vessel 
 liable to take a pilot, outside of a line drawn from Harding's Rocks to 
 the Graves and Bass Point, and the master of the vessel should refuse to 
 take such pilot on board, the master or owner of such vessel or either of 
 them, shall be liable to such pilot for the regular pilotage, as if his ser- 
 vices had been accepted. 
 
 Not less than three pilot boats shall at all times cruise in Boston Bay 
 outside of the limits prescribed for the station-boat. 
 
 Every commissioned pilot for Boston Bay shall be attached to a pilot 
 boat, and no pilot shall remain unattached for more than thirty days, with- 
 out permission from the commissioners. Any pilot neglecting or refusing 
 to join a pilot boat for ten days after being duly notified to join one, 
 unless satisfactory reasons are given for noncompliance shall be liable to 
 suspension, or to have his commission revoked at the option of the com- 
 missioners. 
 
 No pilot shall take charge of any vessel of a larger draught of water 
 than his commission authorizes, nor shall any other 2:)erson, not having a 
 commission, be put on board of any vessel from either of the pilot boats, 
 in the capacity of pilot. But in the event of the master of any vessel 
 taking on board an unauthorized person to assist him in going into port, 
 the person so taken shall state the circumstances to the master of said 
 vessel, and keep the usual signal flying for a pilot until within a line 
 from the Harding's Rocks to the Graves and Bass Point, and shall give 
 the vessel up to any authorized pilot who may offer himself. 
 
 Any vessel inward bound, requiring the services of a pilot when inside 
 of a line drawn from Boston Light-house to Point Alderton in the Light- 
 house Channel, or when abreast of or inside of the outer Brewster Island, 
 in Broad Sound, shall be liable only to two thirds of the established rates 
 of pilotage, and if outward bound from Nantasket or President Roads, 
 half pilotage rates only. 
 
 Any commissioned pilot for the harbor of Boston, that may be found 
 mating or combining, or in any way interested with any other pilot in the 
 business of pilotage, except with those pilots belonging to the same boat 
 with himself, shall be liable to forfeit his conunission. 
 
 The established pilot signal by day, is a white and blue flag, white next 
 to the mast, and in the night a red light. 
 
 In the division of earnings of any pilot boat among the crew, the fol- 
 lowing allowance shall be made to those pilots holding a commission for a 
 limited drau^rht of water : —
 
 668 APPENDIX. 
 
 For a commission for 10 feet draught of water |^ of a share. 
 
 2 
 
 12 " 
 
 IG " " " I 
 
 The pilots of the port of Boston shall have an office, or keep a desk in 
 some counting-room in some central situation, where all communications 
 may be left for them, and it shall be the duty of the pilots when in Bos- 
 ton, to call at said office or desk, twice a day at least. 
 
 REGULATIONS 
 
 FOR THE PILOTAGE OF NANTUCKET SHOALS, VINEYARD SOUND, AND PORTS BORDER- 
 ING THEREON, AND ALSO FOR BUZZARD'S BAY AND HARBORS BORDERING ON ITS 
 WATERS. 
 
 The I'ates for piloting vessels through the Vineyard Sound over Nan- 
 tucket Shoals into Boston Bay, or to any port of destination eastward 
 thereof, if the pilot be taken westward of a line drawn due south from 
 Tarpaulin Cove Light-house, or between said line and a line drawn from 
 Neman's Land to Saugkonnet Point, from the first day of November to 
 the thirtieth day of April inclusive, shall be for vessels not drawing more 
 than eleven feet of water, three dollars and fifty cents per foot ; if draw- 
 ing more than eleven feet of water and not more than fourteen feet, four 
 dollars per foot ; if drawing more than fourteen feet, four dollars and fifty 
 cents per foot. And from the first day of May to the thirty-first day of 
 October inclusive, for vessels drawing not more than eleven feet of water, 
 two dollai's and fifty cents per foot. If drawing more than eleven feet 
 and not more than fourteen feet, three dollars per foot. If drawing more 
 than fourteen feet, three dollars and fifty cents per foot. And if the pilot 
 be taken west of said line, drawn from Saugkonnet Point to Noman's 
 Land, ten per cent, shall be added to the above specified rates ; and if 
 said pilot be taken at any point east of said line, drawn due south from 
 Tarpaulin Cove Light-house, ten per cent, shall be deducted from said 
 rates ; and if, during the navigation aforesaid, the pilot is detained in any 
 j)ort at the request of the master, commander, or owner of said vessel, 
 and not from stress of weather, he shall be allowed three dollars per day 
 for all such detention ; and in all cases five dollars shall be added to the 
 rates aforesaid, if the vessel shall be taken to a port of destination east of 
 Cape Ann, and not eastwai'd of Portsmouth, and if the port of destina- 
 tion be Portsmouth, or eastward thereof, ten dollars shall be added to said 
 rates ; provided, however, that any other rates may be agreed upon, by 
 written contract between the master, commander, or owner of any vessel 
 to be piloted, and the pilot taking charge of the vessel. 
 
 The rates for piloting from west of a line drawn from Saugkonnet
 
 APPENDIX. 669 
 
 Point to Noman's Land, to the ports herein named, shall be as follows, 
 namely : Into Tarpaulin Cove, one dollar and fifty cents per foot. Wood's 
 Hole, Falmouth Port, and Holmes' Hole, one dollar and seventy-five 
 cents per foot. Into Edgartown and Hyannis, two dollars per foot ; and 
 to the Bar of Nantucket harbor, two dollars and twenty-five cents per 
 foot. And into any other ports on the south coast of Barnstable county 
 or on the Vineyard Sound, one dollar and seventy-five cents per foot. • 
 
 The outward rates of pilotage from all the above-named ports and from 
 the Bar of Nantucket harbor, if taken westward past Gay Head, shall be 
 three fourths of the above, and the outward and inward rates shall be 
 increased by twenty per cent, for all piloting done between the first day 
 of November and the thirtieth day of April inclusive. 
 
 The rates for piloting vessels into any of the above-named ports, and 
 to the Bar of Nantucket harbor, from any point east of a line drawn 
 from Saugkonnet Point to Noman's Land, and between said line and a 
 line drawn due south from Tarpaulin Cove Light-house, shall be twenty- 
 five per cent, less than the above-named rates ; and if said pilot is taken 
 east of a line drawn due south from Tarpaulin Cove Light-house, fifty 
 per cent, shall be deducted* from said specified rates ; and in case the 
 master then declines taking a pilot, said pilot oifering shall be entitled to 
 one quarter pilotage, agreeably to these regulations ; and if no pilot shall 
 have oflTered his services before passing a line drawn from the West Chop 
 Light-house to the Nobska Light-house, there shall be no obligation on 
 the part of the master or owner to pay pilotage, if the master shall then 
 decline receiving a pilot. 
 
 The rates of pilotage for vessels coming from the eastward bound to 
 the aforesaid ports, shall be from east of a. line drawn due north from 
 Nantucket Great Point Light-house to the Bar of Nantucket, one dollar 
 and fifty cents per foot of said vessel's draught. Into Edgartown and 
 Hyannis, one dollar and seventy-five cents per foot. Into Holmes' Hole, 
 Falmouth Port, and Wood's Hole, two dollars per foot ; and into all other 
 ports on the south coast of Barnstable county or onthe Vineyard Sound, 
 one dollar and seventy -five cents per foot ; and from west of said line 
 drawn due north from Great Point Light-house, twenty-five per cent, less 
 than the foregoing. The outward rates, when passing to sea to eastward 
 of Nantucket Shoals, shall be three fourths of the inward rates, and both 
 outward and inward rates shall be increased by twenty-five per cent, for 
 all pilotage done between the first of November and the thirtieth of April, 
 inclusive. 
 
 The rates of pilotage from one port to another on the Vineyard Sound, 
 including the south coast of Barnstable county, and from the said ports 
 to the Bar of Nantucket harbor, and vice versa, shall be uniformly one 
 dollar and twenty-five cents per foot, and twenty-five per cent, additional
 
 670 APPENDIX. 
 
 for all pilotage done between the first day of November and the thirtieth 
 day of April, inclusive. And for pilotage inward or outward over the 
 Bar of Nantucket harbor only, at all seasons of the year, one dollar per 
 foot. 
 
 Any person holding a commission as pilot for Nantucket Shoals, is au- 
 thorized to pilot vessels from any part of the Vineyard Sound, Nantucket 
 Shoals, and ports bordering on the waters of the same, to the harbor 
 pilots' limits of any port in Buzzard's Bay or ports west of said bay, at 
 the following rates of pilotage : From any point east of a line drawn due 
 ■north from Cape Poge, at two dollars per foot of such vessel's draught, 
 and if taken westward of said line, drawn due north from Cape Poge, one 
 dollar and fifty cents per foot ; and if no port pilot offers his services, with 
 the consent of the master, they may proceed with said vessel to her desti- 
 nation, and claim the whole amount of pilotage. Provided, however, that 
 no vessel passing through the waters of the Vineyard Sound, or over the 
 Nantucket Shoals to ports beyond them, shall be holden to pay compul- 
 sor pilotage. But in no case shall an unauthorized pilot take charge of 
 any vessel when a commissioned pilot can be obtained at a proper time. 
 Pilots holding commissions for Vineyai'd SOund and Nantucket Shoals, 
 who may have piloted a vessel o^'cr said shoals, whose destination is a 
 port in Barnstable or Boston Bay, or eastwaixl thereof, on ai'rival at the 
 port of her destination, and no harbor pilot offering his services, may with 
 the consent of the master (but not otherwise) pilot such vessel into her 
 port of destination, and receive the regular port pilot fees therefor. 
 
 Pilots especially commissioned for the purpose, shall be authorized to 
 pilot vessels from sea, which are bound into the ports of New Bedford 
 and Fairhaven to abreast of Clark's Point Light-house, and to the port 
 pilot limits of other ports in Buzzard's Bay (or westward thereof), and if 
 no port pilot offers his services, they may, with the consent of the master 
 or owner, proceed with such vessel to her port of destination, and claim 
 the full amount of pilotage. 
 
 The rates of pilotage from sea for vessels bound into the ports of New 
 Bedford and Fairhaven to abreast of Clark's Point Light-house, shall be 
 one dollar and ninety cents per foot, and from abreast of Clark's Point 
 Light-house to the inner harbor^ of New Bedford and Fairhaven, thirty- 
 five cents per foot, and twenty per cent, additional to the sea or bay pilot- 
 age, from the first day of November to the thirtieth day of April, when a 
 pilot offers his services or is taken west of a Ime drawn from Saugkonnet 
 Point to the south point of Noman's Land. 
 
 The outward rates of pilotage, from the ports of New Bedford and 
 Fairhaven, to abreast of Clark's Point Light-house, shall be thirty-five 
 cents per foot from abreast of Clark's Point Light-house, to sea, one dol- 
 lar and fifty cents per foot.
 
 APPENDIX. ' 671 
 
 Vessels bound into other ports (than New Bedford and Fairhaven) in 
 Buzzard's Bay, and ports west of said bay, are exempt from paying com- 
 pulsory bay pilotage, when coming from sea from westward to the port 
 pilot limits of the several ports, but if a pilot is employed, he shall be 
 entitled to receive two dollars per foot, and if no port pilot offers his ser- 
 vices, he may, with the consent of the master or owner, conduct said 
 vessel to the port of her destination, and claim the whole amount of })ilotage. 
 
 The rates of port or hai'bor pilotage for all the different ports border- 
 ing on Buzzard's Bay, and to the westward thereof, excepting New Bed- 
 ford and Fairhaven, shall be for vessels inward bound drawing less than 
 twelve feet of water, one dollar per foot, for those drawing from twelve 
 to fifteen feet of water inclusive, one dollar and thirty cents per foot, for 
 those drawing more than fifteen, and not more than eighteen feet of water, 
 two dollars per foot, and for those drawing over eighteen feet of water, 
 two dollars and fifty cents per foot, and the rates of pilotage for vessels 
 outward bound from said ports, shall be three quarters of said iuAvard 
 rates, and both outward and inward rates shall be increased by twenty 
 per cent, for all pilotage done between the first day of November and the 
 thirtieth day of April inclusive. 
 
 EEGULATIONS AND FEES 
 
 OF PILOTAGE, ArPLICABLE TO THE FOLLOWING HAEBORS, NAMELY: rEOVINCETOWN, 
 PLYMOUTH, NEWBURYPORT, GLOUCESTER, ROCKPORT, LANE'S COVE, ANNISQUABI, 
 SALEM AND BEVERLY, MARBLEHEAD, TAUNTON RIVER, AND MERRIMACK RIVER 
 AND HARBORS, DORCHESTER AND NEPONSET, HINGHAM, WEYMOUTH AND QUINCY, 
 LYNN, MYSTIC AND CHARLES RIVERS. 
 
 PROVINCETOWN. 
 
 The rates of pilotage, for all vessels liable to pay pilotage, bound into 
 the harbor of Provincetown, if taken south of a line drawn due west from 
 Race Point Light-house, or between that and a line drawn due south 
 from Wood End Bar, shall be for vessels drawing less than twelve feet 
 of water, one dollar per foot, for those drawing from twelve to fifteen feet 
 of water, inclusive, one dollar and thirty cents per foot, for those drawing 
 more than fifteen feet, and not more than eighteen feet of water, two 
 dollars per foot, for those drawing more than eighteen feet and not more 
 than twenty-one feet of water, two dollars and fifty cents per foot, for 
 those drawing more than twenty-one feet, and not more than twenty-five 
 feet of water, three dollars and fifty cents per foot, and no more. But 
 no vessel shall be liable to pay compulsory pilotage, if the services of a 
 pilot are refused after passing a line di-awn due south from Wood End\
 
 672 " APPENDIX. 
 
 Bar. And the outward rates of pilotage shall be three fourths the 
 amount of said inward rates. 
 
 PLYMOUTH. 
 
 The rates of pilotage for vessels liable to pay pilotage bound into the 
 harbor of Plymouth, shall be one dollar per foot. Vessels arriving inside 
 of the Gurnet, and no pilot previously offering his services, are exempt 
 from compulsory pilotage, if a pilot's services are then refused. Rate of 
 pilotage outward seventy-five cents per foot. 
 
 NEATBURTPORT. 
 
 The rates of pilotage for vessels liable to pay pilotage bound into or 
 out of the harbor of Newburyport, shall be for outward bound vessels, 
 from seven to twelve feet draught of water, sixty-five cents per foot; 
 from twelve to fifteen feet, inclusive, eighty-five cents per foot ; upwards 
 of fifteen feet, one dollar and five cents per foot. The summer rates of 
 pilotage for inward bound vessels drawing from seven to under twelve 
 feet, ninety-five cents per foot ; from twelve to fifteen feet inclusive, one 
 dollar and twenty -five cents per foot; over 'fifteen feet, one dollar and 
 sixty cents per foot. The winter rates of pilotage for inward bound 
 vessels drawing from seven to twelve feet of water, one dollar and twenty- 
 five cents per foot ; from twelve to fifteen feet, inclusive, one dollar and 
 sixty-five cents per foot ; over fifteen feet, two dollars and ten cents per 
 foot. 
 
 The district limits of the port of Newburyport, shall be from Chebaceo 
 Bar on the south, to the Isle of Shoals on the north. Vessels not spoken 
 until within the bar, shall pay only half pilotage ; if not spoken until and 
 within the Black Rocks, shall pay no compulsory pilotage. 
 
 The pilots of Newburyport will be required to keep one or more good 
 decked boats, and one boat shall be upon the cruising ground at all times 
 when the weather will permit. 
 
 ROCKPORT, lane's COVE, AND ANNISQUAM. 
 
 The rates of pilotage shall be for vessels under twelve feet draught of 
 water, seventy-five cents per foot ; of twelve to fifteen feet inclusive, one 
 dollar per foot ; over fifteen feet, one dollar and fifty cents per foot. 
 
 The inward and outward rates shall be the same. 
 
 GL OUCESTER. 
 
 The rates of pilotage, for vessels liable to pay pilotage, bound into the 
 harbor of Gloucester, shall be for vessels drawing less than twelve feet of 
 water, one dollar per foot, for those drawing from twelve to fifteen feet
 
 4 
 APPENDIX. 673 
 
 of water, inclusive, one dollar and thirty cents per foot, for those drawing 
 more than fifteen feet, and not more than eighteen feet of water, two dol- 
 lars per foot, for those drawing more than eighteen feet, and not more 
 than twenty-one feet of water, two dollars and fifty cents per foot ; for 
 those drawing more than twenty-one feet, and not more than twenty-five 
 feet of water, three dollars and fifty cents per foot, and no more. The 
 harbor line shall be a line drawn from Norman's Woe to Dog Bar Buoy, 
 off Eastern Point, within which line there shall be no compulsory inward 
 pilotage. The pilots of Gloucester will be required to keep at least one 
 decked boat, and said boat or boats shall be upon the cruising ground at 
 all times when the weather will permit. The pilotage on vessels outward 
 bound, shall be three fourths of the inward rates. 
 
 SALEM AND BEVERLY. 
 
 The pilots for the ports of Salem and Beverly, shall keep one or more 
 good decked boats, and shall cruise for the purpose of bringing vessels 
 into said ports, whenever the weather does not render it impracticable. 
 
 The harbor lines of the port of Salem and Beverly, shall be a line 
 running north by east from Halfway Rock to the northern shore, and a 
 line running north-westerly from Halfway Rock to Marblehead Fort, 
 within which lines there shall be no compulsory inward pilotage. The 
 rates for pilotage both for inward and outward bound vessels shall be as 
 follows, namely : for vessels drawing less than nine feet of water, ninety- 
 five cents per foot ; for nine feet and less than eleven feet, one dollar and 
 ten cents per foot ; for eleven feet and less than thirteen feet, one dollar 
 and thirty cents per foot ; for thirteen feet and less than fifteen feet, one 
 dollar and fifty cents per foot ; for fifteen feet and less than seventeen 
 feet, one dollar and seventy-five cents per foot ; for seventeen feet and 
 upwards, one dollar and ninety-five cents per foot. 
 
 Any Salem and Bevei'ly pilot having brought a vessel in, shall have 
 such vessel properly moored in the liai'bor, or secured at the wharf, at 
 the option of master, within twelve hours after the arrival of said vessel, 
 if the weather permits, without extra charge. But if called upon after 
 the expiration. of the twelve hours, to haul any vessel into the wharf, the 
 pilot shall be entitled to receive two dollars for his services, and the same 
 sum for taking a vessel from the wharf into the harbor, if said vessel 
 shall not proceed to sea within twelve hours from the time of her being 
 anchored in the harbor. The signal for the pilot boats for the ports of 
 Salem and Beverly shall be their accustomed signal by day, namely : a 
 red flag with a white P, and a black ball painted on the upper part of 
 mainsail and jib, and by night a green light. 
 VOL. I. 57
 
 674 APPENDIX. 
 
 MAEBLEHEAD. 
 
 The rates of pilotage for vessels liable to pay pilotage, bound into the 
 harbor of Marblehead, shall be for vessels drawing from seven to eleven 
 feet of water, sixty-seven cents per foot ; from twelve to fourteen feet, 
 ninety cents per foot ; from fifteen to seventeen feet, one dollar and 
 twenty cents per foot ; eighteen feet and upwards, one dollar and sixty 
 cents per foot. 
 
 The harbor limits of Marblehead shall be bounded by a line drawn 
 from the south point of the Neck to Marblehead Eock, thence to Cat 
 Island Rock, and thence westerly to Gerry's Island. Within this line 
 there shall be no compulsory inward pilotage. The outward rates shall 
 be the same as the inward. 
 
 TAUNTON RIVER. 
 
 The pilotage for Taunton Eiver shall not be compulsory. "When the 
 services of a pilot are required, the rates of pilotage on all vessels piloted 
 from Fall River to Somerset, drawing not over twenty feet of water, two 
 dollars. From Fall River to Dighton, on vessels drawing twelve feet of 
 water, seven dollars ; eleven feet, six dollars and fifty cents ; ten feet, 
 six dollars ; nine feet, five dollars and fifty cents ; eight feet, five dollars; 
 under eight feet, four dollars. From Somerset to Dighton and Berkley, 
 fifty cents per foot for vessels drawing from eight to twelve feet of water ; 
 under eight feet, three dollars per vessel. The downward pilotage from 
 the aforesaid places, shall be one half of the upward rates. 
 
 MERRIMACK RIVER AND HARBORS. 
 
 The pilotage on the Merrimack River, between Newburyport and 
 Haverhill shall not be compulsory. When the services of a pilot are 
 required, the rates of pilotage authorized by the commissioners shall be 
 between Newburyport and ship yards at Bellville, thirty cents per foot ; 
 between Newburyport and Salisbury, fifty cents per foot ; between New- 
 buryport and Amesbury, sixty -two and one half cents per foot ; between 
 Newburyport and Groveland, eighty-seven and one half cents per foot ; 
 between Newburyport and Haverhill, one dollar per foot. 
 
 DORCHESTER AND NEPONSET. 
 
 The pilotage for the several landing-places in the towuis of Dorchester 
 and Neponset, shall not be compulsory. When the services of a pilot are 
 required, and are offered outside of a line drawn from the wharf on 
 Thompson's Island in a direct line to Dorchester Point, the rates of pilot- 
 age authorized by the commissioners shall be, namely, to Commercial
 
 APPENDIX. 675 
 
 Point, thirty cents per foot ; to Neponset, forty cents per foot. The 
 inward and outward rates to be the same. 
 
 niNGHAJI, WEYMOUTH, AND QUINCY. 
 
 The pilotage for the several landing-places in the towns of Hingham, 
 Weymouth, and Quincy, below the bridges, shall not be compulsory. 
 When the services of a pilot are required, and are offered outside of a 
 line drawn from Nantasket Point to the east point of Pettick's Island, 
 from thence a line drawn to the north-west point of said Pettick's Island, 
 from thence in a line to Sunk Island, from Sunk Island in a direct line to 
 Hangman's Island. The rates of pilotage authorized by the commis- 
 sioners shall be, namely, to Hingham fifty cents per foot, for vessels 
 drawing ten feet and under, eleven and twelve feet, sixty cents per foot. 
 To Weymouth, or Braintree to Quincy Point, ten feet and under, fifty 
 cents per foot ; eleven and twelve feet, sixty cents per foot ; thirteen 
 feet, seventy-five cents per foot ; fourteen feet, one dollar per foot ; fifteen 
 feet, one dollar and ten cents per foot ; sixteen feet, one dollar and 
 twenty-five cents per foot ; to East Weymouth, ten feet and under, sixty 
 cents per foot ; eleven feet, sixty-five cents per foot ; twelve feet, seventy 
 cents per foot ; thirteen feet, eighty-five cents per foot ; fourteen feet, one 
 dollar per foot ; over fourteen feet, one dollar and twenty-five cents per 
 foot. The inward and outward rates to be the same. 
 
 LYNN., 
 
 The pilotage for the harbor of Lynn, shall not be compulsory. When 
 the services of a pilot are required, the rates of pilotage authorized by 
 the commissioners shall be, namely : To Lynn, on vessels drawing twelve 
 feet or less of water, three dollars per vessel ; to West Lynn, three dol- 
 lars per vessel. Up the river through bridges, four dollars per vessel. 
 The outward rates shall be one half of said inward rates. 
 
 MYSTIC RIVER. 
 
 The pilotage for Mystic River shall not be compulsory. When the 
 services of a jjilot are required, the rates of pilotage authorized by the 
 commissioners shall be, namely : From outside of Chelsea Bridge in 
 Boston Harbor to Charlestown Neck or Maiden Bridge, thirty-five cents 
 per foot ; to South Maiden, fifty cents per foot ; from Maiden Bridge or 
 either of the Railroad Bridges to Medford, Maiden, or Edgeworth, five 
 dollars per vessel. The upward and downward rates to be the same. 
 
 ' CHARLES RIVER. 
 
 The pilotage on the Charles River, from outside of Charlestown
 
 676 
 
 APPENDIX. 
 
 bridge, in Boston harbor, shall not be compulsory. "When the services of 
 a pilot are required, the rates of pilotage authorized by the commissioners 
 shall be, 
 
 From outside of Charlestown Bridge, in Boston Harbor to Fitchhurg 
 Railroad Wharf, namely : 
 
 10 feet and under 25 cents per foot. 
 
 11 to 13 feet 30 cents per foot. 
 
 14 feet and upwards 35 cents per foot. 
 
 To Landings within State Prison Bridge: 
 11 feet and under 40 cents per foot. 
 
 To Craigie's Bridge, including Loxoell Railroad Wharves : 
 
 10 feet and under 35 cents per foot. 
 
 11 to 13 feet 40 cents per foot. 
 
 14 feet and upwards 45 cents per foot. 
 
 To Landings between Craigie's and Cambridge Bridges, including all 
 • Landings in Cambridge-port: 
 11 feet and under 40 cents per foot. 
 
 From Cambridge Bridge to Willard's Bridge, in addition to the above 
 
 rates : 
 
 11 feet and under 60 cents per foot. 
 
 From Cambridge Bridge to Brighton Corner : 
 9 feet and under . ". . . . $6 00 per vesseL 
 10 and 11 feet 75 cents per foot. 
 
 12 feet • . . 80 cents per foot. 
 
 13 feet ; 85 cents per foot. 
 
 The upward and downward rates to be the same. 
 
 REGULATIONS FOR STATION BOATS IN BOSTON HARBOR. 
 
 At 12 M. Monday, December 13, 1858, the pilot boat No. 1 will take 
 her station as prescribed by the regulations for the port of Boston, and 
 remain on said station until Monday, the 20th of December, when pilot 
 boat No. 2 will take said station. And each successive Monday, said sta- 
 tion will be taken by the pilot boats in the order of their numbers. 
 
 The office of the commissioners is in the Tremont Bank building, 41 
 State street. 
 
 The commissioners will be in attendance from 9 until 2 o'clock each 
 day. 
 
 Office open from 9 until 5 o'clock.
 
 APPENDIX. 677 
 
 RULES AND REGULATIONS 
 
 FOR THE GOVERNMENT OF PILOTS 
 
 REVISED AND ADOPTED BY THE BOARD OP SUPERVISING INSPECTORS, OCTOBER 17 
 1857; AND TO TAKE EFFECT FROM AND AFTER JANUARY 1, 1858. 
 
 In compliance ivith the provisions of the 29th section of Act of Congress, entitled " An Act to 
 amend an Act entitled an Act to provide for the better security of the Lives of Passengers 
 on hoard of Vessels propelled in whole or in part hy Steam, and for other purposes," ap- 
 proved August 30, 1852. 
 
 All Pilots of Steamers navigating Seas. Gulfs, Lakes, Bays, or Rivers 
 (except rivers emptying into the Gulf of Mexico, and their tributaries), 
 when meeting or approaching each other, whether by day or by night, 
 and as soon as within sight and fully within sound of the steam-whistle, 
 shall observe and comply with the following 
 
 REGULATIONS. 
 
 . Rule 1. When steamers meet " head and head," it shall be the duty 
 of each to pass to the right or on the larboard side of the other. And 
 either pilot, upon determining to pursue this course, shall give as a signal 
 of his intention one short and distinct blast of his steam-whistle, which the 
 other shall answer promptly by a similar blast of the whistle. But if the 
 course of each steamer is so for on the starboard of the other as not to be 
 considered by the rules as meeting " head and head," or if the vessels are 
 approaching in such a manner, that passing to the right (as above di- 
 rected) is deemed unsafe, or contrary to rule, by the pilot of either vessel, 
 the pilot so deciding shall immediately give hvo short and distinct blasts 
 of his steam-whistle, which the other pilot shall answer promptly by two 
 similar blasts of his whistle, and they shall pass to the left, or on the star- 
 board side of each other. Note. — In the night, steamers will be con- 
 sidered meeting " head and head " so long as both the colored lights of 
 each are in view of the other. In the day, a similar position will also be 
 considered " head and head." 
 
 Rule 2. When steamers are approaching each other in an oblique 
 
 57*
 
 678 APPENDIX. 
 
 direction (as shown in diagram of fiftli situation), they will pass to the 
 right, as if meeting " head and head," and the signal by whistle shall be 
 given and answered promptly, as in that case specified. 
 
 Rule 3. If, when steamers are approaching each other, the pilot of 
 either vessel fails to understand the course or intention of the other, 
 whether from the signals being given or answered erroneously, or from 
 other cause, the pilot so in doubt shall immediately signify the same by 
 giving several short and rapid blasts of the steam-whistle, and if the ves- 
 sels shall have approached within half a mile of each other, both shall be 
 immediately slowed to a speed barely sufficient for steerage way, until the 
 proper signals are given, answered, and understood, or until the vessels 
 shall have passed each other. 
 
 Rule 4. When steamers are running in a fog, or thick weather, it 
 shall be the duty of the pilot to cause a long blast of the steam-whistle to 
 be sounded at intervals not exceeding two minutes. And no steamer 
 shall, in any case, be justified in coming into collision with another vessel 
 if it be possible to avoid it. 
 
 Rule 5. "Whenever a steamer is nearing a short bend or curve in the 
 channel, where, from the height of the banks or other cause, a steamer 
 approaching from the opposite direction cannot be seen for a distance of 
 half a mile, the pilot of such steamer, when he shall have arrived within 
 half a mile of such curve or bend, shall give a signal by one long blast of 
 the steam-whistle, which signal shall be answered by a similar blast given 
 by the pilot of any approaching steamer that may be within hearing. 
 Should such signal be so answered by a steamer upon the further side of 
 such bend, then the usual signals for meeting and passing shall immedi- 
 ately be given and answered. But if i\xQ first alarm signal of such pilot, 
 be not answered, he is to consider the channel clear and govern himself 
 accordingly. 
 
 Rule 6. The signals by blowing of the steam-whistle shall be given 
 and answered by pilots in compliance with these rules, not only when 
 meeting " head and head," or nearly so, but at all times, when passing or 
 meeting, at a distance within half a mile of each other, and whether pass- 
 ing to the starboard or larboard. 
 
 N. B. The foregoing rules are to be complied with in all cases, except 
 when steamers are navigating in a crowded channel or in the vicinity of 
 wharves, — under these circumstances steamers must be run and managed 
 with great caution, sounding the whistle as may be necessary to guard 
 against collision or other accidents.
 
 APPENDIX. 679 
 
 STEAMER'S LIGHTS, TO PREVENT COLLISION AT NIGHT. 
 RULE S EVE NTH. 
 
 When under Weigh. All steamers rigged for carrying sail must carry 
 a bright white light at the foremast head, and all other steamers must 
 carry a bright white light on the s(e7H or near the bow, and another on a 
 mast near the stern, or on the flag-staff at the stern, the last-named being 
 at an elevation of at least twenty feet above all other lights upon the 
 steamer. All steamers must carry a green light upon the starboard side, 
 and a red light on the port side. 
 
 Note, — Steamers, although rigged for carrying sail, instead of the 
 foremast head light, may adopt the forward and stern lights provided for 
 steamers 7iot rigged for carrying sail ; provided said lights are so arranged 
 and placed on the vessel as to secure the contemplated objects. 
 
 When at Anchor. A bright white light at least twenty feet above the 
 surface of the water. The lantern so constructed and placed as to show 
 a good light all around the hoi'izon. 
 
 First. The masthead light of steamers rigged for carrying sail to be 
 visible at a distance of at least five miles in a clear dark night, and the 
 lantern to be so constructed as to show a uniform and unbroken light over 
 an arc of the horizon of twenty points of the compass, namely : from 
 right ahead to two points abaft the beam on either side of the ship. 
 
 Second. The stem and stern lights of steamers not rigged for carry- 
 ing sail to be visible at a distance of at least five miles in a clear dark 
 night, and the respective lanterns to be so constructed that the stem light 
 shall show a uniform and unbroken light over an arc of the horizon of 
 twenty points of the compass, namely : from right ahead to two points 
 abaft the beam on either side of the ship, and that the stern light shall 
 show a uniform light all around the horizon. 
 
 Third. The colored side lights to be visible at a distance of at least 
 two miles in a clear dark night, and the lanterns to be so constructed as 
 to show a unifoi'm and unbroken liglit over an arc of the horizon of ten 
 points of the compass, namely : from right ahead to two points abaft the 
 beam on their i-espective sides. 
 
 Fourth. The side lights are to be fitted with inboard screens of at 
 least six feet in length (clear of the lantern), to prevent them from being 
 seen across the bow. The screens to be placed in a fore and aft line with 
 the inner edge of the side lights, and in contact therewith. 
 
 Note first. The object of carrying the bright white light at the fore- 
 mast head of steamers rigged for carrying sail is merely to intimate to 
 other vessels the approach or presence of such steamer.
 
 680 
 
 APPENDIX. 
 
 Note second. The object of the colored lights required to be carried 
 on all steamers is to indicate to other vessels the course or direction such 
 steamers may be steering. 
 
 Note third. The object of requiring steamers not rigged for carrj^ing 
 sail to cany a white stern light in connection with a white light on the 
 stem or near the bow, is to provide (when the vessel's rig will admit of 
 it) a method of determining, by a central range of lights, more con-ectly 
 the course that such vessel is running;. 
 
 DIAGRAMS. 
 
 The following diagrams are intended to illustrate the working of the above 
 system of colored lights, and are to be used by pilots in connection with 
 the rules, as sailing directions on meeting or nearing other steamers : — 
 
 first situation. 
 
 In this situation the steamer A will only see the red light of the steamer 
 B, in whichsoever of the three positions the latter may happen to be, 
 because the green light will be hid from view. A will be assured that. the 
 larboard side of B is towards him, and that the latter is therefore crossing 
 the bows of A in some direction to port. A will therefore (if so near as 
 to fear collision) port his helm with confidence, and pass clear. On the 
 other hand, the steamer B, in either of the three positions will see both 
 the red and green lights of A, by which the former will know that a 
 steamer is approaching directly towards him. B will act accordingly, and 
 keep away if necessary. 
 
 \^ 
 
 J53
 
 APPENDIX. 
 
 681 
 
 SECOND SITUATION. 
 
 Here A will see B's green light only, which Avill clearly indicate to the 
 former that B is crossing to starboard. Again, both the colored lights of 
 A being visible to B, will apprise the latter that a steamer is steering 
 directly towards him. If necessary, A shall starboard his helm, and if so 
 near as to fear collision, the boat shall be slowed and stopped. 
 
 c 
 
 ■^ 
 
 1 (q5 
 
 B 
 
 11 
 
 THIRD SITUATION. 
 
 A and B will see each other's red light only, the screens preventing 
 the green lights from being seen. Both vessels are evidently passing to 
 port, which is ruleable in this situation, each pilot having previously sig- 
 nified his intention by one blast of the steam-whistle. 
 
 PQ 
 
 ^ 
 
 C 
 
 J 1^ 
 
 J 
 
 FOURTH SITUATION. 
 
 Here the green light only will be visible to each, the screens preventing 
 the red light from being seen, they ai'e therefore passing to starboard, 
 which is ruleable in this situation, each jjilot having previously signified 
 his intention by tioo blasts of the steam-whistle. 
 
 c 
 
 Z) 
 
 ^r 
 
 '^ ^ 
 
 J
 
 682 APPENDIX. 
 
 FIFTH SITUATION. 
 
 This is a situation requiring great caution. Tlie red light of B in view 
 to A, and the green light of A in view to B, will inform both that they 
 are approaching each other in an oblique direction. A should put his 
 helm to 'port, according to the standing rule mentioned in the next, or 
 sixth situation, and pass astern of B, while B should continue on his 
 course, or keep away if necessary to avoid collision ; each having pre- 
 viously given one blast of the steam-whistle, as required by the rule when 
 passing to the right. 
 
 SIXTH SITUATION. 
 
 Here the two colored lights, visible to each, will indicate their direct 
 approach (" head and head ") towards each other. In this situation it is 
 a standing rule that both shall put their helms to port and pass to the 
 right, each having previously given one blast of the steam-whistle. But 
 when, for good reason, a pilot finds it necessary to deviate from the stand- 
 ing ride just stated, he shall give early notice of such intention to the 
 pilot of the other steamer by giving tivo blasts of the steam-whistle, and 
 the pilot of the other vessel shall answer promptly with tivo blasts of his 
 whistle, and both boats shall pass to the left, as shown in the fourth 
 situation. 
 
 I rq5 
 
 -a — L 
 
 pq 
 
 p^^ 
 
 The manner of fixing the colored lights should be particularly attended 
 to. They will require to be fitted, each, with a screen of wood or canvas, 
 on the inboard side, and close to the light, in order to prevent both being 
 seen at the same moment from any direction but that of right-ahead. 
 
 This is. important, for without the screens any plan of bow lights would 
 be ineffectual as a means of indicating the direction of steering.
 
 APPENDIX. 683 
 
 • This will be readily understood by a reference to the preceding illustra- 
 tions, where it will appear evident, that in any situation in which two 
 vessels may aiiproach each other in the dark, the colored lights will 
 instantly indicate to both the relative course of each, — that is, each will 
 know whether the other is approaching directly, or crossing the bows, 
 either to starboard or port. 
 
 This intimation, with the signals by whistle, as provided, is all that is 
 required to enable vessels to pass each other in the darkest night, witli 
 almost equal safety as in broad day, and for want of which so many 
 lamentable accidents have occurred. 
 
 (It might prove of infinite service, combined with the above plan of 
 steamers' lights, if all sailing vessels were provided with a green and red 
 lantern, to be shown by hand on the starboard or port bow, according to 
 the side on which the vessel might be approaching. If at anchor, all ves- 
 sels without distinction should exhibit a bright white light, at least twenty 
 feet above the surface of the water.) 
 
 Extract from Steamboat Act, approved August 30, 1852. 
 
 Section 29. Should any pilot, engineer, or master of any such vessel 
 neglect or wilfully refuse to observe the foregoing regulations, any delin- 
 quent so neglecting or refusing, shall be liable to a penalty of thirty dol-. 
 lai's and to all the damage done to any passenger or his person or bag- 
 gage by such neglect or refusal, and no such vessel shall be justified ia 
 coming into collision with another, if it can be avoided. 
 
 Section 9. Ninth Clause. The license of any such engineer or pilot 
 may be revoked upon proof of negligence, uuskilfulness, or inattention 
 to the duties of the station.
 
 NOTE. 
 
 We had intended adding to this Appendix a number of the most 
 important mercantile Forms; but have concluded to omit them in this 
 volume for several reasons. One is, that we have thought it desirable 
 to place in this Appendix a complete collection of all the statutes, and 
 the principal rules made under statutory provisions, in the United States, 
 in relation to commercial and maritime matters, as no such collection 
 exists elsewhere, to our knowledge. And this has extended the Appendix 
 so far as to leave no room for more in this volume. 
 
 Another reason is, that we have found that in all our commercial 
 cities, most if not all of these forms are sold by stationers, and are thus 
 made easily accessible to the profession (by mail, if necessary) almost 
 everywhere. 
 
 We have therefore concluded to omit these Forms here. It will be 
 necessaiy to give in the Appendix to the second volume some forms of 
 process in Admiralty, which cannot readily be found elsewhere ; and 
 some other forms may there be added, and some advantage may thus be 
 derived from placing all our Forms, whether of Contract or of Practice, 
 together.
 
 INDEX. 
 
 Note. — Under the following heads will be found a complete analytical 
 index of the whole volume : 
 
 Ch. 1. History and Origin of the La-\vs of Shipping pp. 3-24 
 
 Ch. 2, Registry and Navigation Laws . . . 25-4G 
 
 Ch. 3. Sale of Ship 47-81 
 
 Ch. 4. Part-Owners 82-110 
 
 Ch. 5, Owners 111-117 
 
 Ch. 6. ) 
 
 r,, ,1 e , h Bottomry and Respondentia . . 118-120,406-440 
 
 Ch. 11,§4. ) 
 
 Ch.7,§l-G,) 
 o %n - Carriage of Goods .... 121-180,212-228 
 8 and 9. ) ' 
 
 Ch. 7, § 7. Collision 187-211 
 
 Ch. 8. Charter-Party 229-283 
 
 Ch. 9. General Average 284-334 
 
 Ch. 10. Stoppage in Transitu 335-377 
 
 Ch. 11, §1-3. Master 378-406 
 
 Ch. 12. Seamen 441-478 
 
 Ch. 13. Pilots 479-488 
 
 Ch. 14. Material-Men 489-502 
 
 ABANDONMENT, sale bj- foreign court after, G8. • 
 none upon bottomry bond, 422. 
 
 under the statutes limiting the liability of the owners for acts of master and 
 seamen, 39.5-404. 
 ACTIONS, trover for conversion of ship by one part-owner, 84, 85, n. 1. 
 whether ship's husband can bring, 99. 
 
 by and against part-owners, 101-110. See Part-Oicners, VII. 
 joinder of part-owners in, for tort and on contract, 103, 106. 
 VOL. I. 58
 
 686 INDEX. 
 
 ACTIONS — Contlnund. 
 
 non-joinder and mis-joinder, how taken advantage of, 103-106. 
 
 between part-owners for contribution, 105. 
 
 against vessels by name, 106, 109. See Part-Owners, VII. 
 
 by one part-owner in name of vessel, 108, n. 
 
 trespass against steamboats by name, 108, n. 
 
 assumpsit for frcigiit between part-owners, 104, n. 1. 
 
 assumpsit for wages upon sliipping articles signed by one party, 447, and n. 2. 
 ACT OF CONGRESS. See Statute. 
 
 "ACT OF GOD," exception of perils by, in bills of lading, 180, 182, 183. 
 ADJUSTMENT, in general average. See General Average. 
 ADMIRALTY, sale of ship under decree of, 65-69. See Sale of Ship, IV. 
 
 care of seamen in. See Seamen. 
 ADMISSIONS, of one part-owner do not bind others, 103. 
 AFFREIGHTMENT, contracts of, under Missouri statute allowing suit against 
 
 steamboat by name, 108, n. 
 AGENCY, rules of, as applied to sale of ship, 69-71. See Sale of Ship, V. 
 
 as governing the liability of part-owners, 94. 
 
 the liens of part-owners, 83, 96, and n., 97, n., 101, 102. 
 the liability of owners, charterers, mortgagors, and mortgagees. 
 Pee Owners. 
 
 of ship's husband, 97. 
 
 when agent must use name of principal in order to bind him; distinction be- 
 tween contracts under seal and those not, 231, n. 
 
 proper signature of agent, 231, n. 
 
 wliether bottomry bond may be given to an agent, 425-428, and notes. 
 
 of master, 59-65, 69; 231, 417, 434, and n. ; 378-440. See Sale of Ship, 
 III.; v., 1; Master; and Bottomry and Respondentia. 
 AGREEMENT. See Contract. 
 ALIENS, rights of, under registry laws, 25-46, 65-69. See Registry and Navigation 
 
 Laws ; Sale of Ship, IV. 
 ALLOWANCE, 452-454. See Seamen, III. 
 ALTERATION, of charter-party, effect of, 229, 230. 
 
 in shipping articles, 450, 451. 
 APPAREL, of ship, what included in the term, 71. 
 APPURTENANCES, of ship, 71-74. See Sale of Ship, V. 
 
 ARREST, of ship or master, bottomry bond given to avoid, 423, and n., 424, and n. 
 ARKANSAS, statute of, allowing actions against vessels by name, 106, n. SeePart- 
 
 Oivncrs, VII. 
 ASSETS, marshalling of, to satisfy several bottomry bonds, 430, 431, and n. 
 
 marshalling of different, to satisfy one bottomry bond, 439. 
 ASSUMPSIT. See Actions. 
 AVERAGE, 284-335. See General Average. 
 
 accustomed, 311, 312. 
 
 B. 
 
 BALLAST, whether tcvm furniture includes, 71, n. 3. 
 
 when to be supplied by sliip-owuer, 243. 
 BANKRUPTCY. See Insolvency.
 
 INDEX. 687 
 
 BARGE, necessary to steamboat, hire of, lien as material, 477. 
 
 BILLS IN EQUITY, filed on account of profits, who must be parties to, 83. 
 
 between part-owners for adjustment of accounts, 103. 
 BILLS OF EXCHANGE AND PROMISSORY NOTES, origin of, 6. 
 
 if note of one part-owner is dishonored other part-owners liable, except, 92, 
 93. 
 
 when payment, 93, n. 1, 256. 
 BILLS OF LADING, 132-148. See Carriaye of Goods, II. ; V. 
 
 usually given notwithstanding charter-party, 240, 241. 
 
 effect of, when so given, 241. 
 
 if master sign, stipulating to cany goods at less rate of freight than that con- 
 tained in charter-party, 241, and n. 
 
 effect of, upon the right of stoppage in transitu, 358-366. See Stopparje in 
 Transitu. 
 
 indorsement and delivery of, as collateral to respondentia bond, 437. 
 BILLS OF SALE, 56-59, 74-78. See Sale of Ship, II. ; V. 3. 
 
 what recital must contain, 31. 
 
 none necessary independent of statute, 51-55, 56, n. 
 
 when may be executed, 56, n. 
 
 grand, 56, 57, 77. 
 
 misrecital of certificate in, 57, n. 
 
 parol evidence to vary, 69, 70, n. 1. 
 BLOCKADE, suspends or annuls contracts for carriage of goods, 276, 277. 
 
 all citizens to take notice of, 277. 
 
 intended blockade, rights of parties, 278. 
 
 actual, what constitutes, rights and duties of parties, 278, and n. 
 
 breach of, 278, 279. , 
 
 sailing to blockaded port, with the intention of entering, 279, 280, 435. 
 
 seizure for breach of, 435. 
 
 how far act of master in attempting to enter blockaded port is act of owners, 
 435. 
 BOATS, as appurtenant to ship, 72, n. 
 BOND, registration, 32. 
 
 bottomry. See Bottomry and Respondentia. 
 BOTTOMRY AND RESPONDENTIA, 118-120,406-440. 
 I. Hypothecation by Bottomry, 118-120. 
 
 how analogous to mortgage, 118. 
 
 what it is, 118. 
 
 distinguished from pledge, 118. 
 
 possession necessary to pledge, 118. 
 not to hypothecation, 118. 
 
 jurisdiction of admiralty in, 119. 
 
 validity of, made at home port, 119. 
 
 enforcement of, by common law process, 119. 
 
 effect of U. S. Statute of 1850, and of State statutes, requiring registration, 
 upon unrecorded bottomry bond, 1 20. 
 II. The Contracts of Bottomry and of Respondentia, 406-440. 
 A. The purpose of a Bottomry Bond, 406-410. 
 
 master's power to make, 406. 
 
 ship hypothecated for payment of borrowed money by, 406. 
 
 contract of,-why so called, 406, n.
 
 688 iN'DEX. 
 
 BOTTOMRY AND RESPONDENTIA — Continued. 
 bond, its essentials, 406. 
 binds the ship if it arrive in safety, 406. 
 of no force if ship lost, 407. 
 what words sufficient to create, 407, n. 
 as " one month after the ship arrives at her port," 407, n. 
 and " after my arrival," 407, n. 
 
 to make ship liable "whether she do or do not arrive at London," 407, n. 
 reason for allowing maritime interest, 407, and n. 
 whether may provide for common interest, 407, 408, and n. 
 and for payment by owner, whether ship safe or lost, 407. 
 permitted by law-merchant, 408. 
 if none given, lender has lien on ship in addition to common law remedy, 
 
 408. 
 owner liable for money borrowed, if necessity is caused by fault of master, 
 
 408, n. 
 bond with simple interest, binding ship, to be paid at all events, 409, n. 
 payable not alone when ship arrives safely, 409. 
 but when voyage is broken up by third party, 409. 
 by owner, 409. 
 by master, 409. 
 by deviation, 409. 
 but not from necessity, 409. 
 by a sale, 409. 
 
 by intended wreck, 409, and n. 
 not necessary to say in, that ship is not to be put to any other uses or purposes, 
 
 for the law implies this, 410. 
 lien of lender on, free from laches, good against a bond fide purchaser, with- 
 out notice, 410. 
 maritime interest, if requisite, may be presumed to be included in principal 
 
 sum, 410. 
 should describe risk assumed by lender, 410. 
 what sufficient to indicate this, 410. 
 risk such as to justify maritime interest, 410. 
 debt on, survives with maritime interest if ship is lost by peril or cause not 
 
 enumerated, 410. 
 if lost through misconduct of owner or master, 410. 
 B. Of Bottomry and Respondentia Bonds made hi/ the owner, 410, 411. 
 in home ports, 410, and n. 
 
 if owner also master, 410, n. 
 no necessity requisite, 440, 411. 
 
 owner may make, hypothecating ship before sailing on her first voy- 
 age, 411. 
 when they ai-e legal loans for usurious interest, 411. 
 if colorable and for purposes of getting usurious interest, 411. 
 question for jury, 411. 
 
 marine interest, no limit or measure to, 411, 432. 
 abroad, generally payable next voyage, 411 . 
 
 to be described with reasonable accuracy, 411. 
 if under control of government not invalid if voyage not described, 
 411.
 
 INDEX. 689 
 
 BOTTOMEY AND RESPONDENTIA— Co«i/HweJ. 
 
 C. When the Master may make Bottomri/ Bonds, 412-418. 
 only abroad, 412. 
 
 this power analogous to his power to sell, 412. 
 requires a less necessity, 412, 386. 
 any person lawfully master, however appointed, 412. 
 if appointed by underwriters, 412, n. 
 
 by consignees of cargo, 412. 
 by foreign merchant, 412. 
 by charterer, 412. 
 by consul, .387, n. 
 master of transport hired by government, 412. 
 
 of belligerent ship in foreign port by virtue of a cartel, 412. 
 upon belligerent ship, is discharged by its capture, 412. 
 
 and will not "be enforced in courts of captors, 412. 
 master, '\i functus officio, cannot give, 413. 
 
 if sbip captured and restored to owners, not a loss of ship, 413, and n. 
 condemned and sold, and proceeds i-estored to owner by decree, loss of ship, 413. 
 and owner holds proceeds free from bondholder's claim on the bond, 413. 
 how bondholder may enforce his claim, 413, and n. 
 necessity must be real and a sufficient one, 413. 
 cannot make, for money borrowed for his own use, 413, and n. 
 nor so pledge the freight, 413. 
 
 otherwise if he is both master and mortgagor in possession, 414. 
 must be a necessity of the ship, 414. 
 cannot make, of ship for freight or cargo, 414. 
 what a sufficient necessity, 414. 
 in foreign port to enable him to return home, 414. 
 if owner can act, master may not judge of the necessity, 414. 
 ■whether master may bottom in one State, if home port in another, 414. 
 if in British provinces, and owner in Maine, 414. 
 must be a foreign port in sense of distant port, 414. 
 may, where impossible to communicate with the owners though residing in 
 
 same country, 414, n. 
 also pledge credit of owners, 414, n. 
 but not if delay would work no injury, 414, n. 
 what places are foreign ports, 415, n. 
 Charleston, S. C, as to New York, 415, n. 
 New York, as to St. Johns, N. B., 415, n. 
 if telegraph is between the places, 415, n. 
 given by consent of owners on ship, freight, and cargo, if owners of cargo 
 
 refuse to advance money, 415, n. 
 master must at least attcmi)t to communicate with owners, 415, n. 
 where fact of advertisement for loan is known to owner of cargo but he has 
 
 no direct communication, 415, n. 
 master no power, if he has funds of owner within his reach, 415. 
 
 or if he can borrow on owner's personal credit, 415. 
 or if consignee with funds of owner, or agent there, 415. 
 or perhaps if master have funds of his own, 416. 
 certainly if funds of owner on board, 416, n. 
 or if master have goods on board and can also procure money at port of dis- 
 tress, 416, n. 
 
 58*
 
 690 INDEX. 
 
 BOTTOMRY AND RESPONDENTIA— Cwi/»n/«/. 
 but if latter clement wanting, 416, n. 
 
 ■what owner must do if necessity for supplies, &c. onc2 made out, 416, n. 
 non-existence of, and inability to get, funds, equal to distress, 416, n. 
 whether he can make to himself, 416. 
 
 or charge more than legal interest for use of his own money 416, 
 not bound, and perhaps has no right to take money on board belonging to 
 
 shippers, 416, 417. 
 reasonable discretion must exercise in this, that there maybe the least sacrifice, 
 
 417,n. 
 if part-owner, or agent of part-owner, present, 417. 
 whether to the agent himself, 417, n. 
 to secure former debts of owner, 417, and n., 418. 
 if given by owner, merges other debts, 418. 
 master may give to a consul in a foreign country, when, 418. 
 duty of master to raise money upon, to avoid selling ship, 63. 
 
 D. TJutij and Obligation of Lender on Bottomry, 418-420. 
 lender must see that necessity exists, 418, 428, n. 
 
 what can never be presumed in such cases, by, 418, n. 
 
 what inquiries necessary by, 418, n. 
 
 not bound to inquire into the expediency of incuiTing expense of 
 repairs with reference to owner's interest, 418, n. 
 in an action on bond, production, and proof of execution, will not entitle 
 holder to a decree, 418, n. 
 
 must prove necessity and exhibit account of items, 418, n. 
 if mistaken, as to necessity after due inquiry, 419. 
 if he connive at any fraud of master, this avoids bond, 419. 
 
 and he loses his lien on ship for money advanced, 419. 
 if not conusant of master's fraud, 419. 
 
 not bound to see that master applies funds to ship's necessities, 419. 
 if owner I'esists payment on account of fraud, burden of proof, 419. 
 proper inquiries presumed, 419. 
 master not competent witness for libellant to prove necessity of repairs, and 
 
 why, 419. 
 if lender in debt to ship-owner, must apply debt to ship's necessities, 419. 
 and cannot, by advancing, bind ship with maritime interest, 419. 
 if connives with master to send ship on new voyage, avoids bond, 420. 
 master may thus raise money to perform what voyages, 420, and n. 
 
 E. When additional Security may be given Lender, 420-422. 
 
 lender may take, when discharge of bond discharges the security, 420. 
 
 repayment more certain if ship arrives, 420. 
 
 gives no claim if ship lost, 420. 
 
 property mortgaged to secure a bond, mortgage defeated by whatever avoids 
 
 the bond, 420, n. 
 .bottomry bond, when gives any claim against owners personally, 420, and n., 421 . 
 written so as to confine lender to ship, 421. 
 right of owner to abandon to lender, on ship's aiTival, and exempt 
 
 himself from responsibility, 421. 
 wliether parties might make different bargain, 421. 
 ■by rule 18, of Supreme Court of U. S., confined to claim on property 
 
 find suits in rem, except, 421, and n. 
 in case of fraud of master, 421, n.
 
 INDEX. 691 
 
 BOTTOMRY AND EESPONDENTIA — Co»i/«wfc/. 
 
 if ship prevented from ai-riving by wrong of master or owner, remedy 
 
 against them personally, 421, n. 
 or if master or owner destroys the ship, 421. 
 or if by their fault, lender lost the security of ship, 421. 
 under this rule, must be distinctly for owner's wrong doing, to sustain 
 action against him, 421, n. 
 enforced against proceeds of ship, the cargo which had been sold, and that 
 
 transshi]iped, 422, n. 
 owner by abandonment may make total loss to insurer, 422. 
 but not against bottomry bondholder, 422. 
 no salvage or average upon bottomry bond, 422. 
 except by special contract, 422.' 
 
 and then contributes only on value of property hypothecated without maritime 
 interest, and is entitled to contribution and salvage, 422. 
 F. Of a BoUomnj Bond for Supplies mid Repairs, 422-424. 
 
 if so given, good when supplies originalh- intended to be furnisliedon credit of 
 
 ship, 422. 
 not good when advances made on personal credit of master or owner, 422, n. 
 if advances made without any original understanding or contract, presump- 
 tion that bond contemplated, 422, n. 
 valid, if given to cover sums advanced with no contemplation of, and for 
 
 other sums with such contemplation, 423, n. 
 given for expenses of investigating a mutiny and restoring master to his com- 
 mand, when the vessel arrived in distress, and the crew in a state of mutiny 
 and no mention made of bond at outset; valid, 423, n. 
 invalid, if original purpose to furnish on personal credit of master or owner, 
 
 or both, 423. 
 if no other way of liberating ship from such debt in a foreign port, valid, if 
 
 made in good faith, 423. 
 presumption in favor of, and against personal credit, if lien on ship by law 
 of country where bond given, 424, n. 
 • master not justified in giving, upon a mere threat to arrest ship for preexist- 
 
 ing debt, 424, n. 
 whether he can hypothecate, in any case, where vessel is or might be arrested ; 
 
 424, n. 
 
 made by master to release vessel, and lender knowing to be so used, held 
 
 invalid when, 424, n. 
 cannot be given to release master from arrest, 424, n. 
 though arrested for debt contracted for ship, as master, 424, n. 
 invalid, if attaching creditor is obligee, when given to release ship, 424. 
 the reasons therefor, 424, n. 
 G. Of a second Boltomrij Bond, 425. 
 
 funds necessary to pay first may enter into, 425. 
 
 holders of, stand as assignees of first, 425. 
 
 how far good, if first bad, 425. 
 
 given to discharge a prior loan, 425, n. 
 
 application of loan as by borrower, does not affect the lender, in good faith, 
 
 425, n. 
 
 by owner, to secure an old debt, how regarded, 425, n. 
 by second master, of a sum equal to amount borrowed by first master, 
 425, n.
 
 692 INDEX. 
 
 BOTTOMRY AND RESPONDENTIA — Co«//nj<e(/. 
 H. To whom a Bottomnj Bond inaij he made, 425-428. 
 
 whether to consignee, or to one holding to ship-owner relation of agent, 425 
 
 and 426, n. 
 if consignee has funds of owner, cannot lend his own on, 425, n. 
 propriety of consignee taking, 426, n. 
 not bound to risk his property without taking, 426, n. 
 given to consignee of cargo and agent of charterer, 426, n. 
 when an agent may take, 426, n. 
 when consignee acts fraudulently, 427, n. 
 
 given to consignee, what care and vigilance necessary, 426, 427. 
 what must be shown, 427. 
 
 consignee held to strict accountability of an agent, 427. 
 to agent, no right to ship his own property, which might be dangerous, and 
 
 when it became so charge owner for re-landing, 427, n. 
 given to agent, his duty, 427, n. 
 
 all transactions connected with the giving, how viewed by court, 428, n. 
 lender on, bound to sec that necessity exists, 428, n. See ante, D. 
 given to consignee by master appointed by him, 428. 
 to charterer, same rules as above, 428. 
 
 to a part-owner attempting to bind other owners to pay extra interest for re- 
 pairs not valid, 428. 
 I. A Bond may be good in pait and void in part, 428, 429. 
 
 givfen for sums of money in items, some lawful, others not, 428. 
 court will analyze claims, and require proof of each, 428. 
 and decree in favor of those only properly substantiated, 428. 
 where the larger sum not properly subject of bond, 429, n. 
 whether courts of law have this power, 429. 
 J. Of the hypothecation of the Freight, 429. 
 
 hypothecation of ship not necessarily hypothecation of freight, 429. 
 master may hypothecate freight as he may under same circumstances the ship , 429. 
 general hypothecation of freight in foreign port construed to include what, 429. 
 whether earned or not, 429. . 
 
 if it has not been paid to master or owner, 429. 
 of subsequent voyage, held liable, 429, n. 
 liable to contribute 7J?-o rata with ship, 429, n. 
 freight earned by sub-shippers, 429, n. 
 K. Of the construction of a Bottomry Bond, 429-433. 
 preferred to any other lien, 429, 410, n. 2. 
 except prior claims for damage, when, 430, n. 
 and lien for seaman's wages, 430. 
 
 wages earned before a salvage sen^ice not entitled to a priority, 
 
 430, n. 
 on outward voyage before bond, 430, n. 
 on several voyages, lien extends to all, 430, n. 
 and liens of material-men, for repairs indispensable to ship's safety, 430. 
 reason of rule giving priority, 430. 
 
 exceptions to rule, 430. 
 several given, last takes precedence of former, 430, 
 if at same place and on same voyage and risk, 430, n. 
 if of several bonds, some are on ship, some ou freight, and some on cargo 
 marshalling of assets, 430, n., 431, n.
 
 INDEX. 693 
 
 BOTTOMKY AND Ji'ESTO'SB'E'STlA— Contimicd. 
 
 privilege of priority confined to bonds given under necessity in a foreign 
 port, 431, n. 
 
 holder of, discharging demand of seamen for wages, becomes assignee of their 
 claims and takes their places, 431. 
 
 has a right to pay them and so stand, 431, n. 
 
 cannot exact of them formal assignment, 431, n. 
 
 nor payment of his proctor's fees, 431, n. 
 
 nor upon offer to pay wages require them to defer prosecu- 
 tion, 431', n. 
 
 whether owner's assent required, or some security, 431. 
 
 what lender on, may include in his claim, 431. 
 
 advances made for indispensable rejjairs and supplies, 431. 
 
 from reason that it saved the ship, construed liberally, 431. 
 
 intention of parties, if possible carried into effect, 431. 
 
 necessity of in mercantile affairs, 431, n. 
 
 creature of necessity and distress, 432. 
 
 lender acting in good faith protected from technical objection, 432. 
 owner, against oppression, 432. 
 
 "of a high and sacred character," meaning of phrase discussed, 432, n. 
 
 principles of equity applied to, by admiralty courts, 432. 
 
 no limits to maritime interest, 432, 411. 
 
 court of admiralty will reduce it when, 432. 
 
 practice in England to refer items of bond and premium to registrar and mer- 
 chants, 432, n. 
 
 power of court upon their return, 432, n. 
 
 when legal interest only is allowed, 433. 
 
 when lender should enfoi'ce and realize his lien, 433. 
 
 permitting ship to voyage about with lien unrecorded, 433. 
 
 does not create an absolute interest in ship, 433. 
 
 nor give indissoluble lien, 433. 
 
 if lender delays enforcing lien unreasonable time, 433. 
 
 third party acquiring vessel without knowledge of lien, 433. 
 
 lender will be held to have waived and lost lien, 433. 
 
 suit on, commenced and abandoned, and another suit on same bond, 433. 
 
 when ship an-ested and damages pronounced for, and second action subse- 
 quently commenced for subsequently discovered damage, 433, n. 
 L. Of the power of the Master over Cargo, 433-436. 
 
 different relation of master to ship and to cargo, 433. 
 
 master bound to receive cargo, store it properly, care for it during voyage, 
 carry it directly, and deliver it safely, 433, 434. 
 
 may be consignee or supercargo, 434. 
 
 unites but does not combine these several offices, 434. 
 
 on the voyage regarded only in the character of master, 434. 
 
 when ship and cargo readied their destination, in character of supercargo and 
 consignee, 434. 
 
 functions may be contemporaneous, 434. 
 
 at port of destination, when master and when consignee, 434. 
 
 if he cannot sell cargo may leave it with merchant, 434, n. 
 
 when a common carrier and when a factor, 434, n. 
 
 for acts of, in selling, owner liable, and why, 434, n. 
 
 owner liable for proceeds of sale as well as for safe transportation, 434, n.
 
 694 
 
 INDEX. 
 
 BOTTOMRY AND RESrONDENTIA — Co«/in«ec7. 
 
 receiving commission for selling goods, how considered, 434, n. 
 
 owner of ship then responsible for what, 434, n. 
 
 power to sell when goods consigned to him, not revoked by owner's selling 
 while vessel at sea, 434, n. 
 
 if he takes goods on shore with intent to embezzle, barratry, 434. 
 
 if he contracts with shipper so as to give a lien on ship, he docs it as mas- 
 ter, 434. 
 
 no power to hypothecate ship when necessity has arisen through his wrongful 
 act, 435. 
 
 while exercising his duty as, stranger to cargo, between lading and unlading, 
 435. 
 
 may become supercargo, or consignee through necessity, 435. 
 
 must use all his power, in case of capture, to procure restoration of cargo, 
 435. 
 
 sufficient, if what he does is done in good fivith, 435, n. 
 
 and is not bound to act fraudulently, 435. 
 
 in seizure of ship and cargo for breach of blockade, how far act of, in attempt- 
 ing to enter, act of owner of cargo, 435. 
 
 if vessel sails with full knowledge that port of destination is blockaded, 435. 
 
 if blockade proclaimed after vessel sailed, 435. 
 
 may sell cargo, when, 435. 
 
 if voyage broken up, cannot sell at intermediate port, 435, n. 
 
 sale, without necessity, by, gives purchasers no right, 435, n. 
 
 cannot sell to pay debt of owner, 435, n. 
 
 when duty to transship, and if goods perishable, 435, n. 
 
 may sell part of cargo to finish voyage, 435, 436. 
 
 must first exhaust other means of raising the money, 436. 
 
 for such sale, there must be actual and urgent necessity, 436, 
 
 acts of, in such cases, when held valid, 436. 
 
 not sufficient to act bona Jide, if no necessity exists, 436. 
 
 may sell at once if cargo belongs to ship-owner, 436, n. 
 
 when justified as an act for the common benefit, 436. 
 
 if ship profit most by such sale, 436. 
 M. Of a Respondentia Bond, 436-438. 
 
 master may hypothecate part or whole of cargo, 436. 
 
 only a part can be sold to raise funds, and reason thereof, 436. 
 
 hypothecation effijcted by a respondentia bond, 437. 
 
 usual form, 437. 
 
 same to goods as bottomry bond to ship, 437. 
 
 master no authority to give bond on cargo alone, 437, n. 
 
 if he does, ship and freight first liable, 437, n. 
 
 may be made by owner of goods at home without any necessity, 437. 
 
 so made as to take up former bond, 437. 
 
 not necessary that money so raised should be expended for or about the 
 goods, 437. 
 
 if made by master, can be only from necessity, 437. 
 
 loan on, is a loan on maritime interest, 437. 
 
 and gives lender no claim if goods lost, 437. 
 
 where difference between amount lent on, and goods on board, 437, n. 
 
 obligee in, holds goods as collateral and as transferred by indorsement and 
 delivery of bills of lading, 437.
 
 ixDEX. 695 
 
 BOTTOMRY AND RESPONDENTIA — Continued. 
 
 and has constractive possession thereby, 437. 
 contract gives no lien upon cargo, if the cargo is to be sold free of lien and 
 
 proceeds returned, 437, n. 
 return cargo not in existence at time of giving, cannot be subjected to a 
 
 lien, 437, n. 
 bottomry bond on " the ship and freight " binds only them, and excludes 
 
 cargo, 438. 
 even if master compelled to take up the money on " said schooner, her cargo 
 
 and freight," 438. 
 ■whether if portion of cargo is pledged there is a right of contribution, as 
 
 against ship-owners and other ship])ers, 438. 
 when ship would be responsible in first place, 438. 
 
 rest of cargo would contribute when ship could not be made to pay, 438. 
 shippers contributing, to recover from the ship, 438. 
 owner of goods sold not entitled to recover what they would have realized, 
 
 at port of delivery unless ship arrives, 439, n. 
 it is necessarj'^ therefore to aver ship's arrival, 439, n. 
 N. Some special Rules in refjard to Bottomry Bonds, 439, 440. 
 in payment of, assets to be marshalled, 439. 
 
 ship-owner's property first applied, 439. 
 money of master, next, 439. 
 and then goods of shipper, 439. 
 
 both ship and freight liable before cargo, though bond given on 
 cargo alone, 439, n., 440, n. 
 what constitutes the principal in making up decree, 439. 
 legal interest added thereto from what time, 439. 
 
 interest allowed in England only on bond, and not on bond and 
 
 interest, 439, n. 
 after judgment, interest allowed when, 439, n. 
 when legal holders reside out of the country and no agent, 439, n. 
 when several concurrent bonds given if property will not pay all, 440. 
 will be paid pro rata, though ditferent bonds bear different dates, 440. 
 in admiralty generally regarded as negotiable instrument, and payment en- 
 forced by holder, 440. 
 but guaranty of payment by indorsement does not extend to maritime 
 
 interest, 440, n. 
 on ships in service of foreigners, trading within limits of East India Compa- 
 ny's charter, void, 440. 
 belonging to English subjects, require to be made only on ship and cargo, 440. 
 jurisdiction exercised over, in England, by equity and admiralty courts, 440. 
 obtained from master by duress, void, 440. 
 
 that master was under a duress at time, no proof of bond being so given, 440. 
 if it contain clauses projjer to mortgages, not prevented from being bond, 440. 
 sale of ship to pay, 65. 
 BRACTON, 5. 
 BRITTON, 5. 
 
 BROKER, has lien on ship for what services, 489, 490. 
 BROOKE, 5. 
 
 BUILDER, sale of ship by, 74, 78. See Sale of Ship, V., 3. 
 right of, to complete after sale, 75, 78, n. 
 certificate of, 74, 78.
 
 696 INDEX. 
 
 BULLION, contriliutory value of, in general average, 323. 
 limitation of carrier's lialiility for loss of, 404, 405. 
 BUEDEN OF Til OOF. See Evidence. 
 
 C. 
 
 CANAL BOATS, when common carriers, 176, n. 
 
 material-men have no lien upon, 494. 
 CAPTAIN. Sec Master. 
 
 CAPTUEE, by foreigners, when vessel cannot be registered after, 34. 
 when discharges bottomry bond, 412, 413. 
 duty of master upon, 435. 
 
 delay by, whether gives ground for demurrage, 263, 264. 
 charterer liable for time lost by, 266. 
 
 when suspends and when annuls contract for carriage of goods, 280, 281. 
 ransom when an average loss, 298^ 299. 
 
 expense incurred after capture when an average loss, 201, 202. 
 CAEGO, not appurtenant to ship, 73, n. 
 
 partnership in, and part-ownership in vessel, 83, 96, n., 97, n. 
 ship's husband no power to purchase, 98. 
 carriage of. See Carriage of Goods. 
 injured by collision, 190, 191. 
 damages for inability to carry full cargo, 242. 
 what constitutes a full cargo, 244, and n. 
 contributory value of, in general average, 322. 
 
 power of master over, 433-436. See Bottomry and Respondentia, L. 
 respondentia of. See Bottomry and Respondentia. 
 CAEEIAGE OF GOODS, 121-186,' 212-228. 
 
 I. Carriage of Goods on Freight, 121-131. 
 ship, importance of, 121. 
 
 public policy in regard to, 121. 
 system "of liens, how affected by this policy, 121. 
 freight, meaning of; compensation for carriage of owner's goods, for carnage 
 
 of goods belonging to others, and for hire of ship, 121, 122. 
 reciprocal rights and liens of ship and cargo, 122. See also, Charter-Parii/, III. 
 ship owner undertakes : 
 
 how to carry goods, 122. 
 
 that ship is sea-worthy, 122. See 65, 66, 98, and also Seamen, IV. 
 and sufficiently manned, 122. 
 how to lade and deliver goods, 122. 
 to avoid delay and deviation, 122. 
 upon deviation, insurer's risk upon cargo ceases, and ship-owner liable 
 as insurer, 123, n. 
 even if loss does not arise from deviation, 123, n. 
 the rule of damages for injury to shipper by deviation, 123, n. 
 intention to deviate, 123, n. 
 usage to deviate, 123, n. 
 if goods are laden on deck, 124, n. See also Deck. ' 
 goods sent by ship not specified, 124, n. 
 
 when shipper may proceed against ship-owner or ship, 123, 124, and n. 1. 
 whether against ship, if owner not liable, 124, n. 1.
 
 INDEX. 697 
 
 
 
 CARRIAGE OF GOODS — CoH^/m/erf. 
 
 power of master to bind ship and owner by contract of affreight- 
 ment, 124, n. 1. 
 ship-owner's lien, on goods properly transported, 125-128, 242, 143, 145, 
 and n., 146, and n. 
 conflicting views as to the origin and nature of, 125, n. 1, 126, n., 
 
 127, n. ; 145, and n., 146, and n. 
 the same, whether the goods are sent under a cliarter-party, or by 
 
 bill of lading, 125, n. 1. 
 nature of, as distinguished from that on ship, 126, n. ; 145, n., 
 
 146, n. 
 distinguished from common law liens requiring possession of the 
 
 property, 126, n., 127, n. 
 distinguished from that of common carrier, 127, n. 
 delivery of goods procured by fraud, does not avoid, 127, n. 
 election of ship-owner to proceed against goods or shipper, 127, n. 
 loss or waiver of, 127, n. 
 none for dead freight, that is, freight on unoccupied portion of 
 
 ship, 127, n., 128, n. ; 244. 
 right to carry goods once on board, 126-128, and n. 1, 158, 159, 
 
 167, n. 1, 218, 277, n. 
 damages, if shipper removes goods once on board, or breaks con- 
 tract to carry, 128, and n. 1, and 129, n. 
 if master re-demands goods after lading, 128, n. 1. 
 law of freight consists of what, 129. 
 
 difficulties in enforcement of lien of cargo on sliip, at common law and in 
 t equity, 129. 
 
 enforced in admiralty by process in rem, 129, 130. 
 when enforced, as against third parties, 130. 
 " general ship," what, 130. 
 
 how advertised for freight and sailing, 130. 
 when so offered, how far owner bound ; waiTanty, 131, and n. 
 notice of change, 131, n. 1. 
 II. Bill of Lading, 132-148. See also pos^, V. 
 
 when reception of goods by owner, or master, or their agent, binds ship to 
 
 safe carriage and deliveiy, 132, and n. 
 who considered their agent, 132, and n., 133, and n. 
 reception by any person on hoard, 133, and n. 
 where sometimes signed and delivered, and by whom, 133. 
 
 signed by clerk of owners, when master thereby bound, 133. 
 written receipt, prima facie evidence of reception, 133, 134. 
 
 who signs receipt, 134. 
 its antiquity, 134. 
 its universality, 134. 
 
 used by rail-road companies and common carriers, 134. 
 properly a sea document, 134. 
 equal force in shipping and land carriage, 134. 
 what are the essential elements of, 134. 
 by whom it must be signed, 134, n. 
 what held not to constitute, 134, n. 
 
 not to be signed and delivered until goods are actually received, 135. 
 if only signed and not delivered, of no force, 135. 
 
 VOL. I. 59
 
 698 INDEX. 
 
 CAKRIAGE OF GOODS — Conflnued. 
 
 statements of, must be accurate, 135. 
 
 if signed before goods are on board, when it may apply to goods shipped af- 
 terward, 135. 
 when, only, master has authority to sign, 135. 
 
 binding effect of, upon owners, when signed before goods are received, 135. 
 agreement for, 135, n. 1. 
 prima facie evidence of condition of goods therein described, at that time, 135. 
 
 See 171. 
 ship-owner discharged from liability for injuiy to goods in, by proof of intrin- 
 sic defect or principle of decay, 135, 136; 216, n. 2. 
 but master must do all in his power to prevent defect or decay from 
 
 developing itself, 136, n. 1. 
 and ship-owner's contract may assume this risk, 136. 
 ship-owner may contradict statement in bill of lading that goods are in 
 good order, 136, n. 
 loss or damage of goods in, presumption of law, carrier's fault, 136, n. 
 
 burden of proof on him to show otherwise, 136, n. 
 when ship-owner unable to rely upon intrinsic defect against indorsee of, who 
 
 purchased upon faith of, 137. 
 not conclusive between ship-owner and shipper, 137, n. 2, 143. 
 if it has changed situation of parties trusting to it, when ship-owner, and when 
 
 innocent pai'ty, to suffer, 137, and n. 2. 
 its twofold character, as receipt and contract, 137, n. 2. 
 
 as receipt, open to explanation, 137, n. 2 ; 136, n., 143, n. 
 
 as contract, not altered or explained by parol, 137, n. 
 
 as between shipper and ship-owner as a receipt may be, explained, 
 
 137, n. 
 as between ship-owner and assignee for value, not to be explained, 
 137, n. 
 who consignor in, 137. 
 who consignee in, 138. 
 
 a quasi negotiable instrument, 138, 141, n. 2. 
 word " assigns " in, 138. 
 transferable by indorsement, how far, 138. 
 
 indorsement of, with delivery, prima facie evidence of transfer of goods, 138. 
 indorsee of, cannot sue on, in his own name, except, 139, and n. ; 226, n. 1. 
 
 but may sue for detention or conversion when, 139, n. 
 when sliip bound to deliver goods to indorsee of, 139. 
 when indorsement and delivery of, binding, 139. 
 right of consignor in, to stop in transitu, 139, 141, 142. 
 indorsement of, as security of a preexisting debt of consignee, 139. 
 indorsee of, for no considei-ation, no right as against a subsequent bond fide 
 
 transferree or attaching creditor, 139. 
 when agreement to assign a, is an assignment, 140. 
 
 property in goods covered by, how transferred without indorsement and de- 
 livery, 140. * 
 transfer of goods shipped without, 140, n. 2. 
 
 effect of a condition in, or a condition in the indorsement, 140, 142. 
 signed in sets of three, 140. 
 disposition of the sets, 140, 142. 
 consignee in, when his title is complete, 141.
 
 INDEX. 699 
 
 CAEEIAGE OF GOOBS—Contmued. 
 goods at the risk of, 141. 
 divested, by what, 141. 
 when indorsee of, same as consignee, 141. 
 bond fide indorsee of, for value, without notice, holds property as against party 
 
 who has paid value, on the faith of a contract to purchase, 141, n. 2. 
 sent to a third party, without indorsement, gives no rights to third party, but 
 
 simply a notice, 141. 
 consignor in, what risk he takes by making vendee, consignee, 142. 
 constructive delivery, 142. 
 
 stringent obligations on master, to deliver goods according to, 142. 
 evidence against master or owner, of what, 143. 
 how goods described in, 143. 
 
 " contents unknown," "said to contain," effect of in, 143. 
 if words " containing, etc." added, master and ship held to deliver what. 143. 
 right of lien reserved in, 143. 
 
 waived expressly or by implication in, 144 and n. 
 master bound to deliver goods, when, 143. See III. post. 
 shipper or consignee bound to pay freight, when, 143. 
 construction of, as to master's, or owner's, lien, 144, and n. 
 charter-party, construction of, 144, n. See Charter-Part)/. 
 lien by, when lost, when waived, when retained, 143-147. See Charter- 
 , Party, III. 
 waived expressly, and by implication, 144, and n. 1. 
 waiver of lien, by stipulation that freight shall be paid subsequent to 
 
 delivery of goods, 144, and n. 1. 
 of ship on goods, maritime, or common law ? 145, n., and 146, n. ; 
 
 125, n. 1 ; 126, n., and 127, n. 
 if delivery is induced by fraud, 147. 
 consignee in, right to goods detained wrongfully by third person, 147. 
 unusual stipulations in, 147, and n., 170. 
 
 as to disposal of goods and their proceeds, 147. 
 freight, contract for, entire, when, 148. Seej^o-sf, IV. 
 exceptions thereto, 148. 
 as to quantity of goods, 148, 151. 
 completion of voyage, 148. 
 (for the construction of various phrases in bills of lading, see post, V.) 
 III. Delivery of tub Goods, 149-158. 
 
 consignee must pay freight for what is delivered, when, 149. 
 
 if part delivered, and accepted, of entire cargo, when freight of that part to 
 
 be paid, 149. 
 when consignor not l)0und to pay pro rata freight, 149. 
 freight due for what is shipped, 150, and n. 1 ; 149, n. 3. 
 delivery of jiart, and payment for rest by owner, entitles him to whole freight, 
 
 wlicn, 150. 
 shipi)er's claim for goods not delivered, 150. 
 
 when ship-owner not responsible for full value of goods not delivered, 150. 
 if goods lost or injured, burden of proof upon ship-owner to show how loss 
 
 occurred, 150, and n. 4. 
 when tliis shown, liurden on shipper to show what, 151. 
 if shipper is paid full value of goods, ship-owner may deduct what, 151. 
 owner's lien for freight and value of goods, 151, n. 2.
 
 700 INDEX. 
 
 CARRIAGE OF GOOrfS — Continued. 
 
 wlicn voyage is not completed, and consequent non-delivery at tlie terminus, 
 
 151 ; 148, and n. 3. See post, IV. ; VI. 
 ship-owner's retention of goods to satisfy lien, prevents action for freight, 151. 
 condition precedent to action for freight, 151. 
 prevented by fault of shipper or consignee; claim for freight, 151. 
 wrongful seizure by custom house officers, 152, n. 1. 
 
 tender at end of voyage, and delivery prevented by prohibition of govern- 
 ment, whole freight earned and due, 151, n. 4, 152. 
 prevented by blockade, freight not earned, 152. 
 
 attachment, freight earned, 151, n. 4. 
 at quarantine, by usage delivery at port, 152. 
 
 no particular port of, mentioned, presumption that general port is meant, 152. 
 personal, necessary, as general rule of carriers, 152. 
 
 applicable to hoyman plying to wharf, 152, n. 5. 
 not applicable to ships, 152, 153. 
 on wharf, with notice to consignee, sufficient, 153. 
 wharf must be suitable for cargo, 153. 
 
 if insufficient, no delivery, and vessel liable, 153. 
 carrier's liability revives, if goods reshipped, 153. 
 delivery on wharf, how to be made ; different consignments, how to be landed, 
 
 153. 
 what notice master must give to consignees, 153. 
 
 to to ) , 
 
 casual knowledge of consignee not sufficient, 154. 
 newspaper notice ; proof that consignee read it, 154. 
 
 when sufficient, 154. 
 want of notice, when excused, 1 54. 
 master's wrongful omission to sign bill of lading no excuse for not giving 
 
 notice, 154. 
 if it is shipper's fault that there is no bill of lading, what notice is sufficient, 
 
 154. 
 what duty of master if no consignee is named in bill of lading, or cannot be 
 
 found after reasonable exertion, 154, n. 3, 155. 
 when consignee refuses to receive goods, 155. 
 
 must have reasonable time to determine whether to accept or not, 
 
 155. 
 not liable for freight, until acceptance of goods, 155. 
 when it must be made, 155. 
 
 on proper day, as to weather, 155. 
 on business day, 155. 
 at proper hour of such day, 155. 
 
 must be reasonable in time, place, and circumstance, 155. 
 consignees, not bound to receive goods at an unusual time by their 
 clerks or truckmen, 155. 
 reasonable notice of, as to time, 155, n. 5. 
 without notice, .usage of, may be shown, 156. 
 usage of wharfingerslo accept goods, not binding, 156. 
 manner of, parties may make special contract, 156. 
 if goods illegibly directed, carrier not liable for loss of, 157. 
 
 when liable, 157. 
 delivery at foreign port, different from, in coasting trade, 157. 
 notice of readiness for, by one carrier to another, 157.
 
 INDEX. 701 
 
 CARRIAGE OF GOODS — Continued. 
 
 neglect of consignee to remove delivered portion of entire shipment, when 
 
 releases carrier's liability therefor, 157. 
 at port of destination, necessary, 158. 
 at intermediate port, to be forwarded by another boat, 158. 
 duty of master of vessel on river Thames, as to goods forwarded in'a lighter, 
 
 158. 
 duty of master as to goods in a lighter generally, 158, n. 2. 
 IV. Forwarding of the Goods in other Vessels, 158-173. 
 
 before voyage completed, ship-owner has no claim for freight, 158; 148, n. 3, 
 
 151. 
 and no lien on cargo for payment of freight, 158. 
 
 but has lien on cargo, for rirjht to earnfreirjlit, either by completing voyage in 
 same ship ; or, in certain cases, by forwarding goods in another sliip, 158, 
 159 ; 126-128, and n. 1 ; 166, n. 1 ; 242. 
 when and how he may forward the goods in another ship : 
 
 shipper has right to reclaim, by paying full freight, 159. 
 
 master's right to give up goods at intermediate port, and demand full 
 
 freight, 159, n. 
 whether obliged to give them up, upon tender of full freight, 159, n. 2. 
 what ship-owner may do to earn freight, 160, 161. 
 when he may transship, 161. 
 M'hen bound to, 161. 
 
 must use reasonable endeavors to obtain another ship, 162. 
 duty as to bill of lading, when he sends goods on, 162. 
 expenses of forwarding, to whom chargeable, 162. 
 owner of goods transshipped, chargeable with excess over freight, 162, 
 
 163. 
 how far insurer of cargo liable for this excess of freight, 163, n. 1. 
 master agent of both parties ; of owner to save his freight, of shipper 
 
 to save his goods and forward them, 163. 
 custom of charging lighterage in addition to freight, 163, 164. 
 wilful neglect to transship, gives shipper right to his goods, without 
 paying freight, 164, 215. 
 master's or ship-owner's interest in, or lien on goods arises from earning of 
 
 freight, 164, 215. 
 effect of tender of goods at intermediate port, 165. See 215. 
 shipper on acceptance, must pay freight ))ro rata, 165 ; 242. 
 what acceptance creates obligation to pay pro rata freight, 165, 166. 
 
 must be voluntary, 165. 
 what is not a voluntary acceptance, 166, 167, 169. 
 \? obliged to take them to relieve from capture or otherwise, 165, 166. 
 when under no obligation to pay any freight, 166, 167. 
 if ship never breaks ground, 167, n. 1, 128, n. 1, 218. 
 master's authority to accept cargo at intermediate port, 167. 
 abandonment of goods to underwriter after voyage broken up, jiro rata freight, 
 
 167. 
 no freight pro rata recoverable on original contract, 168 ; 167, n. 1 ; 166, n. 1. 
 how claim for, sustained, 168. 
 
 where part lost by peril of sea, and part delivered under charter-i)arty, 168. 
 how proportion of pro rata freight due is calculated, 168. 
 
 two ways: geographical, or commercial (pecuniary) parts, 168. 
 
 59*
 
 702 INDEX. 
 
 CARRIAGE OF GOODS — Continued. 
 
 proportion of distance, or cost of transit, 168. 
 latter rule most favored, 169. 
 how best applied, 169. 
 questions of piv rata freight most frequent in cases of capture or condemna- 
 ■ tion or sale under decree of salvage, 169. 
 stipulations in contracts as to pro rata freight, 170. 
 
 if vessel ordered into quarantine, and goods there landed and stored, con- 
 signee liable for expenses of same, 170. 
 when custom at quarantine, for consignee to pack and take care of his own 
 
 goods, his neglect to do so releases master for damages to, 170. 
 what condition goods must be delivered in, 170. 
 damages to goods, from other goods stowed in hold, 170. 
 where stowage the proximate cause of damage, 170. 
 legal presumption of condition of goods by bill of lading, cannot affect third 
 
 parties, 171 ; 135, 136. 
 shippers answerable to owners for putting on board dangerous or insufHciently 
 
 packed goods, 171. 
 goods forbidden to be exported, shipper liable if ship seized, 172. 
 goods damaged, duty of master, and not consignee, to separate, 172. 
 effect of literal and precise application of bill of lading, 172. 
 if goods delivered, but damaged by causes for which ship-owner is responsi- 
 ble, freight is payable, 172; 215, 216. 
 shipper may claim by set-off or independent action, compensation for 
 damage, 172 ; 240, end of n. 
 V. Ships as Common Carrieks, 173-186. 
 
 when a ship is a common carrier, 173, 174. 
 
 when.a carrier by water, and a carrier by land is a common carrier, 173. 
 
 definition of a common carrier, 174. 
 
 applied to a ship, 174. 
 whether a general ship is a common carrier, 174, and n., 175, n. 
 ship's liability as a common carrier modified by bill of lading or other con- 
 tract, 175-177, 177, n. 1, 178, n. 
 when packets common carriers, 175, n. 
 steam tow-boats, when, 176, n. 
 flat-boats, when, 176, n. 
 canal and ferry-boats, when, 176, n. 
 
 limitation of liability by notice, 177, n. 1. 
 notice brought home to party, 177, n. 1. 
 construction of the following phrases in bill of lading : 
 promise to carry goods " safely," 178, n. 
 "dangers of fire," 178, n. 
 • " goods to be receipted for on levee ; not accountable for rust, breakage, 
 leakage, cooperage; weight and contents unknown," 179, n. 
 " perils or dangers of the river, or of the lakes, or of water, or of navi- 
 gation," 179. 
 " dangers of the roads," 179. 
 
 the English exceptions, " The act of God, the king's enemies, fire, and 
 all and every other danger and accident of the seas, rivers, and navi- 
 gation, of whatever nature and kind soever excepted," 180. 
 " an act of God " distinguished from " peril by sea," 180, and n. 182. 
 "an act of God, or the king's enemies," meaning and reason of, 180.
 
 INDEX. 703 
 
 CARRIAGE OF GOOT>S — Continued. 
 
 " the king's enemies" does not include mob, riot, civil commotion, or 
 embezzlement by crew, but docs include pirates, 181. 
 liability continues if vessel wrecked, unless, 181. 
 
 but under U. S. Statute of 1851, 181, n. .5. 
 vessel striking beam at low tide, 181, n. 6. 
 if iron vessel runs on shore from influence on compass, 182, n. 
 common carrier, when responsible for goods burned in his wagon, 182. 
 vessel moored at wharf, destroyed by fire, when owner responsible to shipper 
 
 for loss, 182. 
 exceptions against fire in bill of lading, 182, 
 fire, not an " act of God," 182, n. 2. 
 fire is not a " peril of sea," as between ship-owner and shipper, 182. 
 
 how under Eng. Stat. 26 Geo. 3 and U. S. Stat, of 1851, 183, n. 
 whether these statutes apply to unladen goods, or goods on board of 
 
 lighter, 183, n. 
 designed obstruction of channel, "peril of seas," 183, 184. 
 " dangers of the seas," what it includes, 184. 
 ship-owner not responsible if loss occurs from independent causes, 
 
 though master or owner negligent, 184. 
 where human default cooperates, ship responsible, 185. 
 duty of master, as to stowage, 184, 185, 170. 
 
 if goods badly stowed, and damage results, when responsible, 185. 
 goods on deck, jettisoned, cannot claim contribution in general aver- 
 age, 185. See General Average. 
 if so carried by agreement, shipper must suffer the loss, 185, 186. 
 if without his consent, otherwise, 186. 
 burden of proof of such agreement on ship-owner, 186. 
 if goods stowed on deck, and injury results from other cause, 186, 
 n. 3. 
 
 VI. 187-211. See Collision. 
 
 VII. Damages for Nox-delitert of Goods, or Injury to them, 212-219. 
 
 who entitled to claim damages, consignor or consignee, 212. 
 
 whether master liable to holder of indorsed bill of lading for delivering goods 
 
 to holder of unindorsed bill, 212. 
 whether holder of unindorsed bill also liable, 212. 
 liability of master for delivery to one of two holders of indorsed bills, 212. 
 
 trover by one such consignee against the other, 212. 
 action, when to be brought in consignor's, and when in consignee's name, 
 213. 
 
 if the consignee act as agent of the consignor, 213. 
 if the consignor act as agent of the consignee, 213, n. 
 right of property and possession, criterion, 213, n., 214, n. 
 master should rigidly adhere to stipulations in bill of lading, 214. 
 refusal of shipper to accept goods at port other than that of original destina- 
 tion, 214, 215 ; 164-167. 
 refusal to accept at intermediate port not abandonment, and ship- 
 owner still liable for goods, 215. 
 when master justified in selling goods and accounting for pro- 
 ceeds, 215. 
 if goods arrive at port of destination damaged, whether owner may abandon 
 to master and pay no freight, 215, 216, n.
 
 704 INDEX. 
 
 CAERIAGE OF GOODS— Continued. 
 
 if the cargo remains in specie, 215, 216, n. ; 151, 172. 
 if barrels or boxes amve, but contents disappear, 216, 217. 
 freight of animals, if some die on tlie voyage : 
 if freight to be paid for lading, 217. 
 if for transporting, 217. 
 
 carriage of passengers or animals whether freight, and by what rules 
 governed, 217, 218. 
 provisions in bill of lading, that ship-owner may re-ship goods by another ves- 
 sel, 218. 
 duty of master, 218. 
 if ship does not break ground, 218 ; 128, 167. 
 VIII. The Liability for Freight, 219-228. 
 
 reception of goods, evidence of obligation to pay freight and demurrage, 219. 
 whether legal presumption thence arises, or merely evidence for the 
 
 jury, 219, n. 2. 
 liability of consignee for demurrage, 220, n., 262. 
 liability of consignee, his indorsee or assignee, party not owner, agent, and 
 party to whom another's goods are consigned, for freight, 220. 
 if indorsee of bill of lading obtains goods in another way, 220. 
 if indorsee once liable, continues so, 221. 
 these remarks applicable in absence of charter-party only, 221. 
 
 implied agreement for freight, by delivery and i"eception of goods, 
 221, 253. 
 liability of consignor, when bill of lading stipulates that consignee shall pay 
 
 freight, 221 ; 254, 255. 
 recovery of freight money paid in advance, when voyage not performed, 
 222-224, and n. 
 recovery of passage-money, for breach of contract to caiTy, 223, n. ; 
 
 228. 
 question of fact, to determine intent of parties, 223. 
 authority of master to take freight -money in advance, 224. 
 recovery by consignee of excess above legal freight, paid to obtain goods, 224. 
 reasonable freight, if amount not stipulated, 225. 
 none earned by illegal voyage, 225. 
 
 smuggling or contraband, 225. 
 sailing under license from enemy, 225. 
 violation of foi'eign law does not render illegal, 225: 
 question of freight, as between vendor and vendee of ship with cargo on 
 board, 225, 226. 
 liability of shipper to vendee for freight, 225, 226. 
 liability of vendor to vendee for freight, 225, 226. 
 in whose name suit to be brought, 226, n. 1 ; 138, n. 3. 
 mortgagee not in possession, not entitled to freight, unless, 226. 
 right of captor to freight, 226, 227. 
 
 injury to property by captor, 227. 
 
 if shipper has advanced money on credit of freight, master may 
 claim this as against captor, 227. 
 contract for the carriage of passengers, 227, 228. 
 
 passage-money sometimes master's perquisite, 227. 
 if so, and he dies, rights of his personal representatives and of his 
 heirs, 227, 228.
 
 IXDEX. 705 
 
 CARKIAGE OF GOODS — Continued. 
 
 if passage-money is paid in advance and voyage never begins ; or 
 beginning, is interrupted and not finished, 223, n., 228. 
 CARRIER. See Conimon Canier. 
 CASAREGIS, 13. 
 
 CAVEAT EMPTOR, as applied to sale of ship, 69. 
 
 CERTIFICATE, of registry, change of title to be indorsed upon, 48, 5G, n., 57, n. 
 misrecital of, in bill of sale, 57, n. 
 of builder, 74, 78. 
 CHARTERER. See Charter-Party. 
 CHARTER-PARTY, 229-283. 
 
 I. What constitutes, 229-232. 
 object of, 229. 
 form of, 229. 
 
 not necessarily a written document, 229. 
 avoided by alteration or addition, 229, 230. 
 written, parol not admissible to vary, 230. 
 alteration of, by third party, 230, and n. 
 parol, afterwards reduced to writing, rights of tliird persons not affected 
 
 230. 
 stipulations not inserted considered waived, 230, n. 
 act of 1850, not applicable to, and need not be recorded, 231. 
 sealing of, unnecessary, 231. 
 
 by master or agent, 231, n. 
 agreement for future, how binding, 231, 232, and n. 
 II. General Provisions of, 232-250. 
 
 vessel to be manned and provided by owner, 232, 233. 
 by charterer, 232, 233. 
 
 distinction important as determining whether owner or charterer is in 
 possession, so as to have the rights, and incur the liabilities, of pos- 
 session, 233, 234, n. See post, III. 
 principles which determine such possession, 232-236. 
 if owners have agent on board chartered ship, 234, 235. 
 what holding out of the owners will render them liable, 235. 
 when master is charterer, 235. 
 when part-owner is charterer, 235, 236. 
 
 to master on shares gives him full possession of the ship, 236. 
 division of profits of vessel on shares, 235, 236. 
 liabilities of owners while paying crew and oflScers, 236. 
 how terminated, 237. 
 provisions and stipulations of, 237-240. 
 as to burden of vessel, 237. 
 
 effect, if erroneous or fraudulent, 237, and n. 
 as to national character, 238. 
 
 effect, if erroneous or fraudulent, 238, and n. 
 as to rank of ship, as "A. I.," 238. 
 
 continuance of this warranty, 238. 
 as to condition of ship and repairs, 238. 
 implied, if not expressed, 238. 
 
 of sea-worthiness, not condition precedent ; therefore charter- 
 money payable when, although breacii, 239. See pout, VI. 
 (different from stipulation of sea-worthiness by party obtaining
 
 706 INDEX. 
 
 CHAETER-PARTY— Continued. 
 
 insurance, which is condition precedent to policy attaching, 
 239, n.) 
 indemnity for unseaworthiness, 239. 
 instances of unscawortliiness, 239, n., 240, n. 
 extends to latent defect, 239, n. 
 relates to the particular voyage, 240, n. 
 by reason of injurious articles on board, 240, n. 
 chartered ship, disabled when taking in cargo, 240, n. 
 when and where owner must repair, 240, n. 
 offset by shipper of damages, in suit by owner for freight, 240, n. ; 
 
 172, n. 3. 
 that charterer shall man and victual ship, 239. 
 implied, if not expressed, 239. 
 usual for master to give bills of lading, notwithstanding, 240. 
 
 but they cannot impair ship-owner's rights or lien for full amount 
 
 of freight, although stipulating for less, 240, 241. See 252, n. 2. 
 
 when charterer liable for full amount of charter-money, although ship cannot 
 
 carry full load, 242 ; 158, 159 ; 126-128, and n. 1 ; 166, n. 1. 
 obligations of charterer to trim and ballast vessel, 243. 
 
 of parties respecting assortment and stowing of cargo, 243. 
 overloading vessel, 243. 
 
 goods must be in usual merchantable form, 244. 
 averaging freight in assorted cargo, 244. 
 carriage of goods by charterer for other parties, 244. 
 
 at what rates, 244. 
 no lien for " dead freight," 244 ; 128, n. 
 
 cargo may be paid for by a gross sum, or by the ton, or package, 245. 
 if by ton, nothing less payable for, 245. 
 standard for ton, 245. 
 if by ton, and part or whole of cargo is lost; liability of charterer, 
 
 245. 
 if by a gross sum, and whole cargo not delivered, liability of char- 
 terer, 245, 246, n. 
 right of charterer to take goods of other parties, 246. 
 right and duty of master to take goods of other parties, 246, 247. 
 if master thus earns excess over stipulated freight, which party 
 
 entitled to it, 248, 250. 
 if owner lets part of a chartered ship usually occupied by the crew, 
 249. 
 III. Lien of Chartered Ship on Cargo for the Freight, 250-255. 
 See 122-128, and n., 143-147. 
 question stated : whether owner of ship let upon charter-party has lien on 
 cargo for his freight ; possession of the ship-owner as ground of 
 lien, 250; 233. 
 the case of Hutton v. Bragg, 250. 
 
 the question of possession as ground of lien considered, 250-252. 
 when charterer becomes quasi owner, so that general owner has no 
 
 lien, 251. 
 although charterer is an infant, 251. 
 
 when charterer carrying goods for others, has, as quasi owner, lien 
 for freight, 251.
 
 INDEX. 707 
 
 CHAKTER-PAETY— Continued. 
 
 when payment of freight by shipper to charterer, no defence to action 
 
 by ship-owner, and vice versa, 251, 252. 
 owner's lien extends only to amount due from shipper to charterer, 
 when, 252, and n. 2. See 241, and n. 2. 
 vessel let on shares to master, owner cannot maintain action for freight, 253. 
 
 and not liable for wages of crew, 253. 
 implied obligations of parties to every contract of affreightment, 253; 124, 
 125; 221. 
 stipulations of parties as to lien, 253, 254, and n. 
 delivery of goods without payment of freight ; whether master can fall back 
 on shipper, 254, 255 ; 221, and n. 3. 
 
 IV. The Payment by a Charterer, 256-259. 
 
 if master receives valueless bill or note for freight, revival of claim, 256. 
 master's lien for disbursements and wages, 256. 
 
 payment of freight by shipper to owner, when cuts off master's 
 
 claim on shipper, 256. 
 retention of cargo by master, to satisfy lien, as against purchaser, 
 257. 
 
 retention of part of cargo, 257. 
 voyage out and home ; whether freight payable, if outward cargo delivered, 
 but ship lost on return voyage, 258, 259. 
 whether distinct benefit derived, criterion of distinct voyage, 258, 259. 
 owner's duty to keep ship in repair, 259. 
 
 must take time for this purpose, and charterer pay for this time, 259. 
 duty of charterer, in possession, to repair, and not abandon, 259. 
 duty of charterer not to remove goods, until, 259. 
 
 V. Demurrage and Lay-Days, 260-267. 
 
 ship or cargo not ready at appointed time, each may seek another, 260. 
 
 time, when of the essence of the contract of affreightment, 260, n. 
 master, after waiting reasonable time at foreign port for instructions, may do 
 
 what, 260, 261. 
 owner liable for imreasonably protracting voyage, 261. 
 despatch in loading or unloading, 261. 
 reasonable facilities to be given therefor, 261. 
 nature of demun-age and lay-days, 261. 
 in time charter, no need of, 261. 
 if for voyage, or voyages, 261. 
 
 if ship lost by peril of the sea, during lay-days and before reception 
 of goods, 261. 
 when charterer bound to furnish cargo, 262 ; 248, and n. 1. 
 demuiTage clause in bill of lading, 262 ; 219, n. 3. 
 when lay-days commence, 262. 
 whether delay by compulsion or necessity entitles to demurrage, 263-265. 
 
 delay from capture ; embargo ; quarantine regulations ; the ele- 
 ments, as frost, tempest, or tide ; act of government ; act of con- 
 signee of other portion of cargo ; crowded state of docks ; omis- 
 sion of owner to procure proper papers for discharge ; without 
 fault of either ship-owner or consignee, 263-265 and notes, 
 risk of roads and transportation from dock, upon unlading ; risk of working 
 
 weather, 265. 
 removal of discharged cargo ; speed, 265.
 
 708 INDEX. 
 
 CRARTEn-TAJiTY — Contmued. 
 
 when lay-days begin to count, if delay occurs, 265. 
 "working days," "running days," 265, 266. 
 Stipulations for delay after expiration of lay-days, 266. 
 damages, and rate of payment for delay, after lay-days, 266. 
 charter on time, charterer liable for time lost by what detentions, 266, 267. 
 agreement of charterer as to payment in case of capture and condemnation, 
 267, n. 
 VI. Construction of Charter-Parties, 267-273. 
 question of law ; intention of parties to govern, 267. 
 
 whether covenants in, are conditions precedent ; independent and dependent 
 covenants, 268-272. 
 general principles which determine this question, 268, 269. 
 
 hardships thereof, 272. 
 ship-owner contracting to carry full cargo, sailing with part ; whether 
 
 freight recoverable, 268, 269. 
 stipulations as to sea-worthiness, whether condition precedent and 
 freight recoverable ; damages for breach, 269, and n. 1, 239, and n. 
 waiver of conditions precedent, 270, n., 271. 
 ship made sea-worthy before loss or damage, 270, n. 
 stipulations to sail with first convoy ; to load in season for first con- 
 voy ; to sail with first wind ; to load certain goods ; as to time of 
 being at, or leaving, certain point, 270,«271. 
 mercantile usage as affecting, 272. 
 
 usage only in questions of contract, 273, n. 1 ; 156. 
 express provisions, 272, 273. 
 VII. Dissolution of Ciiarter-Party, or of its Obligations, 273-283. 
 by agreement, 273. 
 by its becoming illegal, 273. 
 
 by breaking out of war, 274. 
 embargo, 274. 
 act of non-intercourse, 274. 
 special prohibition, 274. 
 war annuls : embargo, etc., suspend, 274, 275. 
 
 in latter case, obligation of each party to complete their side of 
 the contract as soon as they can, 274, 275, and n. 
 lowness of water suspends contract, 275, n. 2. 
 
 if restraint likely to continue a long time, or if goods perishable, contract an- 
 nulled, 276. 
 unlawful seizure of vessel by stranger, 277. 
 
 citizens to take notice of blockade, formally notified to nation, 277. 
 blockade de facto and by notification, 277, n. 
 public and private notification of blockade, 277, n. 
 blockade only in intention or by decree, right and duty of ship to enter ; must 
 
 be maintained by sufficient force, 278, and n. 
 what warrants condemnation for breach of blockade, 278, n. 1. 
 ship not bound to incur danger in attempting to break imperfect blockade, 
 278. 
 nor if blockading squadron is driven off by accident, storm, change of 
 
 wind, etc., 278, n. 2. 
 nor if squadron is absent chasing suspicious A'essels, 278, n. 2. 
 if vessel is warned oflT, and returns again, 278.
 
 INDEX. 709 
 
 CHARTER-PARTY — Continued. 
 
 if vessel sails for blockaded port, -with hope of finding blockade terminated, 
 or intention of waiting, 279. 
 if vessel sails directly for blockaded port ; American ship sailing to 
 
 English blockaded port, and vice versa, 279, n. 
 whether shipper can require ship-owner to proceed thus to blockaded 
 port, 280. 
 if both parties knew of blockade, when making contract to send sliip to block- 
 aded port, 280. 
 ship and cargo captured and afterward restored to owner; suspension or disso- 
 lution of contract, 280, 281. 
 provisions in charter-party exempting from loss occasioned by peril of sea, 
 281. 
 liability without such provision, 281. 
 
 pleading in action involving question thus occurring, 281, n. 
 . stipulation that voyage shall terminate upon vessel's entering certain port, 282. 
 construction of various phrases in charter-party ; " sailing and departure of 
 vessel ; " questions in regard to, 282. 
 risk " during the voyage " not in force when ship is in port, 282. 
 vessel to proceed with " all convenient speed," 282, 283. 
 if certain ports are " shut," 283. 
 penal clause in charter-party, whether damages limited to, 283. 
 VIII. Ix OTHER Respects : 
 
 whether charterer may accept bottomry bond, 428. 
 
 jn-o rata compensation recoverable for carriage of goods covered by, when, 
 168, and n. 1 ; 239 ; 268. 
 CHATTEL. See Personal Propertij. 
 CHRONOMETER, whether appurtenant to ship, 73, n. 
 CIVIL LAW, conformity of, to modern law, 7. 
 
 value of, 7, 8 ; 5. 
 CLEIRAC, 12. 
 
 CODES, principal foreign, treating of shipping, 3-17. 
 COKE, 5. 
 COLLISION, 187-211. 
 
 the party in fault suffers, 187. 
 
 if neither in fault, loss rests where it falls, 187. 
 
 injury by vessel doing salvage services, generally considered unavoid- 
 able, 187, n. 2. 
 if both in fiuilt, loss rests where it falls at common law, 188. 
 not so in admiralty, 189. 
 except when both are wilfully in fault, 189. 
 if fault uncertain, loss liow divided, 188, 189. 
 
 when vessel, by no voluntary act of hers, contributed to produce, 190. 
 when vessel in charge of pilot, 190. 
 
 vessel employed by government, not liable for, in England, when, 190. 
 when under dock-master's direction, 190. 
 to what amount ship is answerable in England, 1 90. See also, Master, III. 
 
 in United States, 190. Sec also. Master, III. 
 losses by; not adjusted by principles of general average, 311. 
 if cargo injured by, tln-ough fault of master, shipper entitled to damages,, 
 when, 190, 191. 
 caused by irresistible force of tide or storm, 190. 
 
 VOL. I. 60
 
 710 INDEX. 
 
 COLLISION— Continued. 
 
 wliolly through fault of another vessel, whether bill of lading, or not, 
 
 190, 191, 198. 
 when neither party at fault, if no bill of lading is given, 191. 
 as between underwriter and owner of ship, who liable for loss in case of, 191. 
 whether sueh owner responsible to shipper of goods, 191. 
 when one vessel guilty of some negligence, burden of proof upon her to prove 
 
 that this is not the cause, 191. 
 plaintiff must prove his care, and defendant's want of care, 192. 
 previous precautions, 192. 
 
 when a ship bound to show a light, 192, 193, n., 194, n., and 195, n. 
 statutes of United States as to lights on steamboats, 193, and n. 1. 
 
 as to steamboats and sailing vessels on Northern Lakes, 193, and n. 1 . 
 as to lights on canal-boats and steamboats by Stat, of New York, 194, 195, 
 
 and n. 1. 
 want of such light evidence of negligence, 194. 
 i when sailing vessels should keep watch or look-out on deck, 195, 198, 199, 
 
 n. 1. 
 one vessel going "free," another " closehauled," 195. 
 if both "closehauled," 195. 
 if both going same way, 196. 
 provisions of the merchant shipping act, 17 & 18 Vict, as to vessels passing 
 
 each other, 196, n. 
 steamboats going in the same direction, 197, n. 
 two vessels approaching with wind free, 197. 
 two steamboats approaching each other, 197. 
 steamboats considered vessels with free wind, 198. 
 whether speed excessive, or not, question of fact, 198. 
 what considered in determining it, 198. 
 what not an excuse for excessive speed, 198. 
 swell caused by, and vessel thereby sunk, owners liable, 198; 190. 
 steamer hailed in a fog, to reverse engines and stop, 198. 
 
 same rule when vessel seen, but course doubtful, 198. 
 what is sufficient look-out, 198. See 195. 
 steamer meeting sailing vessel, rule, 199, 200. 
 when vessel closehauled, 199. 
 must on a usual route keep customary track, 200. 
 to avoid sailing vessel drifting with current, 200. 
 between two steamers leaving same slip, both at fault, 200. 
 if one starts first, other to wait, 200. 
 if running in opposition, 200. 
 evidence of racing, to show negligence, 201. 
 raft driven by wind into stream, 201. 
 vessels entering harbor, bound to great cai"e and diligence, 201. 
 
 meeting pilot-boats, bound by rules of navigation, 201. 
 ferry-boat, plying on navigable river, boimd to what, 201. 
 ship at anchor and one in motion, presumption latter at fault, 201. 
 if vessel anchored at improper place, 201. 
 if vessel aground, same presumption, 202. 
 if vessel sunk in navigable river, duty of owner, 202. 
 
 if possession abandoned, for what owner is liable, 202. 
 established rules and known usages to be followed, in general, 202, 203, n.
 
 INDEX. 711 
 
 COLLISION — Continued. 
 
 when deviation from, justifiable, 202, 203, n. 
 disabling ship to render assistance, 203. 
 
 between two American vessels in foreign port, what law to govern, 203. 
 measure of damages in, 204, 20.5, and notes. 
 
 damages for detention of injured vessel while undergoing repair?, 
 
 204, 205, n. 
 sum which vessel would otherwise have earned, 205, n. 
 sum paid to other vessel to complete voyage, 205, n. 
 damages in the nature of demurrage, 206, n. 
 
 how far the insurance rale, one third off, new for old, applies, 205. 
 .when the cause of loss sufficiently near to be responsible ; when too re- 
 mote, 206. , 
 costs in case of, 206. 
 
 general rule in admiralty and common law same, 206. 
 equitable power in admiralty, 206. 
 when damages occur from inevitable accident, 206. 
 lien of injured, upon injuring ship for the damages, 207. 
 
 duration of, 207. 
 when vessel is being towed by steamer, which responsible, 208, 209, n. 
 if vessel is the immediate cause of damage, 208, n. 
 dift'erence between ship towed aside and astern, 208, n., 209, n. 
 rules of evidence in cases of, 209, 210. 
 
 of all persons on board, unless interested, 209, 210. 
 admissions of master, 21,0. 
 
 of mate and crew, 210. 
 effect of action for, at common law, upon jurisdiction of the admiralty, 210. 
 in cases occurring on river forming boundary between two States, which State 
 
 has jurisdiction, 210. 
 if vessel sunk by, whether colliding vessel may raise and tender her back, and 
 claim to pay for partial loss only, 210. 
 owner not bound to take unrepaired, 210. 
 whether when repaired, 210. 
 law of abandonment how applicable to, 210, n. 5. 
 no defence to action for, that injury would not have resulted, if injured vessel 
 
 had been stronger, 211. 
 right of vessel to obstnict navigable stream by warp, 211. 
 
 duty of vessel approaching, and of vessel using warp, 211. 
 statutes regulating the passing of steamljoats, 211. 
 
 usages of river, and local usages relating to this, 211. 
 liability of owners for, 391, 392. 
 COMMERCE, English, early histoiy and growth of, 3-5. 
 
 adaptation of common law and law-merchant to, 3-5. 
 COMMISSION, of master, 379, 380. 
 COMMON CARRIER, ship as, 173-186. See Carnage of Goods, V. 
 
 rights and duties of carrier, as affecting, and affected by, stoppage in transitu. 
 
 See Stoppage in Transitu. 
 by deviating from his undertaking becomes insurer for absolute delivery of 
 
 goods, 124, n. 
 lien of, distinguished from that of ship-owner, 127, n. 
 use of bill of lading by, 134. 
 master acting in capacity of, 434, n.
 
 712 INDEX. 
 
 COMMON LAW, insufficient alone to meet wants of commerce, 3. 
 
 flexibility of, 4. 
 
 how affected by law-merchant, 4. 
 
 superiority of law-merchant over, 5. 
 
 fountains of, 5. 
 CONDEMNATION, by foreigner, when vessel cannot be registered after, 34. 
 CONDITIONS PRECEDENT, in charter-party. See Charter-Partjj, IL, VI. 
 CONDONATION, of desertion, 471, 472. 
 CONGRESS, acts of. See Statutes. 
 
 constitutional powers of, respecting vessels, 48-50, 51, 55, 57, 58. 
 CONSIGNEE. See Carnage of Goods, II. 
 
 whether consignee may accept bottomry bond, 425-428, and n. 
 
 master acting in the capacity of, 434. 
 CONSOLATO DEL MARE, 6, 8, 9. 
 
 CONSTITUTIONALITY, of American statutes regulating shipping. See Congress. 
 CONSUL, as judge in admiralty, 68. 
 
 bottomry bond given by, 387, n. 
 
 taking bottomry bond for services, 418. 
 
 duties of, in regard to seamen discharged in foreign port, 458-460, and n. 
 
 may authoi'ize the discharge of seamen in foreign port for certain causes, 461. 
 
 power and duty of, as to imprisonment of seamen, 467, n. 
 
 duty of, to hear complaint of seamen, and to visit ship for that purpose, 470, 
 n. 1. 
 in case of desertion, 473, n. 
 CONTRABAND SHIP, sale of, 65. 
 CONTRACT, executory to sell, 58, n. 
 
 to sell, distinguished from sale, 75, n. 1, 77, n. 
 CONTRIBUTION. See General Average. 
 
 actions between part-owners for, 105. 
 
 by crew, for embezzlement by one of their number, 468, n. 4. 
 CONVERSION, of ship by one part-owner, remedy, 84, 85, n. 1. 
 CONVEYANCE. See Sale of Ship. 
 
 COOK, may be called upon to do seamen's work, when in port, 448, n. 
 CORDAGE, as appurtenant to ship, 72, n. 
 COSTS, in collision cases, 206. 
 COURT, in admiralty, constitution of, 68. 
 
 sale of ship by order of, 65-69. See Sale of Ship, IV. 
 CREDIT, of ship, when master may borrow on, 59, n. 
 CUSTOM, of merchants, 3-5. 
 
 of loading ship, to govern, 244. 
 CUSTOM-HOUSE, stoppage in transitu of goods lodged in, 351, 352. 
 
 D. 
 
 DAMAGES, rule of, for injury to shippet by deviation, 123, n. 
 measure of, in collision, 190, 204, 205, 206, n. 
 for non-delivery of goods or injury to them, 212-219. See Carriage of Goods, 
 
 VII. 
 by fire, by river, by lake, of water, of navigation, by king's enemies, by act of 
 
 God; construction of phrases excepting, in bills of lading, 173-186. See 
 
 Carriage of Goods, V.
 
 INDEX. 713 
 
 DEAD FEEIGHT, no lien for, 127, n., 128, n., 244. 
 
 DECK, lading of goods on, 124, n., 185, 186, n. 3, 307, 308, 322. 
 
 not to be contributed for, but to contribute, in general average, 185, 186, 307, 
 308, 322. 
 DECREE OF ADMIRALTY, sale under, 65-68. See Sale of Ship, IV. 
 DEFECT, intrinsic, in goods covered by bill of lading, 132-149. See Carriage of 
 
 Goods, II. 
 DEGRADATION, of officers and seamen, 449, 450. 
 DELIVERY, of ship, 78-81. See Sale of Ship, V. 4. 
 
 of goods, 149-158; 254, 255; 335-379. See Cairiage of Goods, III.; and 
 Stoppage in Transitu, 
 DEMURRAGE, 260-267. See Charter-Part i/, V. 
 
 action for, how affected by deviation, 122, n. 
 DESERTION, 470-478. See Seamen, VIII. 
 
 promise of higher wages, upon threat of, void, 448, n. 
 DESPACHEURS, 332. 
 DEVIATION. See Carriage of Goods, I. 
 
 loss occasioned by, effect upon bottomry bond, 409, 410. 
 DISCHARGE, of seamen in foreign port, 458-463. Sec Seamen, VI. 
 DISRATING. See Degradation. 
 
 DISOBEDIENCE, of seamen, 463-470. See Seamen, VII. 
 DOMICIL, of vessel, 492, n. 3, 493, n. See also, Registry and Navigation Laws. 
 DURESS, 440. 
 DUNNAGE, master's duty as to, 378. 
 
 E. 
 
 EAST INDIES, productions of, transported in British vessels, 39. 
 EMBARGO, whether gives ground to claim demurrage, 263, 264. 
 charterer liable for time lost by, 266. 
 suspends contract for carrying goods, 274, 275. 
 detention by, wages and provisions not subject to average, 300. 
 EMBEZZLEMENT, by master or crew, 468. 
 ENROLMENT. See Registry and Navigation Laics. 
 EQUITABLE INTERESTS, disclosure of, to obtain registration or enrolment, 32, 
 
 41, 42, n. 
 EQUITY, jurisdiction of, over bottomry bonds, 440. 
 ERASURE. See Alteration. 
 
 15VIDENCE, of national character, from register, 41, 46. See Registry and Naviga- 
 tion Laics, IV. 
 of ownership, from register, 39, 40-46. See Registry and Navigation Laws, IV. 
 of continuation of ownership, 43, 44. See Registry and Navigation Laws, TV. 
 proof of infractions of registry laws, 38. 
 
 rules of, as applied to the sale of ship, 69-71. See Sale of Ship, V. 
 burden of proof to show how loss or injury to goods shipped under bill of 
 lading occurred, 150, and n. 4, 151. 
 in collision cases, 191, 193, n. 1, 204, n. 1. 
 as to ability of master to obtain a second cargo, when char- 
 terer refuses to take first, 247. 
 of necessity, authorizing bottomry, 418-420. 
 of fraud in procuring bottomry, 419, 420. 
 
 60*
 
 714 INDEX. 
 
 EVIDENCE — Continued. 
 
 on owners to fix fault upon pilot in charge of vessel, in order 
 to relieve tlicmselvcs from liability, 485. 
 rules of, in collision cases, 192, 209, 210. 
 speed of steamer, (juestion of fact, 198. 
 of shi])ping articles, 443. 
 parol, to vary charter-party, 230. 
 
 to contradict bill of lading, 135-137, n. 
 
 to supply omission in, or to vary, shipping articles, 450-452. 
 
 to show false inducements, held out to seamen to sign shipping articles, 
 
 451. 
 to contradict log-book, 474, n. 1. 
 
 F. 
 
 EACTOIi, purchase from, of goods in transit, effect upon consignor's right of stop- 
 page in transitu, 363-365. 
 EAULTS, sale of ship " with all her faults," 69, 70. 
 FEMALE, serving on board ship has rights and disabilities of sailor, 478. 
 EERRY-BOATS, when common carriers, 176, n. 
 
 bound to what rules of navigation, 201. 
 EIRE, accidental, ship-owners liable for damage to goods by, when, 183, n., 406. 
 FISHING, lines and stores, as appurtenant to ships, 72, n. 
 
 voyage on shares, 236. 
 
 master's power to hire seamen, 383, and n. 
 hiring sailors in, upon shares, 477. 
 FITZHERBERT, 5. 
 
 FLAT-BOATS, when common carriers, 176, n. 
 ELETA, 5. 
 
 FLOGGING, of seamen, 463-470. See Seamen, VIE 
 FOREIGNERS, rights of, under registry laws.' Se& Eegistrij and Navigation Lazes; 
 
 Sale of Ship, IV. 
 FOREIGN DECREE, effect of, 65, 66. 
 FOREIGN PORT, agency of master at. See Master. 
 
 authorizing master to make bottomry bond, 411, 412-418. Sec Bottomry and 
 Respondentia, II., C. 
 FOREIGN VESSELS. See Registry and Navigation Laws. 
 
 lien on, of material-men, different from lien on domestic vessels, 492-494. 
 FOREIGN VOYAGE. See Registry and Navigation Laws. 
 FORFEITURE, what subjects to. See Registry and Navigation Laivs. 
 
 effect of, 56, n., 57, n. 
 
 sale of ship for, 65. 
 FORGERY, of ship's papers, forfeiture for, 35, 38. 
 FORWARDING, of goods, 158-173. See Carriage of Goods, IV. 
 FREIGHT. Sec Charter-Party ; Carriage of Goods. 
 
 duty of ship's husband as to, 98, 99, n. 2. 
 
 mortgagee whether entitled to, 45, n. 
 
 carriage of goods on, 121-132. See Carriage of Goods, 1. 
 
 contract for, when entire, so that none earned until voyage is completed, and 
 ship-owner must transport in another vessel if original voyage is broken up, 
 158-173. See Carriage of Goods, IV.
 
 INDEX. 715 
 
 FKEIGHT — Continued. 
 
 pro rata. See Carriage of Goods, III., IV. See Charter-Parfi/, II., IV., VI. 
 
 conditions precedent to action for, 151. 
 
 hypothecation of, 429. 
 
 as determining possession, 234, n. 
 
 what freight is to be paid upon certain goods, for the carriage of which no 
 rates are specified, sent with other goods, to which rates are fixed, 244. 
 
 the rule that goods carried without, not subject to average, 322. 
 
 to be deducted from tlic value of goods contributed for in general average, 327. 
 
 contributory value of, in general average, 328, 329. 
 
 Avhat freight to be contributed for, 329. 
 
 upon stoppage in transitu, vendor to indemnify vendee for, 377. 
 
 master's right to certain portion of, 379. 
 
 limitation of sliip-owner's liability in certain cases to value of ship and freight, 
 395-405. 
 
 the mother of wages, 452. 
 
 portion of, given to sailors as wages, 477. 
 FKAUD, as impeaching sale, 68, n. 4, 70, n. 1. 
 
 of one part-owner against others, 110. 
 
 in obtaining delivery of goods, as affecting lien of ship-owner, 127, n. 
 
 as avoiding bottomry bond. See Bottomry and Respondentia. 
 
 in representations as to burden of vessel, 237. 
 
 of party buying goods from consignee as against consignor, 362. 
 FURNITURE, of ship, what included by term, 71. 
 
 G. 
 
 GENERAL AVERAGE, 284-334. 
 
 I. OraoiN AND Foundation of the Law or General Average, 284-288. 
 general average, particular average, and partial loss, meanings to be carefully 
 discriminated, 284. 
 general average loss falls upon all interests at risk, 284. 
 partial loss rests where it fivlls, 284. 
 
 particular average, generally used as synonymous with partial loss, 284. 
 inaccuracy of such use, 284. 
 
 first, because partial loss gives rise to no average, 284. 
 views of the phrase by different writers, 284, n. 
 secondly, because there may be particular average, 284. 
 when such an average would occur, 285. 
 why such a term more applicable than partial loss, 285. 
 jettison of kegs of money, taken from ship into a boat to be carried on 
 sliore, whether ship and cargo liable, 285, n. 
 law of, rests upon obvious reasons, 286. 
 its antiquity, 286. 
 
 only part of code of Rhodes preserved, 286. 
 to what it owes this distinction, 286. 
 when introduced into English law, 286, n. 
 property jettisoned to save other property, was contributed for by property 
 
 saved, under it, 286. 
 this is foundation of law of, 286. 
 all else rules to carry into effect this principle, 286.
 
 716 INDEX. 
 
 GENERAL AVERAGE — Continued. 
 justice of, obvious, 286. 
 
 some reasons for, drawn from expediency, 286. 
 whose property to be sacrificed, 266. 
 
 difficulty of establishing rules, 287. 
 design and purpose of, 287. 
 
 property sacrificed becomes the property, and the loss of all benefited, 287. 
 what necessary to taking effect of rule, 287. 
 illustration of rule, 287. 
 how the loss apportioned, 287. 
 three essentials : 
 
 first, sacrifice must be A'oluntary, 288, and n. 
 second, must be necessary, 288, and n. 
 thii-d, must be successful, 288, and n. 
 II. Sacrifice sidst be Voluntary, axd for the Benefit of other 
 Property, 288-310. 
 reason for this rule, 288. 
 sacrifice must be voluntary, 289. 
 
 usually occurs by jettison of cargo, 289. 
 
 jettison of masts, sails, and rigging, 289. 
 
 if masts on fire, 289, n. 
 
 when boat cut away from davits, 289. 
 
 if from fault of ship-owner or master, 289. 
 
 of anchor and cable, or either, by cutting the cable, 289, and n., 290, n. 
 
 of loss from vessel anchoring in an unusually dangerous place, to avoid 
 
 a greater peril, 290. 
 whether a voluntary loss, or one from usual wear and tear, 290. 
 why not a voluntary sacrifice, 290. 
 
 if bulwarks, stanchions, bulkheads, or decks cut away, 290. 
 whether stranding voluntary, 290, 291, and n. ; 305, n. 
 if ship must inevitably go ashore, 291. 
 if master has valuable and substantial chance of saving vessel, and 
 
 throws away chance of saving cargo, 291. 
 cases illustrating voluntary stranding, 291. 
 whether contribution, if ship totally lost by stranding, 292, n. 
 ultimate loss of ship, no efi^ect upon liability of ship-owners to contrib- 
 ute, 292, n. 
 accidental stranding and expensive and successful endeavors to save 
 
 property, 292. 
 difficulty of determining when, and to what extent, expenses consti- 
 tute average loss, 293. 
 when ship compelled to go into port, out of her way, for repairs, loss 
 on ship, 293. 
 except where made necessary by injury voluntarily inflicted to 
 
 save property, 293, and n. 
 or where temporary repairs are made, 293. 
 or where excess of expense caused, 293. 
 repairs generally, when the subject of general average, 293, n. 
 expense of paying and maintaining crew while making repairs or seek- 
 ing port to make them, whether average loss, 294-296. 
 in France law not settled, 294, and n. 
 dift'erence of English law from ours, 294.
 
 INDEX. 717 
 
 GENERAL AVERAGE— Contmued. 
 
 in England, if masts cut away to save ship and she changed her 
 
 course, whether, 294. 
 if masts blown away, and under same necessity changed course, 
 
 whether, 294. 
 damages for unavoidable collision, for what expenses contribu- 
 tion allowed, 295, n. 
 damages from tempest, what not allowed, 295, n. 
 upon what ground allowed in the first case, 295, n. 
 the two cases distinguished by Lord Ellenborough, 295, n. 
 distinction doubted, 295, n. 
 if the injury itself is a subject of general average, then wages of 
 
 crew and provisions and other expenses are, 295, n. 
 if crew discharged, and hired as common laborers, wages sub- 
 ject of, 294, 295. 
 in this country, whether loss itself is average or partial, wages 
 
 and provisions subject to average, 295. 
 masts blown or cut away, for benefit of vessel to proceed, 295. 
 from what time wages regarded as an average loss, 296. 
 although direct cost of repairs rests on ship-owner, 296. 
 expense incurred in consequence of a direct peril of the sea, 296, n. 
 v/ages of crew, insured on time policy when vessel stranded on 
 a rock, 296, n. 
 when ship purposely run ashore, 296, n. 
 English rule in South Carolina, 296, n. 
 
 when the owner received his goods at an intermediate port, pay- 
 ing pro rata freight, 296, n. 
 repairs at the port of delivery, 297, n. 
 voyage abandoned from necessity, 297, n. 
 
 other expenses of getting ship into port after meeting a peril, subject to 
 average, 297. 
 towage into port, 297, n. 
 
 when one vessel accompanied another into port, 297, n. 
 expense of taking goods into lighters, 297. 
 when such expense was incurred, when vessel stranded near port of 
 
 delivery, 297. 
 grounds of such decision, 297. 
 upon general grounds how construed, 297. 
 if goods lost or injured while in lighters, subject of, 297. 
 if put in another ship, which was ca])turcd, 297, n. 
 if partly taken out and ship and balance lost, goods in the lighter saved do 
 
 not contribute, 297. 
 so expense of taking out, storing, and returning goods, 298, 314, n. 
 
 same rule in England, 298, n. 
 so if goods damaged in consequence of such removal, 298. 
 when cargo removed for repairs, and necessarily, for its own ])rcservation, and 
 
 part destroyed by fire, 298, n. 
 removal of cargo of perishable fruit which caused decay, 298, n. 
 expense of pumping out ship, scuttling, etc. 298. 
 
 of hiring men to assist crew in getting ship off, that has gone ashore, 298, n. 
 ransom paid bona file, as, part of cargo delivered to pirate, 298, and n. 
 but if pirate or captor make his own selection, 299.
 
 718 
 
 INDEX. 
 
 GENERAL AVERAGE — Confnnml. 
 
 expense of hostage during his detention, 298, n. 
 
 wages, vvlicn ship ransomed by owners, recoverable in full, subject to contri- 
 bution, 299, n. 
 right to take a ransom not founded on a vested title, 299, n. 
 if ransom from pirates, English law same, 299. 
 ransom to an enemy prohibited by English statute, 299. 
 
 if master so ransoms ship, owner not liable to repay what be expended, 
 
 299. 
 nor what he borrowed for that purpose, 299. 
 nor master liable to lender for the debt, 299. 
 delay and detention sulyect of, only when voyage begun, 300. 
 ship detained by embargo, 300. 
 
 delay produced " by the mind and agency of man," 300, n. 
 distinction between capture and embargo, 301, n. 
 origin in the intervention of a vis major, 301, n. 
 construction to be given to contract of affreightment in case of embargo or of 
 
 capture, 301, n. 
 delay by quarantine, 300. 
 while waiting for convoy, 301. 
 from being frozen up during voyage, 301. 
 
 ■nlien expenditure before voyage begins is an average loss, 301. 
 expenses incurred after capture, in defending the property, preventing condemna- 
 tion, obtaining a release, or escaping, are average expenses, 301, 302. 
 of reclaiming and procuring restoration of ship, 302, n. 
 wages and provisions of crew when voluntarily detained, from rational possi- 
 bility of release, 302. 
 thougli there be no release, 302. 
 when funds raised for the common benefit, 302. 
 
 of all losses necessarily incurred in raising the funds, damages, premiums, ex- 
 tra interest, 302. 
 goods sold for such purposes, same as goods jettisoned, 302. 
 sale of part equivalent to hypothecation of the whole, 302, n., 303, n. 
 so if sold to release ship seized for non-payment of "sound dues," 302, n. 
 whether loss be by sacrifice on sea, or shore, 302, n. 
 sold to pay expenses of getting off and repairing vessel driven on shore, 
 
 302, n. 
 sale by master to supply necessities of ship, 302, n. 
 of specie shipped to purchase return cargo, 302, n., 303, n. 
 if goods hypothecated by respondentia are lost, no contribution, 302. 
 
 if saved and applied to payment of bond, whether contribution, 303, 
 and n. 
 expense of forwarding goods, -when shipwrecked, 303. 
 when property sacrificed not at risk, or owned by any one having an interest 
 
 in ship, cargo, or freight, 303. 
 destruction of property to save ship and cargo from fire, while lying at wharf, 
 
 303. 
 sinking a ship next to one on fire to save otiiers, 304, n. 
 injury inflicted upon common property, expense of enforcing claim to be borne 
 
 by all, 304. 
 right to contribution does not extend beyond those voluntarily embarking in 
 common adventiu'e, 304.
 
 INDEX. 719 
 
 GENEEAL AYEU AGE— ContiuiKcl. 
 
 cutting cable to avoid collision, no claim on the other vessel for contribution 
 
 for loss of anchor and cable, 304. 
 what enters into and forms part of sacrifice; unintended direct consequences, 
 
 304. 
 value, how ascertained, 304. 
 
 where corn is damaged by cutting away mast, and getting wet thereby, 304, n. 
 expected and intended consequences, 304, n. 
 burden on owner of cargo to show that damage occasioned, 305, n. 
 damage from water in the prevention of fire occurring without the fault of 
 
 crew, 305, n. 
 loss must be voluntaiy, and intended, and for the benefit of other property, 305-310, 
 whether payment to re-captors voluntary, 305, n. 
 dollars jettisoned to prevent enemy from obtaining them, not for bene- 
 fit of other property, 305. 
 so if sails blown away, or masts, rigging, or cables lost by violence of 
 
 wind or sea, 305. 
 or if sails or spars lost in extraordinary emergency, to escape capture 
 
 or wreck, 305, and n. 
 otherwise if cable cut, anchor lost, or goods jettisoned to escape from 
 
 an enemy, 306. 
 or if boat be lowered, with mast and sail and lantern at masthead, to 
 
 deceive an enemy, and effect escape of ship, 306, n. 
 expense of hiring convoy, or other protection for common benefit, 
 
 306. 
 if vessel compelled to go into port, and another vessel accompanies her 
 
 for common good, 306, n. 
 if cable cut or slipped, to sail with convoy, 306, n. 
 if armed ship attacks a pursuing enemy, and beats her off, loss sus- 
 tained in battle, 306, and n. 
 if masts overboard, and hanging by ship, embarrass and endanger her, 
 
 and are cut away, 306, and 307, n. 
 gratuities to sailors to stimulate them to greater exertion, 307. 
 extra wages, paid through mistake of law, 307 ; 446, 447. 
 goods carried on deck jettisoned, no claim for contribution, 307 ; 446, 
 447. 
 reasons therefor, 307. 
 
 on deck of a propeller, not within rule, 307, n. 
 if placed on deck without consent or knowledge of shipper, he may 
 
 claim whole loss from ship, 308. 
 if so placed by consent of shipper, no claim, and why, 308. 
 if on deck in conformity to an established and well-known usage, 308. 
 if shipper pays full freight, unsettled, 308. 
 why law-merchant would give no claim in such case, 309. 
 usage would give claim on ship, 309. 
 horses carried on deck according to custom, and jettisoned, owner en- 
 titled to contribution, 309, n. 
 copper stowed on deck, as by usage of 40 years, 309, n. 
 carboys of vitriol, 309, n. 
 effect of notice where custom exists, 309, n. 
 as between shipper and ship-owner, 309, n. 
 when underwriters liable where custom exists, 310, n.
 
 720 INDEX. 
 
 GENERAL AVERAGE — Continued. 
 
 owners of vessels collecting contribytoiy shares entitled to commissions, 
 
 310. 
 usage in Boston not allowed to contraA^cne the law-merchant, 310, n. 
 
 III. Some Expenses or Charges usually settled as General Aver- 
 
 age, 310, 312. 
 salv'ilgp so settled, 310. 
 two meanings of this word, 310. 
 
 what is saved from the wreck, 311. 
 
 amount paid to those saving maritime property endangered or aban- 
 doned, 311. 
 such persons called salvors, 311. 
 amount decreed in admiralty, as a certain percentage on property 
 
 saved, 311. 
 may be a gi"Oss sum, 311. 
 usually settled as, and under the name of, 311. 
 damages by collision not so settled, 311. 
 
 expenses arising therefrom may be, 311. 
 "primage and average accustomed," in bills of lading, 311. 
 towa"-e, light money, dockage, wharfage, hire of anchors, cables, and boats, 
 for temporary purposes ; persons to guard ship, quarantine expenses, cut- 
 ting away through the ice, and like expenses, so assessed, 312. 
 
 IV. That the Sacrifice must be justified bt Necessity, 312-314. 
 this is the second essential of general average, 312. 
 
 obviousness of the rule, 312. 
 
 character of sacrifice without necessity ; who responsible, 312. 
 
 character of necessity authorizing jettison, 312, n. 
 
 discretion of master, 312, n. 
 
 jettison, as a precaution against a future, but not impending danger, 313, n. 
 
 where boat runs on a known obstruction or shore, which proper skill might 
 have avoided, jettison then not justifiable, though the only way to get boat 
 off, 313, n. 
 
 jettison caused by unseaworthiness of vessel, 313, n. 
 
 care of law-merchant formerly, against wanton and unnecessary jettison, 313. 
 requiring master to consult with oificers and crew, 313. 
 
 plenaiy power of master, 313. 
 
 rot required to consult crew, 313. 
 
 ci-ew no authority to make a jettison without his order, 313, n. 
 
 master consulting with crew suggests the probability of fraud, 314. 
 
 consultation no proof of necessity of jettison, 314, n. 
 Y. That the Sacrifice must be successful, 314, 315. 
 
 this the third essential, 314. 
 
 obviousness of the rule, 314. 
 
 vessel temporarily saved by sacrifice, 314, n., 320. 
 
 where same peril causes sacrifice, and renders it useless, 314, n. 
 
 when delay or deviation for repairs docs not enable the ship to resume her voy- 
 age, whether wages, provisions, necessary expenses or repairs, constitute a 
 claim for general average, 314. 
 
 how, if expenses incurred with view to decide whether voyage shall be re- 
 sumed, 314, n. 
 
 vessel scuttled to save cargo from fire, and cargo then taken out, 314, n., 298. 
 
 ground of contribution that the vessel may carry cargo to its destination, 315.
 
 INDEX. 721 
 
 GENERAL AVERAGE— Continued. 
 
 if a captui-e, and crew rescue and bring off the ship, whether a contribution, 
 
 315. 
 if portion of cargo rescued with ship and brought liorae to owners, contribu- 
 tion by cargo, 315. 
 what constitutes breaking up of voyage, so as to extinguish claim for contri- 
 bution, 315. 
 questions settled on principles of general average, more properly determined 
 as questions of agency, 315. 
 in such case contribution, though voyage broken up, 315. 
 difference between claim for restitution and for recompense, 315, n. 
 part sacrificed and remainder lost, all lost, 316, n. 
 expenses incurred under an implied obligation of indemnity on all par- 
 ties, 316, n. 
 VI. When the Things sacrificed could not have been saved, 316-318. 
 no claim for conti'ibution in such case, 316. 
 
 reason therefor, 316. 
 claim only where substantial chance of saving ship, 316. 
 
 illustration, 316. 
 goods to be contributed for only at their value at time of sacrifice, 316, n. 
 masts cut away when the rigging and upper spars of a vessel lying at the 
 
 wharf on tire, 317, n. 
 when cargo on fire accidentally, goods injured by water used to extinguish 
 
 fire contributed for, 317, and n. 
 when not the precise thing, but that, or some other, must be lost, 317. 
 Benecke's theory, no sacrifice of a thing, which, by reason of the peril, has 
 
 •ceased to have any value, 317. 
 fallacy of this position ; it rests on mistake or misstatement ; such rule would 
 
 exclude most cases of average, 317, 318. 
 practical application of the rule ; illustration, 317. 
 if thing which could not possibly be saved is destroyed for benefit of others, 
 
 no average, 318. 
 if number of things together sure to perish, unless some one is voluntarily 
 destroyed, none are exposed to inevitable destruction, 318. 
 Vn. Whether the Property in peril and rescued must be saved Br 
 THE Sacrifice, 318, 319. 
 necessity that sacrifice should be effectual to become average loss, 318. 
 reasonableness of a contrary doctrine, 319, and n. 
 whether it must appear that the property was saved by the sacrifice, 318. 
 where vessel drags her anchor, masts are cut away, and suddenly a wind blows 
 
 off shore, 318. 
 difficulty of such a question, and want of uniformity in authorities, 319. 
 weight of authority and reason in favor of contribution for, 319. 
 preference of law-merchant to settle questions by a general rule and avoid 
 
 intricate questions, 319. 
 difficulty of drawing the line where the agency and utility of sacrifice end 
 and other causes of safety begin, 319. 
 
 VIII. COXTRIIJUTION for A GENERAL AvERAGE LoSS, 320-331. 
 
 what property contributes, and on what princii)le, 320. 
 all interests for which sacrifice is made, and wliich are actually saved, 320. 
 if property temporarily saved by a sacrifice, and afterward a part of it is lost,, 
 what contributes, 320; 314, n. 
 VOL. I. 61
 
 722 INDEX. 
 
 GENEKAL AYEUAGY.— Contimml. 
 
 contributory maritime interests are, cither the ship, the cargo, or the freight, 
 
 320. 
 The Ship, no uniformity of practice in regard to contributory value of, 320. 
 ancient rules as to, fallen into disuse, 320. 
 
 contributes for whole value at time to which apportionment refers, 320. 
 what this time is, 320, 321. Sea post, IX. 
 time of loss, 320. 
 time of safe arrival in port, 320. 
 adjustment, where made, 320, n. 
 
 difficulty of applying above principle, as to value, 321. 
 rule founded upon average of cases, 321. 
 one fifth of value at time of sailing deducted, 321. 
 not applied where value can be ascertained more exactly, 321. 
 actual sale of, whether determines contributor)- value, 321. Sec 327. 
 value of, ascertained by best means available, 321. 
 allowance for, and proof of wear and tear, 321, n, 
 impossibility of abating a fixed portion, 321, n. 
 value in a policy of insurance, 321. 
 what must first be deducted from all contributory values, and why, 322. 
 Cargo, what contributes and contributoiy value of, 322. 
 
 if goods would certainly have arrived in a damaged state and with 
 value diminished, such value to be taken, 322. 
 but only where such value is certain, 322. 
 where only a probability of it, what value to be taken, 322. 
 goods on deck if saved by average loss must contribute, 322. See 124, 
 
 n. ; 185, 186, n. 3. 
 goods jettisoned and after\vard recovered; what is to be contributed 
 for, 322, and n. 
 still belong to owner, 322. 
 
 finder acquires no title, but lien for salvage, 322. 
 goods paying no freight pay no average, 322. 
 
 such rule obsolete now, and unreasonable, 322. 
 probable meaning of it, 322. 
 clothing, baggage, and ornaments of passengers do not contribute, 322. 
 otherwise by Eoman law, 322, n. 
 want of reason in such rule, 323. 
 opinion of Emerigon, 323. 
 jewels jettisoned through ignorance, 323. 
 
 when ignorance should make no difference, 323. 
 why full value should not be contributed for, 323. 
 probable application of ancient rale, that only the value which the 
 master might well suppose property to have should be contributed 
 for, 322. 
 jewels and bullion always contribute in proportion to their value, 323. 
 so bank-bills, 323. 
 
 unless not properly actual pi'operty, but evidence of demands 
 and distinguishable from specie, 323, n. 
 bills of exchange saved from wreck not liable for salvage, 324, n. 
 
 nor to contribute in general average, 324, n. 
 government property once exempt from contribution, 324. 
 never in England and not now here, 324.
 
 INDEX. 
 
 723 
 
 GENERAL AVERAGE — Continued. 
 
 provisions, unless a part of cargo, exempt, 324. 
 shipped for convicts, 324, n. 
 if supplied by ship-owner for crew or passengers ; if by shipper 
 
 for passengers, or animals transported by him; distinction, 
 
 324, n. 
 slaves formerly contributed for, according to value, 324. 
 not if accompanying master as domestics, 324, n. 
 jettison of them not now sanctioned, 324. 
 by the civil law thintjs, not merchandise, 324, n. 
 yet if saved as property, held to contribute, 324. 
 passenger or crew not called upon to contribute for personal safety, 
 
 324. 
 nor wages of manner, 325. 
 exception of ransom from a pirate, no foundation in practice 
 
 or reason, 325. 
 only property endangered called to contribute, 325. 
 expense incurred for a particular interest, without benefiting the rest, to 
 
 be charged to that interest alone, 325. 
 capture of neutral ship solely on account of cargo, 325, n. 
 if part of the cargo is separated from the common peril, and 
 
 placed in safety, and a sacrifice or expense to save the re- 
 mainder is afterwards incurred, what contributes, 325, 326, n. 
 cargo gradually saved, parcel by parcel, by continuous efforts, 
 
 causing continuous expense, when all should contribute, 325. 
 conflict of authorities, 325, n., 326, n. 
 cargo not to be charged with any expenses incurred with respect 
 
 to it, after voyage broken up and abandoned, 326, n. 
 services or expenditures for care of cargo after connection with 
 
 vessel for purposes of the voyage ceased, 326, n. 
 how contributory value of goods estimated, 326. 
 want of uniformity of practice, 326. 
 convenient and reasonaBle rule to take the net proceeds of the 
 
 goods at the place of adjustment if actually sold there, or their 
 
 net value for sale as estimated, 326, 327. 
 goods damaged and sold while in port, 327, n. 
 by such rule, shipper sometimes makes a profit and sometimes 
 
 loses, 327. 
 these consequences to be set off against each other, 327. 
 actual sale at port of adjustment as determining the value of the 
 
 goods, 327. See 321. 
 sale at an intermediate port for a higher price than at port of 
 
 destination, 327, n. 
 freight paid or payable on goods should be deducted, 327. 
 reasons therefor, 327. 
 if vessel arrives at Iiome port, or if WTCcked and goods sent on, 
 
 w^hat general rule, 327, and n. 
 New York rule for determining contributory value of cargo, 
 
 327. 
 Massachusetts rule, 327, and n. 
 when invoice cost of goods, taken as their contributory value, 
 
 328.
 
 724 INDEX. 
 
 GENERAL AVERAGE — Continued. 
 
 old rule, to take the price at port of discharge if half of voyage 
 
 performed, if not, the cost price, 328. 
 if vessel arrives at port of destination what value to be taken, 
 
 328, n. 
 
 if jettison occur near port of departure, 328, n. 
 
 when goods are insured, valuation in the policy generally con- 
 clusive, at home port, 328. 
 profits, under that name do not contribute, 328. 
 
 when and how, in fact, they arc included, 328. 
 Freight, valuation of, not settled by law or practice, 328. 
 only freight earned, pays, 328. 
 
 and if only pro rata freight, that only contributes, 328. 
 
 all necessary expenses for earning it should be deducted, 328. 
 freight lost by jettison of goods, or any sacrifice, to be contributed for, 
 329. 
 
 if ship voluntarily stranded to save cargo and being lost, and 
 unable to carry it on and earn freight, this freight is part of 
 the sacrifice, 329, and n. 
 
 freight lost, not to be contributed for, when voyage broken up 
 not in consequence of voluntary sacrifice, 329. 
 
 when entitled to contribution, the value is the gross freight lost 
 by the sacrifice, 329. 
 
 net freight on goods saved and carried, 329. 
 
 difiiculty of determining M'hat is net freight, 329. 
 
 usually reached by deducting certain part, one third, etc., 
 
 329, and n. 
 
 rule in Massachusetts, 329, n. 
 
 if there is charter-party, and freight is to be paid for the round 
 
 voyage, 329, n. 
 little emban-assment in practice, 329. 
 in most commercial ports, rules sanctioned by usage, 329. 
 an adjustment made at proper place, and according to its law, 
 
 binding upon all parties and interests, 329. 
 freight paid in advance and not to be repaid in any event, not 
 to contribute, 330. 
 master, by civil law, required to collect all the contributions, and hold them 
 for losing parties, 330. 
 same provision in the ordonnance of Louis XIV., 330. 
 doubted by Valin, 330. 
 
 not settled law or usage in England, 330, and n. 
 American practice in conformity to civil law, 330. 
 master agent of all concerned ; has lien on goods for contributions ; duty to 
 
 refuse to deliver them until contributions satisfied, 330, 331. 
 shipper entitled to contribution, and, losing it by neglect of master, owners 
 responsible, 330. 
 sustained by practice, 330. 
 if master parts with the goods without contributory payment, and pays over 
 the contribution to losing party, he has an implied assumpsit against the 
 deliveree of the goods, 331. 
 owner of the goods also liable, 331. 
 
 shipper paying all general average expenses, has right of action against his 
 joint shipper, for his proportion, 331.
 
 INDEX. 725 
 
 GENERAL AYEUAGY.— Contimied. 
 
 in charters of East India Company, stipulation that there shall be no claim 
 
 for contribution for general average, 331. 
 such provision unknown in American contracts, 331. 
 JX. Of the Adjustment of General Average Loss, and Contribution, 
 331-334. 
 proper place of adjustment is port of final destination, 331 ; 320, 321. 
 master's power and duty not to deliver any contributory goods, until, 330, 331. 
 rule as stated by Phillips, 331. 
 
 the first port of deli^'cry of any of the interests concerned, 332. 
 adjustments usually made by those who make it a special business, 332. 
 by desjiacheiirs on the continent, 332. 
 in this country b}' insurance brokers, 332. 
 if made at the proper place, binding on all interests embraced in it, 332. 
 shipper assents to general average as a maritime usage, 332, n. 
 
 such assent implies assent to adjustment at the usual and proper place, 
 and according to the law and usage of that place, 332, n. 
 no exception to above rule of adjustment, as regards original owners, 332. 
 adjustment made on protest and representations of the master does not pre- 
 clude the owner from showing negligence or want of skill, and therefore no 
 contribution, 332, n. 
 adjustment at foreign port whether binding on insurers, 332, and n. 
 law of average same whether property insured or not, 333. 
 remedies of party entitled to contribution against subjects liable to contribute, 
 
 333. 
 rights of ship-owner, 333. 
 
 lien of master to enforce contribution, and suit by him, 333, 334; 330. 
 lien whether enforceable in admiralty, 333. 
 no exceptions in favor of the U. S., 333. 
 fonner practice for owner to bring. action in rem against goods bound, 
 
 333. 
 whether such action will lie, of lien, 333. 
 action in personam, for contribution, 334, n. 
 
 libel in rem maintainable against vessel in admiralty by shipper entitled 
 to contribution, 334. 
 • assumpsit, l)y master, against each shipper, 334. 
 
 bill in equity by ship-owners, 334. 
 X. Ix other Respects. 
 
 jettisoned goods on deck cannot claim general average, 185. 
 upon bottomry bond, 422. 
 
 contribution upon pledge by respondentia, on sale of portion of cargo, 438. 
 GLANVILLE, 5. 
 
 GOLD, limitation of can-ier's liability for loss of, 404, 405. 
 GOVERNMENT. See United States. 
 
 ship, lien on of material-men, 501. 
 
 H. 
 
 HISTORY AND ORIGIN OF THE LAW OF SIIIPRING, 3-24. 
 I. Principal Foreign Codes and Writers, 3-17. 
 
 English commerce slight during growth of common law, 3. 
 
 61*
 
 726 INDEX. 
 
 HISTORY AND ORIGIN OF THE LAW OF SHIFTING — Continued. 
 therefore common law does not meet exigencies of commerce, 3. 
 usages of merchants early taken as gnides, 3. 
 law-merchant sprung from these usages, 4. 
 
 flexibility of common law, 4. > 
 
 law-merchant became part of it, 4. 
 and exerted reciprocal influence upon it, 4. 
 wherein mercantile usage has modified common law, 4. 
 meaning of term "custom of merchants," 4, 5. 
 fountains of the common law, — Statham, Fit^herbert, Glanvillc, Brooke, 
 
 Bracton, Fleta, Britton, Rolle, Sheppard, Coke, — the Reports, 5. 
 the law-merchant founded in much greater antiquity, 5, 6. 
 advantages and superiority of the law-merchant over the common law, 5. 
 a universal law, 5. 
 more equitable, 5. 
 fountains of the law-merchant, — the books of the civil law, Consolato del 
 Mare, Laws of Oberon, Laws of Wisbuy, Le Guidon, Marine Ordonnance 
 of Louis XIV., Valin, Pothier, 6. 
 origin of negotiable paper and insurance, 6. 
 antiquity of the law of shipping, 6. 
 Rhodian laws, 6, 7. 
 Vinnius, 6. 
 
 rubrics of the civil law, provisions of, and conformity to modern law, 7. 
 study and value of tlie civil law, 7, 8 ; 5. 
 the Consolato del INIare, 8, 9. 
 the Laws of Oleron, 9, 10. 
 the Laws of Wisbuy, 10. 
 
 the clause of the Laws of Wisbuy relating to insurance, 10. 
 Le Guidon, 11. 
 
 the Ordonnance of Louis XIV., 11. 
 Valin's Commentary, 11. 
 Cleirac, Roccus, Casaregis, Pothier, 12-14. 
 
 Lord jNIansfield created the English commercial jurisprudence, 15, 16. 
 Mr. Justice Story created the American, 16, 17. 
 
 the diff'ercnt admiralty jurisdictions of England and the United 
 States, 16, 17. 
 II. English Adjcdication -which created or defined this Law, 
 18-24. 
 ancient respect for the " customs of merchants," 18. 
 provisions of Magna Charta respecting them, 18. 
 ■whether the courts judicially took notice of them, 18-22. 
 introduction of witnesses to prove them, 19-22 ; 16. 
 whether they applied between all parties or merchants only, 19. 
 
 statutes favoring merchants, 18. 
 by what steps the law-merchant became incorporated into the law of Eng- 
 land, 18-22. 
 part of the jus gentium, 22-24 ; 20. 
 
 importance of this principle, 22-24. 
 importance, hopes, and claims of commerce, 23, 24. 
 HISTORY, of registry laws. See Eec/lstri/ mid Navigation Laws. 
 HOSPITALS, marine hospital fund, 456. 
 HOSTAGE, promise of compensation to sailor for becoming, valid, 449, n.
 
 INDEX. 727 
 
 HOY]VIAN, delivery to, 152, n. 5. 
 
 HYPO THECATION. See Bottomry and Respondentia. 
 
 ILLINOIS, statute of, allowing actions against vessels byname, 107, n. See Pai-t- 
 
 owners, VII. 
 IMPRISONMENT of seamen, 466, 467, and n. 
 INDIANA, statute of, allowing actions against vessels by name, 107, n. See PaH- 
 
 owners, VII. 
 INDOESEMENT, of bill of lading, 1.38, 141, n. 2, 359. See Carriage of Goods, II. 
 
 of dock warrants, 344, n. 
 
 of bottomry bond, 440. 
 INFANT, shipment, desertion, and wages of, 473, n. 1. 
 INSOLVENCY, of one part-owner, rights of the other, 95, 96. 
 
 what insolvency gives the right of stoppage in transitu, 369-373. See Stop- 
 page in Transitu, V. 
 INSTALMENTS, sale of ship to be paid for by, 74-78. See Sale of Ship, V. 3. 
 INSURANCE, origin of, 6. 
 
 different insurers Viahle pro rata, when, 93. 
 
 ship's husband, no power to effect, 98. 
 
 ceases upon deviation, 123, n. 
 
 of cargo, how far it covers excess of freight caused by transshipment, 161, n. 1. 
 
 liability of insurers for loss arising from collision, 191. 
 
 party obtaining insurance upon, but having no other interest in, materials 
 furnished, has no claim as material-man, 495, 496. 
 INTEREST, maritime. See Bottomry and Respondentia. 
 
 on bottomry bonds. See Bottomry and Respondentia. 
 
 upon maritime interest, 439, and n. 
 INTERLINEATION. See Alteration. 
 INTERPLEADER, under Missouri statute, 108, n. 
 " INTRINSIC DEFECT," in goods covered by bill of lading. Seer Carriage of 
 
 Goods, II. 
 IRONS, punishment by. See Seamen, VII. 
 
 JETTISON. See General Average. 
 
 JEWELS, contributory value of, in general average, 323. 
 
 limitation of carrier's liability for loss of, 405. 
 JOINDER. See Actions. 
 JOINT-TENANTS. Sec Tenants In Common. 
 
 JURISDICTION, admiralty, English how differs from American, 16, 17. 
 JUS AD REM, 335-338. ' 
 JUS IN RE, 335-338. 
 
 K. 
 
 KEEL, conveyance of, 77, n. 
 
 KENTLEDGE, whether part of sliip's furniture, 71, n. 3. 
 
 " KING'S ENEMIES," exception of damage by, in biU of lading, 180-183.
 
 728 INDEX. 
 
 LACHES, of purchaser, in takinf; possession, 78-81. See Sale of Ship, V. 4. 
 LAY DAYS, 260-2G7. Sec Charter- Party, V. 
 LAW-MERCHANT, origin and nature of, 3-6. 
 
 superiority of, to common law, 5. 
 
 antiquity of, 5, 6. 
 
 universality of, 5. ' 
 
 LE GUIDON, 6, 11. 
 
 LICENSE. See Rcfjistry and Navigation Laws. 
 LIEN. See Stoppage in Transitu. 
 
 sale of ship to satisfy, 65, 107, n., 109, n. 
 
 of builder, 75, 78, n. 
 
 of part-owners and partners. See Part-Owners. 
 
 of ship's husband, 99, 100. 
 
 under Ohio statute allowing actions against vessel by name, 106, n. 
 
 under Michigan statute, 107, n. 
 
 under Indiana statute, 107, n. 
 
 under Illinois statute, 107, n. 
 
 under Missouri statute, 107, n. 
 
 for services under Missouri statute, 108, n. 
 
 effect of sale under Missouri statute to divest other liens, 109, n. 
 
 reciprocal, of ship and cargo. See Carriage of Goods, I. 
 
 of a chartered ship on her cargo for the freight, 250-255. See Cliarter-Party, 
 III. 
 
 at common law, 126, n., 127, n. ; 408. 
 
 of common carrier, 127, n. 
 
 under bill of lading, 143-147. See Carriage of Goods, II. ; 350, 351. See 
 Stoppage in Transitu, III., D. 
 
 by mere deposit of bill of lading, 365. 
 
 for freight, and for right to earn freight, before voyage is completed, see Car- 
 riage of Goods, IV. 
 
 of injured, on injuring, ship, for damages in collision, 207. 
 
 by bottomry and respondentia. See Bottomry and Respondentia. 
 
 of master on ship and freight for his wages, disbursements, and other dues, 
 256, 257 ; 389, 390. 
 
 of master as agent of the parties interested, to enforce contribution in general 
 average, 333. 
 
 of seamen for wages, 452. 
 
 of material-men, 489-502. See Material-Men. 
 
 of party lending money for the use of a foreign ship, 489. 
 LIGHT, duty of ship to show. See Collision. 
 LIGHTER, delivery of goods in, 158. 
 
 charge for delivering goods by, 163, 164. 
 
 if goods on board of, are burned, whether peril of the sea, 183, n. 
 
 service of, whether subject of general average. See General Average. 
 LIMITATION, of owner's liability for acts of master and mariner, 375. 
 LOANS, ship's husband no power to effect, 98, 99, n. 2. 
 LOG-BOOK, entry upon, of desertion, 473, n. 1, 474, n. 1. 
 LOOK-OUT, duty of ship to keep. See Collision. 
 
 master's duty in regard to, when pilot is on board, 483, n. 
 LOUIS XIV., marine ordonnance of, 6, 11.
 
 INDEX. 729 
 
 M. 
 
 MANAGING OWNER, 97-101. See Part-Owner, VI. 
 MANSFIELD, LORD, created English commercial law, 15, 16. 
 MARINE HOSPITAL, funds, 456. 
 MASTER, DUTIES AND POWERS OF, 378-440. 
 
 • I. FODNDATION AND NaTCRE OF THE MaSTER's AUTHORITY, 378-384. 
 
 his peculiarly responsible position, 378. 
 reciprocal obligations of master and owner, 378. 
 competency of, necessary to make ship sea-worthy, 378. 
 duty as to lading goods, 378. 
 
 dunnage and stowage, 378. 
 
 hull of ship, rigging, provisions, and supplies, 378. 
 ship's papers, 378. 
 his own conduct, 378. 
 
 when ship wrecked, in peril, arrested, or captured, 378. 
 "last man to leave the ship," 378. 
 
 custom and usage and the nature of duties best guide of rcriuirements, 379. 
 privileges by usage, varied by bargain, 379. 
 
 of carrying goods for himself or others, 379. 
 certain tonnage, 379. 
 primage and average, 379, and n. 
 whether owners liable to, for all wages and privileges previously stipulated 
 
 for, when they change the voyage, 379, and n. 
 receiving a certain sum as wages and a commission, not allowed to traffic for 
 
 himself, 380. 
 powers, better defined than duties, 380. 
 
 agent for the owners, in all matters fairly within the scope of his appointment, 
 380. 
 but no more authority to bind the owners than any agent to bind jDrin- 
 
 cii)al, 380, n. 
 not the general agent, 380, n. 
 
 authority as agent, defined by law of agency, 380; 417. 
 his agency, founded on necessity, ceases when owner present, 380. 
 not applicable to owner pro hnc vice, in command, 380, n. 
 may sell ship, when sufficient necessity, 380. See also. Stile of Ship, III. 
 no such necessity when owner so near as to give instructions, 381. 
 specially empowered to sell in a particular manner, 381. 
 may do abroad what he cannot at home, 381. 
 
 raise money on bottomry, charter ship, or repair, or supply her 
 
 extremity, 381. 
 but not borrow money to pay for work already done, 381, n. 
 party furnishing necessaries must prove him agent of the owner, 
 381, n. 
 vendee of ship not liable for money previously borrowed to furnisli necessaries 
 
 of ship in foreign port, 382, n. 
 no power to create a lien in foreign port as security for repairs and supplies, 
 
 except by bottomry bond, 382, n. 
 if part-owner, authority to settle claim for demurrage, 382. 
 
 possibly so if not, 382. 
 power, when not determined by place, 382.
 
 730 INDEX. 
 
 MASTER, DUTIES AND POWERS OF — Continued. 
 
 when contnicts by, in home port, bind owner, 382, and n., 383. 
 contracts of affreightment, 382, n. 
 for repairs, 382, n. 
 what is home port, 382, n; 
 power of, to bind owners, must be by contracts relating to the condition, or 
 use and employment of ship, 383. 
 to hire seamen, 383. 
 
 whether this applies to fishing voyages, 383, n. 
 abduction of minor by, owners bound for damages, 383, n. 
 contract by, binding owner, construed at home by laws of place where made, 
 
 383. 
 powers of, as agent of owner, such as the laws of his own country give, 383, 
 
 and n. 
 no power to settle claims not accruing while he is master, 384. 
 contracts in his own name, liability of owner for, 384. 
 
 in such case owner reached by lien on ship, 384. 
 in most cases, when he makes contracts for the ship, is himself responsible, 
 384. 
 as charter-party and bill of lading signed by him, 384. 
 if goods injured on board, through want of skill or wrong-doing of crew, him- 
 self responsible, 384. 
 or if stolen or lost, when, 384. 
 both owner and master carriers of cargo, 384. 
 cannot make any contracts under seal, in foreign port, to bind owners, 384. 
 II. Mastek's Power from Necessity, 385-390. 
 necessity varies in different cases, 385. 
 necessity], what it means, 385. 
 necessity giving master power to setl, 385. 
 must be stringent and positive, 386. 
 giving him power to borrow money and hj-pothecate, 385. 
 what its character, 386. 
 
 giving him power to bind owners for repairs, 385, and n. 
 repairs and supplies must be needful, and reasonable and proper, 385, 
 
 n., 386, and n. 
 must be apparent, for master to have credit to procure them, 385, n. 
 none exists when master has funds of his own, or of owners, 385, n. 
 or when owner knows, or can know, these facts, 385, n. 
 or where master has received freight-money which he has in- 
 vested in adventures, 385, n. 
 master cannot draw, and render owners liable as acceptors on bill of 
 
 exchange, for supplies, 386. 
 necessity which would authorize an implied hypothecation, 386, n. 
 which would authorize the giving of a bond, 386, n. 
 the only reasonable rule for master in, 386, 387. 
 authorizing master to appoint another in his place, 387. 
 the term " what a prudent man would deem necessary," 
 
 387, n. 
 such master may bind owner as original master could, 387. 
 master appointed by charterer binds not only charterer, but ship, 387. 
 charterer may lend money to, for necessities of ship, 387, n. 
 bond given by to them enforced against ship, 387, n.
 
 INDEX. 731 
 
 MASTER, DUTIES AND POWERS OF — Continued. 
 
 appointed abroad by consul, same power, 387. 
 
 may give bottomry bond, 387, n. 
 of steamboat or privateer, similar power, 387. 
 owners of privateer liable for torts committed by, 387, n. 
 
 it seems also for his contracts, 387, n. 
 how contracts within scope of authority, may bo ratified by owners, 388, 
 
 and n. 
 cannot annul, or materially vary contract made by owners, 388. 
 nor bind the owner by a contract neither necessary nor beneficial, 
 
 388. 
 may bind ship, if a custom to cany certain passengers free, or seamen's 
 
 goods, 388, n. 
 liability of master and owner controlled by rule, that a party giving 
 credit to one, when he might to another, cannot afterwai'd resort to 
 the other, 388. 
 contract exclusively with, or exclusively with owner, 388. 
 proof of exclusive credit given to either, 388. 
 • mere entry on books charging cither, doubtful, 389. 
 
 custom to charge vessel "and all concerned in her," 389. 
 or ship " and owners," 389. 
 owner responsible as such, though name not on ship's papers or regis- 
 tered, 389. 
 master's lien on ship and freight, origin of, 389. 
 extent of, 389. 
 
 in England held none on ship, or freight, 389, and n. 
 in America, he has lien on freiglit, but not on ship, for his 
 
 wages or disbursements, 389, 390. 
 but if merely called a master, he has lien on both for wages, 
 
 390, n. 
 on ship when he pays lien and is substituted for lien credi- 
 tors, 390, n. 
 where he used his own money to repair her, in preference to 
 
 borrowing on bottomry, 390, n. 
 if directly responsible for seamen's wages, 390, n. 
 none for general account, 390. 
 has on cargo, for his disbursements, if it belongs to owner 
 
 of ship, 390. 
 if on freight, may detain goods against consignee or shipper, 
 when, 390. 
 
 III. IIOW FAR OWXEK IS LIABLE FOR THE ToRTS OF TUE MASTER, 
 
 391-406. 
 
 generally for his misconduct, negligence, or unskilfulness, 391, n. 
 
 liability measured and existence determined, by law of agency, 391. 
 
 for master's delay in presenting proper manifest, 390. 
 
 but not for his tortious endeavors to prevent owner from obtaining his 
 goods, 391. 
 
 vessel liable in rem for master's wrongfully putting passengers on short allow- 
 ance, 391, n. 
 
 if he neglect to collect freight money for charterers of ship, 391. 
 
 if collision caused by his want of skill, 391. 
 
 but not for wilful collision, 392, and n. Sec 394, and n.
 
 732 
 
 INDEX. 
 
 MASTEE, DUTIES AND POWERS OF — Contmued. 
 for master's embezzlement of j|oocls, 392. 
 but not for goods shipped by his own privilege, 392. 
 
 shijipcd clandestinely, while owner is on board, 392, and notes, 
 for master's tort in smuggling goods, 392, n. 
 for money borrowed by master for his private purposes, 393. 
 owners of privateer, liable for torts of officers and crew, 393. 
 
 but not for their piratical acts, 393, and n. 
 rule making master responsible, 394, and n. 
 usage of port, or of trade important in making him liable, 394. 
 liability dependent on maritime law, 394. 
 
 may be increased by special contract, 394. 
 distinction raised in recent cases, 394. 
 
 for wilful wrong of servant, though done in opposition to owner's 
 • commands, 394. See 392, and n. 
 
 as conductor detaining train in swamp over night, 394, n. 
 and engineer running train over forbidden track and causing colli- 
 sion, 395, n. 
 maxim of respondeat superior, 395, n. 
 
 for master's misbehavior to, or ill-treatment of, passenger, 395, n. 
 for convei-sion of deceased passenger's money, 395, n. 
 for sailing away and leaving passengers, 395, n. 
 if damages paid, remedy against master, 395. 
 
 limitation of owner's responsibility for acts of master and mariners to value of 
 ship and freight, 395-406. 
 ceases by abandonment of them, 395. 
 by civil law : obligations ex contractu and ex delicto, 395, "n. 
 by marine ordonnance of France of 1681, 395, 396. 
 
 whether this applies to contracts made by master within 
 the scope of his authority, 396. 
 in England, by statute, 396. See American Statutes, post. 
 under present statute, 396. 
 no right of abandonment, 396. 
 decisions under, aids to construction of onrs, 396. 
 value of ship and cargo when to be taken into action against owner 
 
 for act of master, 396, 400, 401 ; 403. 
 how such value to be ascertained and what included in, viz. : what 
 freight, with what deductions for bottomry, mortgage, pilotage, tow- 
 age, and seamen's wages, 397, and n. 
 other owners not deprived of benefit of statute by negligence of part- 
 owner on board and in command, 397. 
 part-owner negligent, to what extent answerable, 398. 
 when owners personally liable for costs, 398. 
 owners of a gabbert liable for accidental fire, 398, n. 
 
 Stat. 26 Geo. 3, c. 86, limiting liability for loss by fire, appli- 
 cable to what, 398. 
 measure of liability where there are several claimants, 398. 
 owner may institute proceedings to determine the amount of his lia- 
 bility ; to distribute pro rata and stop further suits, 398. 
 must do what to stay proceedings, 399. 
 costs on judgment obtained, against owner before such proceed- 
 ings, to distribute, 399.
 
 INDEX. 733 
 
 MASTEPw, DUTIES AND POWERS OF — Continued. 
 
 liability being limited by statutes, giving bail when vessel arrested 
 will not increase it, 399. 
 American statutes limiting the owners' responsibility for acts of master and 
 mariners, 399-406. See English Statutes, ante. 
 in Mass. and Maine, 399. 
 no right of abandonment by, 399. 
 that of ]\Iaine construed to give it, 399, and n. 
 whether the Mass. statute applies to contracts of the master made within 
 
 the legitimate scope of his authority, 400, n. 1. 
 time of estimating value of ship and freight, under, 400, n. 1. See 
 
 396, 401, 403. 
 of the United States passed in 1851, 399-406. 
 provisions of, considered, 400-406. 
 by sec. 3, not to exceed value of such owner's interest in .ship and 
 
 freight then pending, 400, 401. 
 by sec. 4, owners of goods to be paid pro rata, if not sufficient to pay 
 
 in full, 401. 
 proceedings specified for determining ai)portionment, 401 . 
 ship-owners may transfer interest to trustees for benefit of shippers, 401 . 
 cpiestions arising respecting construction of tliese sections : first, as to 
 time of estimating valuc.of ship and freiglit, 401 . See 396 ; 400 ; 403. 
 second, whether same rule applies to breach of contract of afireight- 
 
 ment and to collision, 401. 
 third, whether right of abandonment given by sec. 4, corresponds with 
 maritime law, 401. 
 its effect in determining time of estimating value of ship and 
 freight, 402. 
 fourth, whether abandonment is allowed in case of collision, 402. 
 all sections to be construed together, 402. 
 first part of sec. 4 not applicable to case of collision, 402. 
 grounds of such opinion, 402. 
 
 statutes, in derogation of common law, to be strictly construed, 403. 
 limiting liability of ship-owners, subject to same rule, 40.'>. 
 owner liable by common law to full extent of damage, 403. 
 but riglit of action did not accrue at same time in all cases, 403. 
 in cases of tort, when, 403. 
 contract, when, 403. 
 
 contract of aftreightmcnt, when, 403, 404, and n. 
 when goods embezzled, 403. 
 when goods wrongfully sold by master, 403. 
 meaning of the phrases " for such claimants," " an interest in the 
 
 vessel," "freight then pending," in sec. 4 and sec. 2, 403, 404. 
 owner's liability for shipment of precious metals, etc., 404, 405. 
 eff"cct of want of literal compliance witli statute, 405. 
 provisions of English Stat. 17 & 18 Vict, exempting owner from lia- 
 bility for loss of precious metals, unless, 405. 
 what description of box suflicicnt under this statute, 405. 
 owner when not liable for damage from accidental fu-e, 406. 
 U. S. act of 1851 not applicable to vessels used in inland navigation, 
 
 406. 
 the great lakes whether included, 406. 
 
 VOL. I. 62
 
 734 INDEX. 
 
 MASTER, DUTIES AND TOWERS OF — Continued. 
 IV. 406-440. See Bottomry and Respondentia. 
 V. In other Respects : 
 
 change of, indorsed on register, 33. 
 
 citizenship of, 37. 
 
 sale of ship by, 59-65. See Sale of Ship, III. 
 
 ■who is also part-owner, power of other part-owners to dispossess of command 
 
 of ship, 86. 
 liability of, for torts of those under him, 94, 95. 
 power of ship's husband supersedes, 99, n. 2. 
 
 authority of, as to supplies, repairs, and work. 111, 83, n. 1, 124, n. 1. 
 agent both of owner and shipper, in case voyage is broken up, 163. 
 negligence of, in regard to stowage of goods, 1 85. ^ 
 
 evidence of, as to collision, 210. 
 
 power of, to make charter-party or other instiiiment under seal, 231, and n. 
 accommodations of, on board vessel, 232, and n. 
 
 possession of ship, and ownership pro hac vice, by. See Charter-Part)/, II. 
 opinion of, as to ship's capacity, 243. 
 lien of, for wages and disbursements, 256, 257. 
 duty of, as to consultation with crew, 313. 
 duty of, as to settlement of general average contributions, 330. 
 lien of, to enforce contribution in general average, 333. 
 compensation of, for extra labor, 448, n. 
 
 power of, over crew, and agreements with them as to wages, etc. Sec /Sea- 
 men, II. 
 duty and discretion of, as to provisions and allowance. See Seamen, III. 
 duty of, as to sickness of seamen. See Seamen, V. 
 
 as to return of seamen to this country. See Seamen, VI. 
 power of, as to punishment of seamen. See Seamen, VII. 
 
 upon desertion. Sec Seamen, VIII. 
 duties, powers, and liabilities of, when pilot is on board. See Pilots. 
 MATERIAL-MEN AND THEIR LIENS, 489-502. 
 who are, 489. 
 
 as defined by Jacobsen, 489. 
 
 Lord Stowell, 489. 
 those who build, repair, or equip ships, or furnish them with tackle and neces- 
 sary provisions, 489. 
 the question of lien considered, 116, 117. 
 builders of ships and furnishers of supplies to ships, while building, have no 
 
 lien upon them by maritime law, 489, 498. 
 ship broker obtaining crew, has lien for seiwices and for advances for wages, 
 
 489. 
 one lending money for use of foreign ship same privilege as material-men, 489. 
 stevedores no lien in rem for loading vessel, 489. 
 and cannot sue in personam in admiralty, 489. 
 may proceed against remnants in registry, 490. 
 
 one employed to visit ship from time to time, to see to her safety, ventilate 
 her, and try her pumps, cannot sue in admiralty, 490. 
 if employed to navigate ship from one anchorage to another, he can, 
 
 490. 
 employed to scrape bottom of ship, he cannot, 490. 
 no lien on ship for expense of compressing cargo, 490.
 
 INDEX. 735 
 
 MATEEIAL-MEN AND THEIR 'LIE^S— Continued. 
 
 nor for cost of advertising vessel for sea, portage, commissions for procuring 
 
 freight, or lightermen's wages, 490. 
 ship-broker has no lien for drawing contract between owner of horses shipped 
 
 and hostlers to take care of them, 490. 
 nor genera] agent of a steamboat for balance of account for money expended 
 
 for supplies, etc., 490. 
 what is deemed necessary, 490. 
 
 vessel owned in one State, and supplies furnished in another, master no 
 
 authority to give bottomry for, 490, n. 
 necessity authorizing master to impose lieu in one case, and to give 
 
 bond in the other, distinguished, 490, n. 
 vessel owned in New Jersey, and supplies furnished in New York, no 
 
 lien by maritime law, 490, n. 
 a chain cable lent till one is made, vessel liable for both, when, 490, n. 
 water-casks included in materials, 490, n. 
 lien on ship by general maritime and civil law, 490 ; 116, 117. 
 not derived by maritime from civil law, 491, n. 
 
 enforced in admiralty courts in England, till reign of Charles IL, 491. 
 since then, till statute in 1840, confined to pei-son having possession of ship 
 
 for repairs, and enforced simply by law of bailments, except, 491, and n. 
 since statute of 1840 full lien to material-men in England, 491. 
 general maritime law in force in this country, 491. 
 all material-men have lien on ship by our admiralty law, 491. 
 supplies must be necessaiy, and such as could be obtained only on credit 
 
 of ship, 491. 
 proof that owner had no funds or credit, except ship, 491, n. 
 liens given by local law do not depend on same requirement, 491, n. 
 lien or " privilegium " of civil and general maritime law extends to foreign 
 and domestic vessels alike, 492. 
 otherwise in this country, 492, 501. 
 
 none on domestic ship, unless given by State law, 492, 501. 
 if builder or repairer retain possession, common law lien, 492, n. 
 and enforceable in admiralty, 492, n. 
 but gone if possession parted with, 492, n. 
 on foreign ships, not dependent on possession, 492, n. 
 if in a home port, and held out as foreign, 492, n. 
 vessel in enemy's port pretending to be neutral, 492, n. 
 if in a foreign port, and o\\Tiers present, 492, n. 
 each State foreign to the rest, 492, and n. 
 
 what prima facie evidence that vessel belongs to a certain port, 492, n. 
 proof necessary to overcome it, 493, n. 
 how presumption strengthened, 493, n. 
 when enrolment conclusive, 493, n. 
 when doubtful whether a vessel built in Delaware, and brought to 
 
 Philadelphia, considered foreign, 493, n. 
 residence of owners determines whether vessel domestic or not, 
 
 493, n. 
 who considered owner, 493, n. 
 
 when charterer, so as to release vessel, 493, n. 
 when master, though charterer, can bind ship for necessary rcjiairs in 
 foreign port, 493, n.
 
 736 INDEX. 
 
 MATERIAL-MEN AND THEIR LIENS — Continued. 
 
 ship built here for aliens resident al)road, a foreign vessel, and liable 
 for supjilies for first voyage, 493, n. 
 
 ship built in Cleveland for parties resident in Buffalo, N. Y., 493, n. 
 liens given by State statutes against vessels in home port, 493. 
 statutes of the different States, 493, n. 
 similarity of provisions of, 494. 
 lien of builder in New York attaches when, 494. 
 statute does not apply to canal boats, 494. 
 does to a steamboat fitted itp as a theatre, 494. 
 and vessel liable for supplies furnished the theatre, 494. 
 debts for goods furnished not contracted till delivery, 494. 
 agreement to deliver not sufficient, 494. 
 lien lost if creditor suffers vessel to sail, 494. 
 
 but not if upon a trial trip merely, 494. 
 
 nor when she leaves State fraudulently, when not lialile to arrest, 494. 
 lien for repairs on a boat running from New York to Albany under one gen- 
 eral order, 494. 
 
 when every trip a departure within the statute, 494. 
 
 same rule as to coal furnished at different times, under one agreement, 
 
 494, n. 
 
 wood for fuel, in New York, not " supplies," 495. 
 
 in Illinois otherwise, 495. 
 
 in New York within term "stores," 495. 
 lien in Maine, while building, and four days after launched, 495. 
 
 lost, if materials sold on time, and time not elapsed before four days 
 expire, 495. 
 materials must be actually used in construction, 495. 
 
 not. sufficient that they were furnished under representations that they 
 were to be used, 495. 
 
 lien attaches if materials furnished for one vessel, i;gcd in another, 
 
 495, n. 
 
 if some used, and others not, and judgment obtained for amount of 
 whole, 495, n. 
 party furnishing materials must have reference to some particular vessel, 
 
 495, n. 
 
 if the particular vessel not begun to be built, 495, n. 
 
 furnishing generally to ship-builder no lien on any particular vessel, 495, n. 
 
 positive use of materials must be shown, 495, n. 
 
 if only part, material-men must show what part, 495, n. 
 
 materials furnished for two vessels built for same person, no lien on one for 
 whole materials, 495, n. 
 
 tools and other articles used by workmen not embraced in statute, 495. 
 
 no lien for materials or labor furnished to construct moulds of ship, 495, n. 
 
 nor for person procuring insurance on timber purchased for, and used in con- 
 struction of, ship, unless, 496, and n. 
 
 party procuring insurance not a furnisher of materials under the statute, 
 
 496, n. 
 
 liens under the statute of Massachusetts, 496, 497. 
 
 cease at expiration of twenty days after departure, 496. 
 and in all cases after vessel's arrival at a port out of Commonwealth, 
 496.
 
 INDEX. 737 
 
 MATERIAL-5IEN AND THEIR I^IESS— Continued. 
 
 vessel sailing from Newburyport to Boston and obliged to put into 
 
 Portsmouth, N. H., lien lost, 496. • 
 by statute of 1855 given to persons for money due under any contracts 
 
 with owners, 496. 
 "owners" means special, as well as general, 496. 
 one repairing vessel under conti'act with special owner, 496. 
 for repairs done on vessel when in temporary possession of vendee and 
 
 which reverted for breach of contract, 496, n. 
 mode of enforcing ; time of filing petition ; proper mode of serving 
 
 petition, 496, and n. 
 trench made in front of lavmchiug ways to deepen water not a part of 
 them, 497. 
 under statute of Pennsylvania continues till vessel goes to sea, 497. 
 even if owner becomes bankrupt before departure, 497. 
 ship chandler's lien for what, 497. 
 lien for arms where enforced, 497, n. 
 when a Ijarge hired for a steamboat is a material furnished, 497. 
 money loaned to build a ship, when gives lien, 497. 
 if to pay wages, not, 497, n. 
 or for use of the boat generally, 497, n. 
 in Illinois if statute applies, lender must show that necessity existed, 497, n. 
 in Maine paying claim of one who has lien, gives no right to enforce it, 
 497, n. 
 
 nor indorsing note and paying it at maturity, 497, n. 
 goods furnished master to supply lost goods, not " supplies," 497, n. 
 lien for money loaned to enable a person to purchase a vessel, 497, n. 
 lien for goods furnished a master to enable him to purchase wood and other 
 necessaries, 497, n. 
 t under statute of Ohio, whether lien by builder after delivery, 498- 
 in Michigan none for supplies furnished while vessel building, 498. 
 in Missouri when supplies considered ordered by master, 498 
 this lien extends beyond repairs, 498. 
 
 to the alterations and perhaps reconstruction, 498. 
 
 but not to original construction, 498 ; 489. 
 
 shipwright could not sue in rem for his wages in building a ship, 
 
 498, n. 
 whether rigging of a new vessel gives, 498, n. 
 contract for building vessel made with owners residing in another State, 
 
 498, n. 
 when contract to build not of a maritime nature, 498, n. 
 unless statute includes ship-building, 498, 499. 
 given by State statute to persons building vessel whether enforced in 
 
 admiralty, 499, n. 
 services not maritime, 498, n., 499, n. 
 statute liens take precedence of all other claims, 499. 
 
 lien of material-men prefeiTcd to claim of one lending money to build 
 
 the ship, 499, n. 
 lien of material-men enforceable though vessel ordered by court to be 
 
 sold to satisfy a mortgage, 499, n., and 500, n. 
 vessel may be proceeded against, though in the hands of a bona fide pur- 
 chaser, 500, n. 
 
 62*
 
 738 INDEX. 
 
 MATERIAL-MI';N and their I^IEJ^^S— Continued. 
 
 given by maritime law, a permanent and abiding lien, 500, n. 
 
 but against abondjide purchaser without notice must be enforced within 
 
 a reasonable time, 500, n. 
 what will constitute a reasonable time, 500, n. 
 lost by delay, difficulty of reconciling the cases, 500, n. 
 creditor advancing money to a builder on mortgage succeeds to place of 
 
 owner, 500, n. 
 none for laborer employed for general work, or mechanic, 499, 500. 
 whether sub-contractors and day-laborers have, 500, n. 
 
 in Maine person performing labor on a vessel has, 500, n. 
 sub-contractors furnishing supplies doubtful, 500, n. 
 cannot sue and attach the ship, but should sue contractors, 500, n. 
 action against contractor and owner as trustee, 500, n. 
 by Mass. statute of 1855, sub-contractors and day-laborers have lien, 
 500, n. 
 formerly otherwise, 500, n. 
 
 lien of party furnishing supplies to builder of ship in ignorance 
 of her ownership, 500, n. 
 such lien exists in Ohio, 501, n. 
 so in Kentucky unless owner has paid the person who employed the 
 
 sub-contractors, 501, n. 
 but none in New York, Pennsylvania, or Indiana, 501, n. 
 in Missouri when ship-carpenter cannot create lien, 501, n. 
 created by maritime law or statute, enforceable against government ship as 
 
 well as private, 501, and n. 
 or by State statute may be enforced in State court, 501. 
 sometimes in admiralty, 501. 
 twelfth rule of Supreme Court in regard to, 501, n. 
 
 general doctrine of maritime law, giving admiralty jurisdicticm of lien 
 
 created by statutes, subject to this rule, 501, n. 
 lien of wharfinger given by State statute why not enforceable in ad- 
 miralty under this rule, 501, n. 
 admiralty enforces lien on domestic ship, only because statute gives it, 501. 
 
 governed, in applying statute and enforcing lien, by terms of statute 
 
 and not by maritime law, 501, 502. 
 governed in construing the terms by admiralty principles, 502. 
 lien when waived by giving credit on other stipulations, 502. 
 
 if duration of lien is fixed by law, and credit extends beyond time, 
 
 502, n. 
 if credit expire before, question of intention, 502, n. 
 credit given for definite time, lien suspended for the time, 502, n. 
 charging materials to the owner before vessel named or completed, 
 
 502, n. 
 the giving of a note as waiver, 502, n. 
 MEDICINE CHEST, 445, n. 4, 456-458. 
 MERGER, of other debts by bottomry bond, 418. 
 MICHIGAN, statute of, allowing actions against vessels by name, 107, n. See Pa7i- 
 
 Owners, VII. 
 MINOR. See Infant. 
 
 MISSOURI, statute of, allowing actions against vessels by name, 107, n. See PaH- 
 Owners, VII.
 
 INDEX. 739 
 
 MOETGAGE. Sec Sale of Ship. 
 
 rights and liabilities of parties under. See Owners. 
 
 how analogous to hypothecation by bottomry, 118. 
 
 how distinguished from pledge, 118. 
 M0RTGAGE:E, may take out register, 42. 
 
 conflicting claims of, and creditors, under Ohio statute allowing suit against 
 vessel by name, 106, n. 
 
 when responsible as owner. Sec Owners. 
 
 for contracts or torts of mortgagor. See Owners. 
 MORTGAGOR, liabilities of, as owner. See Owner. 
 MUTINY, when ship is uuseaworthy, 455. 
 
 N. 
 
 NAME, of vessel, how to be painted, 32. 
 
 change of, 36. 
 NAVIGATION LAWS. See Regislnj and Navigation Laics. 
 NECESSITY, justifying sale by master, 59-65. See Sale of Ship, III. 
 
 justifying bottomry or respondentia. See Bottomry and Respondentia. 
 
 justifying sacrifice, which entitles to contribution in general average, 312-314. 
 See General Average, IV. 
 
 master's power arising from, 385-390, see Master; 118-120, 406-440, Bot- 
 tomry and Respondentia. 
 NEGLIGENCE. See Collision. 
 
 liability of part-owners to each other for, 95. 
 
 of carrier, 184, n. 1. 
 NEGOTIABILITY, of bill of lading, 138, 141, n. 2, 359. Sec Carriage of Goods, II. 
 
 of dock wai-rants, 344, n. 
 
 of bottomry bonds, 440. 
 NEGOTIABLE PAPER. See Bills of Exchange and Promissory Notes. 
 NOTICE, should be given by purchaser of ship at sea, to master, 79. 
 
 of sale, actual and implied hj registry. See Registry and Navigation Laws. 
 
 between part-owners, 108, n. 
 
 by ship-owner, or master, to consignee, of arrival of goods, 153, 154. 
 
 by consignor, sufficient to stop goods in transitu, 373-377. See Stoppage in 
 Transitu, VI. 
 NOTORIETY, as evidence of ownership, 44. 
 
 O. 
 
 OATH, necessary to registration or enrolment, 32, 38, 39. 
 
 false, forfeiture for, 37. 
 
 taken innocently, 37. 
 
 of master only, enrolment upon, 38, 39, 32. 
 
 of ownership, applies to legal, 41, 42, 32. 
 OHIO, statute of, allowing actions against vessels by name, 106, n., 107, n. Sec PaH- 
 
 Oivners, VII. 
 OLERON, laws of, 6, 9, 10. 
 ORAL SALE. See Sale of Ship. 
 OUTFIT, duties of ship's husband as to, 98.
 
 740 INDEX. 
 
 OWNERS : 
 
 I. Liabilities OF, 111-117. Sec Part-Oiaiers, 111., IV., V. 
 
 for act of, or expenses incurred by, master. See Master. 
 when liable for supplies, repairs, and work. 111. 
 put in against their will, 114. 
 who resist claim for, must prove what. 111. 
 master's authority as to supplies, repairs, and work. 111 ; 87, n. 2. 
 liability of owner pro hac vice, 111. 
 
 when charterer so considered, 111, n. See also, Charter-Parti/. 
 usual principle for determining liability, 111, n. 2. 
 when mortgagee responsible as, 112-116. 
 mortgagee out of possession, whether liable, 113-117. 
 should take possession, when, 112 ; 79, and n. 
 failing to do so, liable for what, 112 ; 79, and n. 
 actual, or apparently actual, possession, 112. 
 whether out of possession, or mortgagor in, liable, 113. 
 if chooses not to take possession, what risk he runs, 113. 
 when protected as if he had possession, what the liability, 113. 
 liability of, for contracts or torts of mortgagor who is also 
 
 master, 115, n. 
 whether liable, depends upon three things, namely, giving of 
 
 credit ; authorizing credit; reception of benefit, 113. 
 
 general principles sustaining these distinctions^ 113, 114. 
 
 if owner retains an unauthorized benefit to his ship, which he cannot 
 
 remove without injury to the ship, 114. 
 if party furnishes supplies, in ignorance of title of party sought to be 
 
 charged, 114. 
 repairs against the will of owner or mortgagee in possession, 114; 87, 
 
 n. 1. • See Part-Owners, III. 
 mortgagee out of possession, not entitled to freight, 115, n. 
 jjarties may make any bargain, as to whom supplies, etc., shall be 
 credited, 116. 
 bargain, how proved or inferred, 1 1 6. 
 lien of material-men, 116, 117. See Material-Men. 
 
 II. Use OF THE Ship BY. See Carriage of Goods ; CoUision. 
 III. In other Respects : 
 
 bottomry bond made by. See Bottomry and Respondentia. 
 
 rights, duties, and liabilities of, upon charter. See Charter-Party. 
 
 liability of, for money borrowed to meet necessity caused by fault of master, 
 
 408, n. 
 if voyage broken up by, effect upon bottomry bond, 409, 410. 
 destruction of vessel by, renders them personally liable upon bottomry bond, 
 
 421. 
 liability of, for repairs on bottomrj' bond, 438, 439, and n. 
 duty of, to keep in repair, 259. 
 
 duty of charterer to repair at owners' expense, 260, n. 
 how far liable for acts occurring when pilot is on board. See Pilots, I. 
 how far liable for torts of pilots. See Pilots, II. 
 liability of, to shippers and others for loss by reason of neglect or refusal to 
 
 take pilot, 487. 
 managing, 97-101. See Part-Owners, VI.
 
 INDEX. 741 
 
 PACKETS, when common carriers, 174, 175, n. 
 PARTIAL LOSS. Sec General Average. 
 PARTICULAR AVERAGE. See General Average. 
 
 PARTNERS, distinct sales of ship by different partner.?, wLicIi is effectual, 80, and 
 81, n. 
 as distinguished from part-owners. Sec Part-Ouiiers. 
 PART-OWNERS, 82-110. See Oivners. 
 
 I. IIow Partnership in Vessels is created, 82-84. 
 by building or purchasing, 82. 
 tenants in common, not joint-tenants, 82, 83, and n. 5. 
 
 remark in Abbott controverted, 82, n. 
 equal shares presumed, 82. 
 
 share of each to be inserted in register or enrolment, 82, n. 2. 
 ship held in partnership, powers and duties of owners, 83. 
 quasi partnership for a voyage or adventure, 83; 96, n., 97, n., 101. 
 ever}- such partner has lien, 83. 
 liable as partner, 83. 
 
 whether such partner may dispose of whole, 83. 
 part-owner cannot, 84. 
 whether all must be parties to bill filed on account of profits, 83. See 103. 
 distinction between partner and part-owner, 84, 87, n. 1, 88. 
 transfer by partner of his interest, 84. 
 transfer by part-owner of his interest, 84. 
 part-ownci-ship presumed until partnership pi'oved, 84. 
 
 II. Powers of Part-Owner, 84-88. 
 
 general rules of co-tenancy apply, 84. 
 
 sale by one, of share of others, void unless authorized or ratified, 84. 
 
 the other inay maintain trover for conversion, 84, 85, n. 1. 
 but not for dispossession, 85. 
 
 the action of case between, 85, n. 1. 
 
 replevin does not lie between, 85. 
 
 whether trespass will lie, 85. 
 
 if the vessel be lost or injured by the negligence or malfeasance of one part- 
 owner in sending ship to sea, whether another can recover damages, 85, n. 1; 
 86. 
 
 power of majority of, to control and employ ship, 86. 
 
 whether may dispossess master who is part-owner, 86. 
 
 implied authoi"ity of part-owner in absence of the others, 86, 87. 
 as to repairs, 87, n. I. Sec also, Owners. 
 
 distinction between authority of ship's husband, and ordinary part-owner, 87, 
 n. 1, 88, n. 
 
 dissent of part-owner to voyage, exempts him from his share of loss, 88. 
 
 liability of part-owner who prevents voyage, 88. 
 
 III. Liauility of Part-owners for Repairs or Supplies, 89-93. 
 
 liable in solido, 89. See also Owners. 
 
 but repairs and supplies must be reasonable and necessary, 89. 
 
 repairs at home port, 90. 
 
 made against part-owner's prohibitions, 90. Sec also, 114. 
 part-owner bound for the whole although he has paid his share, 90.
 
 742 INDEX. 
 
 PART-OWNERS — Continued. 
 
 and though tliis payment made upon express release, 90. 
 
 but if ho paid before due, or received release under seal, otherwise, 90. 
 
 credit given one or more part-owners, 91, 113. 
 
 credit or charge to " ship and owners," 91, and n. 3. 
 
 the recently settled English law on this point, 91, n. 1. 
 
 charge made to one part-owner, presumption of individual credit, 91. 
 
 rebutted by showing others not known, 91, and n. 2. 
 
 if negotiable paper of one, given in payment, be dishonored, others liable, 92. 
 
 negotiable paper absolute payment in Maine and Massachusetts courts of law, 
 
 93. 
 but not in admiralty courts, 93. 
 liability of insurers after accepting abandonment, 93. 
 proportionally ; not in solido, 93. 
 
 IV. Liability of Part-Owners for the Torts of their Employees, 94, 95. 
 
 governed by law of agency, 94. 
 
 when tortious act is that of owner and when of master, 94, 95. 
 
 V. Liability of Part-Owners to each other, 95, 96. 
 
 whether liable for loss occasioned by negligence, 95. 
 liable for loss occasioned by destruction of property, 95. 
 insolvency of one part-owner, rights of the others, 95, 96. 
 
 lien of part-owner on share of insolvent for his indebtedness, 96. 
 distinction between lien of joart-owncrs and partners, 96, n. 
 partnership may exist in cargo and voyage, but part-ownership in vessel, 
 96, n., 97, n. ; 83. 
 VL The Ship's Husband, 97-101. 
 general agent, 97. 
 how appointed, 97, 98. 
 
 distinction between, and ordinary part-owner, 87, n. 1, 88, n. 
 duties of, 98. 
 
 as to outfit and sea-worthiness, 98. 
 ship in port, 98. 
 ship's papers, 98. 
 freight and returns, 98. 
 cannot borrow money, 98, 99, n. 2. 
 
 nor surrender lien for freight, 98, 99, n. 2. 
 nor insure, 98, 99, n. 2. 
 nor purchase cargo, 98. 
 nor delegate his authority, 99. 
 power of, supersedes that of master, 99, n. 2. 
 whether can prosecute action at law, 99. 
 
 whether managing director or owner largely interested, can become, 98, n. 
 has no lien for advances on share, of other part-owners, 99. 
 acting within scope of authority binds other owners, 99. 
 creditor giving credit to ship's husband alone, 99. 
 liability of owners to," for his charges, 100. 
 
 if some ai"e insolvent, 100. 
 lien, and rights of, 100. 
 VII. Liens of Part-Owners, and Actions by and against them, 101-110. 
 general principle on which law of lien rests, 101. 
 part-owners, as such, have no lien, 101, 102. 
 only as copartners, or agents, 101, 102 ; 83, 96, and n., 97, n.
 
 INDEX. 743 
 
 PAKT-OWNERS— Continued. 
 
 exceptions to this rule, 102, n. 
 lien on proceeds ofvoyarje, bj the general principles of a;^ency, 102. 
 admissions and acknowledgments of one do not bind the others, 103. 
 bill in equity between, for adjustment of accounts, 103. See 83. 
 joinder of, in actions for tort, 103, 104. 
 
 in actions on contract, 104. 
 non-joinder and misjoinder, how taken advantage of, 103-105, 106. 
 actions between, for contribution, 105. 
 actions against vessels by name, 106-109. 
 
 in what States may be brought, 106-108. 
 in Arkansas : how party should declare, 106, n. 
 Ohio : statute constitutional, 106, n. 
 
 establishes no lien prior to seizure, 106, n. 
 conflicting claims of mortgagee and creditors, 106, n. 
 in what cases action will lie against vessel, 106, n., 107, n. 
 Michigan : no lien till attachment, 107, n. 
 
 how should declare, 107, n." 
 Indiana : title transferred by sale, under one of several liens, 
 
 107, n, 
 Illinois : appeal from judgment of justice of peace, 107, n. 
 proceedings in rem for wages, 107, n. 
 when lien attaches, 107, n. 
 when to be enforced, 107, n. • 
 
 sale under judgment, how affecting superior or antecedent 
 liens, 107, n. 
 Missouri: expiration of lien, 107, n. 
 
 process not to issue till bond filed, 108, n. 
 dissolution of the attachment, 108, n. 
 continuance of lien, 108, n. 
 what service and return sufHcient, 108, n. 
 justice's execution insufficient to warrant sale, 108, n. 
 appeal from justice, 108, n. 
 
 one part-owner may sue in name of l)oat, on notice, 108, u. 
 part-owner has no lien for services, 108, n. 
 notice between part-owners, 108, n. 
 
 action of trespass in St. Louis Court of Common Pleas, 108, n. 
 interpleader, under the statute, 108, n, 
 for what services action may be sustained, 108, n. 
 contracts of affreightment, 108, n. 
 
 when boat liable, if contracting party in possession is a tres- 
 passer, 108, n. 
 four classes of prefen-ed claims, 109, n. 
 effect of judicial sale to divest other liens, 109, n. 
 cfTect of sale under law of another State, 109, n. 
 affidavit of complaint, what sufficient, 109, n. 
 demand filed must show lien, 109, n. 
 bond in discharge of lien, 109, n. 
 proceedings, if no bond is given, 109, n. 
 •whether such action will be sustained, if tlie cause of action arose in another 
 
 State, 108, 109, and n. 
 frauds of part-owners against each other, 110.
 
 744 
 
 INDEX. 
 
 PART-OWNERS — Conlinued. 
 VIII. In other Respects : 
 citizenship of, 28, 29, 37. 
 
 presence of, eftcct upon master's powers to make bottomry bond, 417. 
 presence of on board sliip, does not increase liability of other owners for acts 
 of master, etc. beyond value of ship and freight, 397, 398. 
 PENAL SUM, in a charter-party, not a limit of liability, 283. 
 PERSONAL PROPERTY, law of, how related to law of shipping, 25. 
 
 rules regulating sale of, how applicable to sale of ship, 69-81. See Sale of 
 Ship, V. 
 PENALTY, not enforced against seamen, 445, n. 4. 
 PILOTS, 479-488. 
 
 I. Who Pilots are, and what their Duties are, 479-484. 
 pilot boats bound to what rules of navigation, 201. 
 formerly two meanings, — sea pilot and coast pilot, 479. 
 pilot for many purposes a mariner, 479. 
 has peculiar duties, 479. 
 office of, regulated by law, 479. 
 
 States ordered by congress to make their own laws as to, 479. 
 vessel going into or out of any water bounding two States may employ pilot 
 
 of either, 479, n. 
 questions arising under, cognizable in State courts, 479. 
 United States courts have concurrent jurisdiction, 479, n., 480, n. 
 State laws entitled to liberal construction, and why, 480, n. 
 constitutional, 480, n. 
 differ somewhat, 480, n. 
 to act as, must be commissioned, 480. 
 
 unauthorized person may guide vessel, but can recover no compensation 
 allowed by law, 480. 
 
 nor any compensation, if he fiilsely pretended to have a commission, 
 
 480. 
 and is liable civilly in damages, and criminally for any losses or inju- 
 ries resulting, 480. 
 pilot should have evidence with him of his authority, and why, 481. 
 difficulty of piloting increases with draft of water, 481. 
 oldest and most experienced, only allowed to pilot largest ships, 481. 
 no vessel bound to take one on board, 481. 
 if one offers, and is ready, vessel must pay pilotage fees, 481. 
 but if he offers and is refused, cannot maintain a claim for work and labor 
 
 done, 481, n. 
 how master must approach pilot ground, 481, n. 
 what constitutes an offer entitling pilot to his fees, 481. 
 
 not necessary to go on board and tender services to master, 481. 
 when hailing vessel sufficient, 481. 
 association of pilots in some ports and for what purposes, 481. 
 in others, each gets what he can, 482. 
 advantage of latter system, 482. 
 
 whether tliose at great distances have same authority, rights, and responsi- 
 bilities, as when nearer port, 482. 
 carried by some coasting steamers, 482. 
 
 absolute and exclusive control while on board in absence of master, and mas- 
 ter not then liable for accident, 482.
 
 INDEX. 745 
 
 PILOTS — Continued. 
 
 his control in presence of master, 482. 
 
 has control as soon as he stands on deck, but not such as wholly to supersede 
 the master, 482. 
 master not liable for wilful injury by pilot, 482, n. 
 but when liable in case of a steamboat colliding, pilot being hired by 
 owners and at wheel, 482, n. 
 master's duty to observe, 482 and 484, n. 
 
 when master may disobey, and dispossess him of his authority, 483. 
 injury caused by negligence of pilot alone, owners not responsible, 483, n. 
 othenvise, if negligence in the master, 483, n., 488, n. 
 duty of pilot to determine when vessel should be brought up, 483, n. 
 to select time and place of coming to anchor, 483, n. 
 
 so when ship taking her berth, time and manner of dropping anchor, 483, n. 
 and manner of catting pi'cparatory to bringing up to take berth, 483, n. 
 in California, held, not his duty to select berth, 483, u. 
 but shall moor the vessel, 483, n. 
 although pilot on board, master's duty to see that good look-out is kept, 
 
 483, n. 
 pilot to direct the course, master to have the management, of ship, 483, n. 
 master's duty to give orders to cut rigging when two vessels entangled, 
 483, n. 
 or send down top-gallant and main-royal yards, 483, n. 
 if pilot remiss in duty, how far, and when, master may interfere, 483, n., 484, n- 
 if pilot leaves deck for a few minutes, and gives command to second mate, and 
 
 collision occurs, partly through fault of officer, ship responsible, 484, n. 
 altering helm, upon being hailed, without exercising Iiis own judgment, own- 
 ers liable, 484, n. 
 suggestions to, by master not an interference with, 484, n. 
 what orders from boatswain or master would be, 484, n. 
 when master liable for pilot's act or default, 484, n. 
 II. How FAR Owners responsible for Torts of Pilot, 4S4-4S8. 
 servant of owner, 484. 
 
 for injuries resulting from default of, why owner I'csponsible, 484. 
 employed by owner, vessel held liable, 485, n. 
 in England, provided by statute owner not liable, 485, n. 
 alone in fault, owners not liable, 485, n. 
 
 neglect in navigation of vessel by, prima facie attributable to him, 485. 
 burden on owners to show tliat pilot was alone in fault, 485. 
 in constant employ of owners for fifteen years, owners held not liable, 485, u. 
 where he has done his duty, but cannot leave the ship by reason of storm, 
 P owners entitled to legal protection his presence gives, 485, n. 
 
 jurisdiction of the high court of admiralty, 48G, n. 
 special provision in regard to, in particular acts, 486, and n. 
 ports of Liverpool and Newcastle, 486. 
 
 collision of two American vessels in Liverpool, held owners not 
 
 liable if pilot on board, 486, n. 
 master to take on board or pay pilotage, 486. 
 whether taken on board I)y such compulsion that owner not liable for his 
 acts, 486. 
 weight of authority in England, 486. 
 conflict of decisions, 486, n. 
 
 VOL. I. 63
 
 746 
 
 INDEX. 
 
 FILOTS— Continued. 
 
 being alone to blame owners not liable, 487, n. 
 in fbis country question unsettled, 486. 
 opinion of Curtis, J., that owners not liable, 487, n. 
 opinions of Geiek and Story, JJ., as to act of Pennsylvania that 
 every vessel shall be obliged to receive a pilot, not compulsorj-, 487, n. 
 in California vessel in charge of a licensed pilot, owner not lial)le for 
 
 injuries through pilot's negligence or misconduct, 487, n. 
 but if master in fault, otherwise, 487, n. 
 ship neglecting to take one offering, owners answerable for the neglect, 487. 
 ship lost by neglect of captors to take pilot ; liability of captors to owners, 
 
 487, n. 
 if none can be obtained, and the most judicious course for master is to go in 
 
 without one, owners not liable, 487, n. 
 pilots themselves answerable for damage by negligence or default, 487. 
 for negligently running into another siiip, 488, n. 
 but not for collision when steering by direction of officer in charge, 
 
 488, n., 483, n. 
 where steamboat hired for towing vessel, and they are attached, 488, n. 
 liable in damages civilly and crimiually for refusing to board a vessel, 
 488, n. 
 pilotage, how contributed for, 312. 
 PLATINA, limitation of carrier's liability for loss of, 404, 405. 
 PLEDGE, of unfinished vessel, 77, n. 
 
 how distinguished from Bottomry, Respondentia, and Mortgage, 118. 
 , not to be made by factor, 363. 
 PORT, of registration, or enrolment, 32. 
 foreign, 415, n. 
 charges, 312. 
 of discharge, 444, n. 
 ports to be Visited in what order, 445. 
 POTHIER, 6, 13. 
 POSSESSION, as evidence 'of ownership, 44. 
 
 of property by the court, to warrant sale, 67, 68. 
 as affecting the question of sale, 58, 78-81. See Sale of Ship, V. 4. 
 what notice of ownership supersedes, 81, n. 
 of part-owner, 81, n. 
 of mortgagor, when of mortgagee, 81, n. 
 
 of mortgagee, as determining his liability as owner. See Owner. 
 of party who mans the vessel, 233. 
 under a charter-party, 233-236. 
 
 constructive of vendor, so as to give right to stop in transitu. See Stoppaget 
 in Transitu, III. 
 PRECIOUS SIETALS, contributory value of, in general average, 323. 
 
 limitation of carrier's liability for loss of, 405. 
 PREFERRED CLAIMS, four classes of, under JMissomi statute, 109, n. 
 PRIMAGE, 311,312, 379. 
 PRINCIPAL AND AGENT. See Agency. 
 PRIVATEER, powers of master of, 387. 
 
 liability of owners of, for the torts and acts of officers and crew, 393. 
 PRIZE. See Forfeiture. 
 
 sale of ship condemned as, 65.
 
 INDEX. 747 
 
 PROFITS, of ship, bill in equity filed on account of, 83. 
 
 contributory value of, in general average, 328. 
 PROOF, burden of. See Evidence. 
 
 PROMISSORY KOTES. See Bills of Exchange and Promissory Notes. 
 PROMOTION, of officers and seamen, 448-450. 
 
 effect of, upon forfeiture of wages, 469. 
 PROVISIONS, 452-454. See Seamen, III. 
 
 as appurtenant to ship, 72, n. 
 
 when average loss. See General Average. 
 PRUDENT UNINSURED OWNER, doctrine of, 62, and n. 
 PUNISHMENT, of seamen, 4G3-470. See Seamen, VII. 
 
 QUARANTINE, whether delay by, gives claim to demurrage, 263, 264. 
 
 detention by, wages and provisions not subject to average, 300, 301. 
 expenses, contribution for, 312. 
 
 R. 
 
 RACING. See Collision. 
 
 RANSOM, whether subject of general average, 298, 299. 
 
 REAL ESTATE, law of, how related to law of shipping, 25, 47. 
 
 RECEIPT, for goods delivered on board ship, its use and effect, 133,, 134. 
 
 bill of lading considered as, 136, n., 137, n., 143, n., 358. 
 
 of seamen, effect of, 446, 447. 
 RECONSTRUCTION, of ship, 72, 73, and n. 1, 74, 75. 
 REGISTRY AND NAVIGATION LAWS, 25-46. 
 I. History of, 25-27. 
 
 law of shipping stands between real law and law of personal property, 25. 
 
 ship personal property, but peculiar, 25, 47. 
 
 English registry and navigation acts, origin and provisions of, 26, 27. 
 
 character and advantages of British vessels, 26. 
 
 restrictions upon foreign vessels, 26, 27. 
 
 American registry acts, 27. 
 11. What Ships may be Registered and what Enrolled, 28-32. 
 
 acts of 1789 and 1792, 28. 
 
 must be built in the United States, 27. 
 
 and owned wholly by citizens resident here, unless, 28, 29 ; 37. 
 
 foreign residence as disqualification for ownership, 29 ; 37. 
 
 statute of 1804, 29. 
 
 transfer of registered ship to foreigner, subjects to forfeiture wlien, 29 ; 36,37. 
 
 statute of 1793 as to enrolment, 29. 
 
 enrolled and licensed ships cannot proceed on a foreign voyage without tak- 
 ing out register, 29, 30. 
 
 subject to forfeiture if they attempt it, 30. 
 
 what constitutes a " foreign voyage," 30. 
 whaling voyage not, 30. 
 whether whale ship should be registered or enrolled, 30, 31. 
 
 vessel under twcntj^ tons may be licensed and need not be enrolled, 31. 
 
 registration of vessels built here belonging to foreigners, 31.
 
 748 . INDEX. 
 
 REGISTRY AND NAVIGATION LAWS — Continued. 
 
 what recital in bill of sale necessary to new registration, 31. Sec also Sale nj 
 
 Ship, I. 
 private acts of .congress, authorizing registration, 31, 32. 
 
 III. How Vessels may be Registered ok Enrolled, 32-.34. 
 
 at what port, 32. 
 
 name to be conspicuously painted on stern, 32. 
 what oaths and certificates necessary, 32 ; 38, 39. 
 the disclosure of equitable interests, 32;. 41, 42, n. 
 mortgagee may take out register, 42. 
 registration bond and provisions of, 32. 
 steamboats, how registered, 33. 
 whale ships, if owned by incorporated company, 33. 
 temporary registration, 33. 
 change of captain, to be indorsed, 33. 
 loss of registCB, 33. 
 
 new register, upon sale of vessel, 33, 37. 
 
 after seizure, capture, or condemnation by, or sale to, a foreigner, vessel can- 
 not be again registered, unless, 34. 
 
 IV. Effect of Registry and Enrolment, 34-4G. 
 
 enrolled vessels must be licensed annually, 34, 35. 
 
 provisions of license, 35. 
 
 forfeiture for forging, or using another ship's license, 35 ; 38. 
 
 penalty for not complying with license, 35. 
 
 expiration and renewal of license, 35. 
 
 change of register for enrolment and vice versa, 35. 
 
 complications of the system, 35. 
 
 simpler method proposed, 35. 
 
 neither registration nor enrolment required, 36, 39. 
 
 disadvantages without, 36. 
 
 registration universal, 36. 
 
 change of vessel's name, hpw authorized, 36. 
 
 sale of enrolled vessel to foreigner subjects to forfeiture, 36, 37. 
 
 but of registered vessel, deprives her of American character only, 36, 37. 
 
 forfeiture for false oath, 37. 
 
 when the property in a forfeited vessel vests in the United States, 37. 
 
 sale by part-owner without registration, 33, 37. 
 
 false oath taken innocently subjects to forfeiture, 37. 
 
 when the master may be an American citizen resident abroad, 37. 
 
 but part-owner may not be, unless, 28, 29, 37. 
 
 forfeiture for fraudulent use of certificate of registry, 38. 
 
 temporary transfer to alien, for purpose of evading law of foreign countiy, 38. 
 
 in case of loss, register to be sent where, 38. 
 
 proof of infractions of registry law, 38. 
 
 enrolment upon oath of master only, 38, 39 ; 32. 
 
 productions of the English possessions in the East Indies may be brought 
 
 here in British vessel, 39. 
 registration wholly voluntary, 33, 39. 
 
 the register not a public, but a private document, 40, 41, 80, 81. 
 how far evidence of national character, as against party obtaining, 41. 
 
 as between third parties, 41, 46. 
 how far evidence of ownership, as against party obtaining, 39; 40-46; 80^ 
 81: 389.
 
 IXDEX. • 749 
 
 REGISTKY AND NAVIGATION LAWS — Continued. 
 as against third parties, .39 ; 40-46; 80, 81. 
 the oath of ownership applies to legal and not equitable ownership, 41, 
 
 42 ; 32. 
 mortgagee may take out register, 42. 
 legal owner may contradict the register by showing cquit:lble title in 
 
 another party, 42, 43. 
 trasts bj' acts of parties, and operation of law, 43. 
 rights under a prior, unrecorded mortgage, agreement for sale, or claim, 
 as against subsequent party holding recorded title, 42, 43. * 
 the registry as evidence of the continuation of ownership, 43, 44 ; 80, 81. 
 under British registry acts conclusive, except, 43. 
 under American acts not conclusive, or exclusive, 33, 34. 
 possession, assertion of ownership, and notoriety, as evidence of own- 
 ership, 44. 
 the register as evidence in favor of parties to it, 39 ; 44-46. 
 V. In other Respects : 
 
 sale, or transfer, of ship, how affected by registration act. See Sale of 
 
 Ship, I., II. 
 registration of builder's certificate, 78. 
 
 share of part-owner to be inserted in register or enrolment, 82, n. 2. 
 whether charter-party must be registered, 231. 
 RELEASE, liability of part-owner in solido, notwithstanding, 90. 
 REPAIRS, cost of, and ability to obtain, criterion of master's power to sell ship, 60, n. 
 61 n. See Sale of Ship, III. 
 however extensive do not change ship, 72, 73, n. 1, 74, 75. 
 authority of one part-owner to procure, 87, n. 1. 
 liability of part-owners for, 89-93. See Part-Oicmers, III. 
 liability of owners for. See Oicmers. 
 duty of owners to keep in repair. Sec Owners. 
 warranty for, in charter-party, 238. 
 
 bottomry bond for. See Bottomry and Respondentia, IV., F. 
 when the subject of general avei-agc. See General Average. 
 authority of master to bind owners for. See Master. 
 REPLEVIN by one part-owner against another, 85. 
 REPRESENTATIONS. See Warrantij. 
 as affecting sale of ship, 69. 
 
 in charter-party, as to burden of ship, 237, and n., 238, n. 
 as to national character, 238. 
 as to standing of ship, as "A 1," 238. 
 of sea-worthiness, 238-240, and n. 
 Jis to repairs, 238, 240, n. 
 RESPONDENTIA. See Bottomry and Respondentia. 
 RETURNS, duty of ship's husband as to, 98, 99, n. 2. 
 
 liens on, 102. 
 RHODIAN LAWS, 6, 7, 286. 
 RIGGING, as appurtenant to ship, 72, n. 
 ROCCUS, 12. 
 ROLLE, 5. 
 
 RUBRICS, of the civil law, 6^ 7. 
 RUDDER, as appurtenant to ship, 72, n. 
 
 63*
 
 750 • INDEX. 
 
 s. 
 
 SAILS, as appurtenant to ship, 72, n. 
 SAILORS. See Seamen. 
 SALE OF SHIP, 47-81. 
 
 I. Sale without Wkiting, 47-55. 
 
 transfers of real and of personal estate compared, 47. 
 
 by English and American registry acts, change of title in the vessels must be 
 • indorsed on certificate of registry ; and the certificate of registry must be 
 recited at length in instrument of sale, 31, 48. 
 ■ English act avoids sale otherwise made, 48, 56, n., and 57, n. 
 American act of 1792 withholds the privileges of American vessels simply, 
 48, 57, n. 
 oral sale valid under this act, 52-55. 
 the want of constitutional power in congress the cause of this difference, 48-50. 
 provisions and eifect of the registration act of 1850, 51, 55. See also fos<, II. 
 its constitutionality, 51, 55. 
 
 independent of statute no bill of sale, or writing, necessary to sale, 51-55, 56, n. 
 transfer without writing does not absolutely avoid national character, and bill 
 of sale may be executed at any time before application for new register, 56, u. 
 effect of forfeiture, 56, 57, n. 
 executory agreement to sell, 57, n. 
 misrecital of certificate in bill of sale, 57, n. 
 transfer by operation of law, not affected by registry acts, 57, n. 
 
 II. Tkaxsfer by Bill of Sale, 56-59. 
 
 grand bill of sale, 56, 57, 76, 77. 
 form of, 57. 
 
 effect of U. S. statute of 1850, upon State statutes, as to the recording of per- 
 sonal property mortgages, 57, 58. See also ante, I. 
 must be recorded at custom-house, where vessel last registered, 59, n. 1 . 
 this act does not apply to charter-parties, 59, n. 1. 
 whether it abolishes State statutes, 59, n. 1. 
 
 ■ lien on vessels for supplies need not be recorded under this statute, 59, 
 n. 1. 
 if ship is at sea when mortgaged, 58. 
 mortgage of goods at sea, 58. 
 
 III. Sale by the Master, 59-65. See Master. 
 
 valid, when justified by necessity, 59. 
 
 no power to sell under several foreign ordinances, 59, n. 
 
 but might borrow on ship's credit, 59, n. 
 
 power not originally recognized in England, 59, n. 
 
 how the present doctrine grew up, 59, n. 
 
 not sufficient that sale be honest and for the benefit of all concerned, 59, n., 
 
 60. 
 there must be a necessity, 59, n. 
 what is a necessity, 60, and n., 386. 
 moral necessity, 60, n. 
 
 cost of, and ability to obtain, repairs, criterion of necessity, 60, n. 
 may sell, if ship is total wreck, 61, n. 
 
 or if cost of rcpairs would exceed value of ship, 61, n. 
 the master's opinion of the necessitj^ 61, n. 
 sale at Bhering's Straits to three sea captains held invalid, 61, n.
 
 INDEX. "^^1 
 
 SALE OF SllW — Continued. 
 
 whether the validity of the sale is to depend on the event of the vessel s 
 
 safety, 61, n. 
 actual danger, creating the necessity, not inconsistent with speedy escape, 6- 
 whether master may sell if prudent owner would have sold, 62. 
 the doctrine of " prudent uninsured owner," 62, and n. 
 whether want of funds will authorize such sale, 63. 
 sale must be of necessity, not of expediency, 64. 
 no distinction between sale on home and foreign shore, 64. 
 duty of master to communicate with owners before selling, 64. 
 if necessity existed, owners bound, 65. 
 IV. Sale under a Decjiee of Admik.vlty, 65-6S. 
 
 when valid and binding, 65. i i ■ i f 
 
 when the courts of the country wlierc the ship belongs will look behmd a tor 
 
 eign decree, 65, 66. 
 sale of sliip condemned as prize, 65. 
 on ground of forfeiture, 65. 
 to pay salvage, 65. 
 
 to pay bottomry bond or satisfy lien, 65. 
 on ground of unseaworthiness, 65, 66. 
 little known here, 66, 67. 
 decree of admiralty in rem binding everywhere, 67. 
 reason of the rule, 67. 
 notice of sale, 67. 
 court must have possession of property sold, 67. 
 
 constructive possession, 67, 68. 
 the court must be regularly constituted, 68. 
 
 its sufficiency inquirable into, 68. , . . 
 
 consixl or party holding a commission in neutral port from his o^vn country 
 
 cannot act as judge for such purpose, 6S. , • , ^ o 
 
 after wreck and abandonment, sale by foreign court conveys good title, 68. 
 may be impeached for fraud, 68, n. 4. 
 
 V. KULES EEGULATING SALE OF CHATTELS HOW APPLICABLE TO SALE OF 
 
 Ship, 69-81. ^ * 
 
 1 Evidence, agency, and warranty, 69-71. 
 ship built for particular purpose, implied wanranty of fitness, 69. 
 the rule of caveat emptor, 69. 
 material representations, 69. 
 
 parol evidence to vary bill of sale, or other written contract, 69, -0, n. 1. 
 fraud vitiating bill of sale, 70, n. 1 . 
 sale of sliip " with all her faults ; " disclosure of faults, 69, 70. 
 
 in Louisiana, 69. 
 representation that ship was l)uilt in a certain year, 70, n. 1. 
 
 that she was copper-fastened, 70, n. 1. 
 if certain representations are made and ship sold " with all her faults," 70, n. 1 . 
 representations as to dimensions and burden, 70, n. 1. 
 2. Tlie appurtenances of a ship, 71-74. „ 
 
 what passes by the words "ship," "ship and appurtenances, apparel, 
 
 "furniture," 71. 
 ballast, 71, n. 3. 
 kentledge, 71, n. 3. 
 boats, rigging, and stores, 72, n.
 
 752 * INDEX. 
 
 SALE OF SHIP — Continued. 
 
 fishing-lines, tackle, and stores, 72, n. 
 
 provisions; "fishing stores," 72, n. 
 
 cable and anchor, 72, n. 
 
 nidder and cordage purchased for ship, 72, n. 
 
 articles purchased for ship, 72, n. 
 
 sails and cordage detached, 72, n. 
 
 meaning of tlie word appurtenances, 72, 73, n. 
 
 furniture, 73, n. 
 different meanings when used in statute and in contract of insurance, 73, n. 
 cai'go not appurtenances, 73, n. 
 chronometer, whether, 73, n. 
 ship remains tlie same, however extensively repaired, and although all old 
 
 materials replaced by new, 72, and 73, n. 1. 
 how if taken in pieces and reconstructed, 74, 75. 
 
 3. Sale of ship by the builder, 74-78. 
 builder first owner, 74. 
 
 English statutes as to builder's certificates, 74. 
 
 builder's certificates, how to be delivered and registered, 78. 
 
 when the property passes, if vendee is to pay by instalments, 74, 75, n. 1. 
 
 instalments payable at fixed times, 74, 76, n. 
 
 with reference to the forwardness of the vessel, 74, 76, n., 77, n. 
 whose loss, if ship to be paid for by instalments is destroyed while build 
 
 ing, 74. 
 if vendee appoints superintendent to take charge of building, 75 and 76, n. 
 distinction between sale, and contract to sell, 75, n. 1, 77, n. 
 conveyance of keel, after it is laid, conveys subsequent additions, 77, n. 
 agreement to pledge unfinished vessel, 77, n. 
 
 whether property passes, cjuestion of construction, and intent, 77, n., 78, n. 
 if property passes when vessel is unfinished, builder has right to complete and 
 
 lien for full price, 75, 78, n. 
 
 4. Possession of the purchaser, 78-81. 
 ship chattel, but peculiar, 78 ; 25. 
 
 y possession of ordinary chattel should accompany sale, 78. Seep. 112, and n. 
 possession of ship may be taken soon as practicable, 78. 
 
 whether at sea (^r elsewhere out. of reach, 81, n. 
 transfer of papers and registry, 78, 79. 
 purchaser may wait vessel's arrival at home port, 79. 
 
 should send notice to master, 79. 
 sale passes not merely inchoate right, but full property liable to be divested by 
 
 laches, 78, 79. 
 importance of this distinction, 79. 
 which of two innocent transferrees holds, 79. 
 
 why vendee must take possession within reasonable time, 79, n. 1, 112, and n. 
 conveyance of vessel by deed, 80, n. 
 actual and symbolical delivery, SO, n. 
 distinct sales by diff"erent partners ; vendee who first obtains possession 
 
 holds, 80 and 81, n. 
 what notice supersedes necessity of taking possession, 81, n. 
 possession of part-owner, 81, n. 
 
 mortgagor when possession of mortgagee, 81, n. 
 eff'ect of custom-house registration of change of ownership, 80, 81 ; 40, 41.
 
 INDEX. 753 
 
 SALE or SUIF — Continued. 
 VI. In other Eespects : 
 
 how affected by registry law. Sec Registrij and Navlijatlon Laws. 
 
 under lien by Indiana statute, 107, n. 
 
 seamen entitled to their wages uj) to time of, 460, n. 
 SALVAGE, sale of ship, to pay, 65. 
 
 settled on a general average loss, 310, 311. 
 
 upon bottomry Ijond, 422. 
 SEAL, charter-party under, 231, and n. 
 
 master's power to make contract under, 384. 
 
 effect of, in admiralty, 447. 
 
 and signature, must be distinct and legible to secure official respect, 460, n. 
 SEAMEN, 441-478. 
 
 I. How Seamex ake regarded ey the Courts, 441, 442. 
 
 peculiarly in need of, and entitled to, protection of courts, 441 . 
 
 reasons therefor, 441. 
 
 wai'ds of admiralty, 441, n. 
 
 their contracts regarded with rigid scrutiny, 441, n. 
 
 and set aside as inequitable, if unjust and unreasonable, 441, n., 446, n. 
 
 statutes in behalf of, 441, 442. 
 
 prohibition against foreign, in our ships, 441. 
 
 applied to subjects and citizens of what countries, 441. 
 
 statute seldom regarded, 442. 
 
 most important points of statutory provisions for, 442. 
 
 fii-st, shipping articles, 442. 
 
 second, wages, 442. 
 
 third, provisions and substance, 442. 
 
 fourth, sea-wortliiness of ship, 442. 
 
 fifth, care of seamen in sickness, 442. 
 
 sixth, bringing them home, 442. 
 
 seventh, regulation of punishment, 442. 
 
 eighth, respecting desertion, and discharge either at the beginning or during 
 the voyage, 442. 
 II. Of the Shipping Articles, and Wages, 442-452. 
 
 every master bound to have, 442. 
 
 penalty for each person not signing, 442. 
 
 must be signed by every seanum, 442. 
 
 must describe accurately voyage, and terms for which seaman shipped, 442. 
 
 general coasting and trading voyage v,'itliin the act, 442, n. 
 
 extends to lakes and inland navigation, 442, n. 
 
 master must produce log-l)Ook and contract when rcipiired, or parol evidence 
 of them may be given, 442, n. 
 
 depositing originals with collector of port, at time of contract, 442, n. 
 
 distinct and reasonable notice if seamen want them, 443, n. 
 
 in absence of statement of seamen in libel, evidence of what, 443, n. 
 
 if owners prove reasonable excuse for not producing, may contradict by parol 
 mariner's statement of contract, 443, n. 
 
 admissible as evidence of what, 443, n. 
 
 against loose and indefinite language in, or unfair and unusual stipulation, 
 courts interfere, 443. 
 
 signed under duress and protest, invalid, 443, n. 
 
 doubt in meaning, seamen benefit of doubt, 443.
 
 754 INDEX. 
 
 SEAMEN — Continued. 
 
 voyage from place to place " and elsewhere," meaning of, 443. 
 
 from Baltimore to Curacoa and elsewhere, does not autliorize voyage to St. 
 Domingo, 443, n. 
 
 void for uncertainty when, 443, n. 
 
 there must be a terminus a quo and ad qucni, 443, n. 
 
 " from London to Batavia in East India seas or elsewhere and until final arrival 
 at any port or ports in Europe," seamen not bound, upon arrival at Cowes, 
 to proceed to Rotterdam, 443, n. 
 
 what authorizes voyage from Gibraltar to South America, 444, n. 
 
 what from Philadelphia to South America, 444, n. 
 
 shipments of seamen contrary to acts of congress void, 444, n. 
 
 what not a compliance with act of 1790, 444, n. 
 
 must be limits of time and space between the fixed termini, 444, n. 
 
 meaning of word " cruise " in, 444, n. 
 
 trading voj'age does not include freighting voyage, 444, n. 
 
 nor whaling voyage a trading voyage to dispose of cargo when obtained, 444, n. 
 
 from the home port to Appalachicola or elsewhere for a market, sufficient de- 
 scription, 444, n. 
 
 meaning of a " port of discharge in the United States," 444, n. 
 
 a port in slave State where colored seamen remain in jail, not, 444, n. 
 
 " wherever freight may offer," how coustrued, 444, n. 
 
 when held not to cover a voyage from West Indies to Boston and back within 
 the period specified, 445, n. 
 
 "from Boston to one or more ports south, thence to one or more ports in 
 Europe and back to a port of discharge in the United States," sufficient 
 description, 445, n. 
 
 if port described in, as being " a final port of discharge," voyage not ended till 
 when, 445, n. 
 
 " and elsewhere " in, usage may give precise meaning to, 443. 
 
 same objection to word "elsewhere" does not apply in a whaling, as in trading 
 or freighting voj'age, 444, n. 
 
 should declare explicitly ports of beginning and termination of voyage, 444. 
 
 if number of ports named, must be visited in what order, 445. 
 
 if by, master is to have discretion, courts will not interfere, 445. 
 
 other stipulations in, sustained or rejected as they seem to be fair or other- 
 wise, 445. 
 
 if contraband goods found in forecastle, that seamen should forfeit wages and 
 £10, 445, n. 
 
 penalty of £10 cannot be enforced, 445, n. 
 
 " to pay for medicine and medical aid further than the medicine chest affords," 
 iuecj[uitable, 445, n. 
 
 that seamen will sue for wages in common law courts, 445, n. 
 
 that all differences between master or owners and crew shall be referred to ar- 
 bitration; demand of wages not a difference, 446, n. 
 
 courts of admiralty in regard to, not confined to rules of common law, 446, n. 
 
 act as courts of equity, 446, n. 
 
 stipulations in, derogating from rights of seamen, will be held void, and why, 
 448, n., 446, n. 
 
 unless, either the cause be fully explained to them, 446, n. 
 
 or additional compensation adequate to restrictions and risk is given, 446, n. 
 
 that seamen might leave ship at end of three months, if in port and safety, 
 and captain sole judge, void, 446, n.
 
 INDEX. 
 
 755 
 
 SEAMEN — Continued. 
 
 should not sue for wages till vessel unladen, binding, if fairly made, 446, n., 
 
 447, n. 
 
 stipulation that in whaling voyage seamen and officers shall receive propor- 
 tionate share, if sick, 446, n. 
 
 stipulation contravening language or policy of statute, void, 446. 
 
 clauses lessening rights of seamen to wages, etc., allowed some force in com- 
 mon law courts, none in admiralty, 446, and n. ; 307. 
 
 in a divided voyage, clause that seamen should be entitled to no part of their 
 wages, if vessel lost before final port of discharge, void, 446, n. 
 
 or unlil the ship arrived at the port of discharge in Philadelphia, 446, n. 
 
 if special agreement fully explained, 447, n. 
 
 that seamen should not demand their wages till expiration of twelve months, 
 447, n. 
 
 agreement to accept half pay, in case the vessel abroad, valid, 447, n. 
 
 admiralty courts give no effect to receipt of sailor for his wages, unless actual 
 pavment, 447. 
 
 a release of all complaint against officers of the vessel, signed in order to get 
 
 his wages, void, 447. 
 if scaled by mariners and not master, whether assumpsit will lie at common 
 
 law against them, 447. 
 seals of no effect in admiralty, 447. 
 stipulation in, as to wages, conclusive, 447. 
 nothing more can be recovered on special promise to pay for severe or extra 
 
 labor, 447, 448. 
 purser's steward receiving a specific salary from the crown, cannot recover 
 
 wages of purser, 447, n. 
 if one ship as cook, at the request of a captain in the navy, can recover above 
 
 government pay by agreement, 448, n. 
 cook performing services, out of the line of his employment, can recover 
 
 additional pay, 448, n. 
 if captain paints his own ship, 448, n. 
 
 master may call on cook to do seaman's work while in port, 448, n. 
 when crew are deceived, and ordered to load guano, they can recover 
 
 extra wages, 448, n. 
 when wages of seamen, sliipped during war, are diminished by declaration of 
 
 peace, 448, n. 
 promise to divide the wages of the deserting crew among those remaining, void, 
 
 448, n. 
 and, if paid in such a case by master, owners might retain tlie amount from 
 
 subsequent wages, 448, n. 
 if vessel becomes so short-handed at intermediate port as to be unseaworthy, 
 
 a note voluntarily given by captain for extra wages, valid, 448, n. 
 captain stipulating for extra pay for himself, in addition to fixed price for the 
 
 vessel, and the government paying all to owner, cannot recover of owner, 
 
 448, n. 
 promise of higher wages to a deserting seaman, void, 448, n. 
 effijct of transfer, to another vessel, of seamen to whom higher wages had been 
 
 promised, 449, n. 
 promise of reward by a passenger not binding, 449, n. 
 if one of crew consents to become a hostage under promise of wages, binding 
 on owners, 449, n.
 
 756 INDEX. 
 
 SEAMEN — Continued. 
 
 if seaman promoted, takes wages of his new office, 448. 
 mate succeeding to master's place on his death, entitled to extra wages, 449, n. 
 whether he may sue in rem, doubtful, 449, n. 
 
 if degraded for incapacity, cannot recover his advanced wages, but only sea- 
 man's wages, 449. 
 master's power to degrade an officer, limited, 449. 
 what he stipulates for, 449, n. 
 if willing but tardy, 449, n. 
 if incompetent, 449, n. 
 steward may be disrated for embezzling stores, 449, n. 
 
 or for acts of dishonesty or habits of intemperance, 449. 
 but not for a single instance, 449, n. 
 power to disrate remedial, not penal, 449. 
 cannot degrade to lowest station, if there is an intermediate one which the 
 
 person is competent to fill, 450. 
 cooper cannot be disrated and ordered to do duty as a foremast hand, 450, n. 
 if an officer is promoted, may be sent back to his original position for less 
 
 offence than if not so promoted, 450. 
 accidental omissions in shipping articles may be supplied by parol, 450. 
 if seamen sail without, entitled to what wages, 450. 
 if signed and wages omitted, agreed wages may be shown by parol, 450. 
 if a seaman ship without signing, implied contract presumed binding to re- 
 main with ship till voyage ended, 450, n. 
 interlineations, erasures, or alterations, presumed fraudulent, 450. 
 immaterial erasures not applicable to, 451, n. 
 usual rules of evidence and of construction apply to, 451. 
 court of admiralty will construe liberally, 451, n. 
 but seaman may show by parol that statements were made to induce him to 
 
 sign, 451. 
 as that voyage or time of service were not same as on the paper, 451, and n. 
 or that voyages are distinct, 451, n. 
 
 or to impeach a contract by showing it to be in violation of law, 451, n. 
 or that the articles have been altered since they were subscribed, 451. 
 ship-owner cannot vary voyage by parol, 451, n. 
 prima facie presumed true, 451, n. 
 
 and owner must show fraud, etc., in order to contest, 451, n. 
 stipulation in writing for a series of voyages may be varied by mutual con- 
 sent, 451, n. 
 or new voyage substituted, 451, n. 
 
 parol evidence of huing may be introduced if articles not produced, 451, n. 
 for a fishing voyage, must be countersigned by owners, 452. 
 but seaman not restricted to signers for his wages, 452. 
 if he brings his action on, he is, 452, n. 
 master cannot bind owner to pay seamen three months' wages after voyage 
 
 ended, 452. 
 if hired in a foreign country may bind him to what, 452. 
 wages do not enter particularly into provisions of our statutes, 452. 
 seamen have lien for wages on ship and freight, enforceable in admiralty, 452. 
 freight, the mother of wages, 452. 
 none earned unless freight is, 452. 
 violation of shipping articles by master; rights of the seamen, 461, 462.
 
 INDEX. 757 
 
 SEAMEN — CowfiHMerf. 
 
 III. Provisions, 452-454. 
 
 to be furnished by owner, and kind, 452. 
 
 custom from earliest time, 452, n. 
 
 quantity for each day prescribed by statute, 452. 
 
 penalty for short allowance, 453. 
 
 if Shipped at foreign port, same, 453, n. 
 
 if necessity for short allowance by peril of sea, accident, or to help others in 
 
 distress, extra wages not given, 453. 
 for seamen to recover extra wages on account of short allowance, what must 
 
 be shown, 453, n. 
 if part of provisions spoil after sailing with requisite amount, 453, n. 
 ship-owner must show that ship sailed with requisite amount, 453, n. 
 but when need not give evidence of quantity and quality, 453, n. 
 deficiency in one kind not compensated by abundance in another, 453, and n. 
 discretion of the master in port in providing, when those specified in the act 
 
 cannot be obtained, 453. 
 the substituted must be fully equivalent, 453, n. 
 expenditure of, master must see to, 453. 
 and guard against waste, 453. 
 
 putting on allowance not same as putting on short allowance, 453. 
 what short allowance is, determined by navy ration, 453, n. 
 what necessary, to subject master or owner to extra wages for short allowance, 
 
 354, n. 
 if extra wages claimed, answer must set forth what, 454, n. 
 desertion, for want of provisions, justified, 457. 
 
 IV. Sea-worthiness of the Ship, 454, 455. See also, Carnage of Goods, I. ; 
 
 Charter-Party, II. ; and Sea- Worthiness. 
 sea-worthy ship to be provided by owner, 454. 
 held in England no implied warranty, 454, n. 
 contrary American doctrine, 454, n. 
 
 if vessel's condition known to seamen when they shipped, 454, n. 
 seamen's claim for wages if voyage abandoned for unseaworthiness, 454, n. 
 means of ascertaining provided by statute, 454. 
 survey of ship to determine sea-worthiness, 65, 454. 
 complaint made by mate and majority of crew, 454, n. 
 law applies to vessel leaving foreign port for home, 455, n. 
 two persons appointed by consul to inspect ship, 455, n. 
 if complaint well founded, master to pay costs, 455. 
 if not, costs and a reasonable sum for detention from wages of crew, 455. 
 certificate thereof to be made by the inspector, 455, n. 
 if seamen refuse to proceed, on ground that ship not sea-worthy, and she 
 
 proves to be so, punishment for such mutiny mitigated, 455. 
 if reasonable cause to believe ship not, seamen may lawfully refuse to go to 
 
 sea in her, 455, n. 
 that she is, presumption, 455, n. 
 what seamen must prove to justify refusal, 455, n. 
 that she is not, sufficient defence to charge of revolt, by compelling master to 
 
 return to port, 455, n. 
 desertion for unseaworthiness, justified, 471. 
 V. Care of Seamen in Sickness, 456-458. 
 sickness provided for by statute, 456. 
 
 VOL. I. 64
 
 758 INDEX. 
 
 SEAMEN — Confumed. 
 
 when medicine chest required, 456. 
 
 deduction from seamen's wages for support of marine hospital, 456. 
 
 this provision extends to boats, i-afts, or flats on Mississippi 
 
 Kiver, 456, n. 
 and to fishing and whaling vessels, 456, n. 
 by law-merchant, ship-owner and master must provide for sick, wounded, or 
 
 maimed seamen, 456. 
 when and what must be provided, 456. 
 what expenses seamen entitled to, if injured on duty, 457, n. 
 owners not liable for consequential damages, 457, n. 
 only for expenses while in their employ, 457, n. 
 if injured in service of ship, 457, n. 
 if injury received for executing an improper order, or wrongful violence of 
 
 an officer, 457, n. 
 whether requirement of medicine chest is a substitute for general requirements 
 
 of law-merchant, 457. 
 when attendance of physician charge on owners, 457, n. 
 cases requiring extraordinary assistance and surgical aid, 457, n. 
 mariners whose feet were frozen and partial amputation necessary, recovered 
 
 what, 457, n. 
 charge for nursing and attendance not affected by the statute, 457, n. 
 burden of proof as to sufficiency of medicine chest, on owner, 457, n. 
 captain not a proper person to prove sufficiency, 457, n. 
 effect of usage, that such seamen paid their own expenses in sickness, 458, n. 
 when expenses of being taken on shore for better medical treatment, or having 
 
 a physician from the shore, belong to seamen, 458, n. 
 right of care extends to officers of ship and master, 458. 
 owner liable for board, physicians' bills, and funeral expenses of a master paid 
 
 by consignee, when, 458, n. 
 if seaman put on shore for medical treatment for safety of crew, expense falls 
 
 on shij), 458. 
 if at his request it seems not, 458, n. 
 if asked to elect when sick with yellow fever, entitled to full wages, because 
 
 master's duty tg send him ashore, 458, n. 
 VI. Of the Return of Seajien to this Countkt, 458-463. 
 right to be brought back jealously guarded, 458. 
 
 shipping articles and shipping list under oath of master necessary, 458. 
 when obliged to present them to consul, etc. at eveiy foreign port, 459, n. 
 must give bond to deliver to boarding officer persons therein named, 459. 
 if any missing, must account therefor, 459. 
 bond not forfeited, if seamen properly discharged, or died, or absconded, or 
 
 impressed, 459, n. 
 what certificate of consul must state, as to absence, 459, n. 
 if seamen discharged at foreign port by master's or their own consent, what 
 
 master must pay over and above wages to consul or agent, 459. 
 in what proportion, and how paid, 459. 
 if seaman is left in foreign port, and vessel aftenvards sold, whether he can 
 
 recover extra wages, 459, n. 
 when consul may discharge seaman without requiring payment of three 
 
 months' wages, 459, n., 460, n. 
 consul's certificate that seaman's discharge was by his consent, conclusive, 
 
 459, n.
 
 INDEX. 759 
 
 SEAMEN— Continued. 
 
 not enough to certify that he discharged him "hiwfully," 459, n. 
 or "in accordance with the law of the United States," 459, n. 
 what it must set forth, 459, n. 
 signature must be legible, 460, n. 
 
 seal must allow vignette and motto to be distinguished, 460, n. 
 and to avail owner in suit against him for wages, what must appear, 460, n. 
 if seaman discharged without three months' wages, court would enforce pay- 
 ment thereof by libel in personam against owners, 460, n. 
 but a court at law has refused to sustain such action, 460, n. 
 court of admiralty in England also refused to enforce this provision, and why, 
 
 460, n. 
 if vessel sold, seamen entitled to wages up to sale, 460, n. 
 if consul neglects to require and collect the amount, answerable to United 
 
 States and to seamen for their wages, 460, n. 
 if discharge caused by disaster, and voyage thereby broken up, requirement 
 
 above not applicable, 460. 
 so provided by statute, where vessel \vrecked, stranded, or condemned as 
 
 unfit, 460, n. 
 when seaman injured by mate, and taken to hospital by police against his 
 
 consent, not entitled to benefit of above act, 460, n. 
 ship must be repaired, and seamen may hold on for reasonable time, 461. 
 if condemned in foreign port, as unseaworthy, and sold, seamen entitled to 
 
 extra wages, 461, n. 
 reasons for such decision, 461, n. 
 if ship captured, all proper means must be used to regain her, and seamen 
 
 may wait, 461. 
 if discharged before, may claim extra wages, 461. 
 what grounds sufficient to authorize discharge Ity consul, 461. 
 to justify a master for not producing a seaman, how the discharge must have 
 
 been made, 461, n. 
 degree of misconduct justifying master in putting an end to contract with sea- 
 men, 461, n. 
 not for slight or venial offence, 461, n. 
 nor for a single offence, 461, n. 
 • but for incorrigilile disobedience and refusal to do duty, 461, n. 
 
 or mutinous and rebellious conduct, 461, n. 
 or gross dishonesty, embezzlement, or theft, 461, n. 
 or if he is an habitual drunkard or stirrer up of broils, 461, n. 
 or if, by his own fault, he renders himself incapable of doing duty, 461, n. 
 if sent home for a crime, he can recover no wages after, 461, n. 
 so if sent home by consul, 461, n. 
 seaman may be discharged by consul (and then entitled to three months' 
 
 wages) if vessel is unseaworthy, or if master violates shipping articles, or 
 
 cruelly punishes seamen, 462. 
 even if sailor deserted, for this cruelty, 462. 
 refusing to bring home destitute seamen, penalty, 462, n. 
 action for, must be brought in name of government, 462, n. 
 foreigners, Avhilc employed in American vessels, entitled to benefit of tlic act, 
 
 462, n. 
 consul may require American ship to take home deserter, if destitute, 462, n. 
 consul's certificate, prima facie evidence of wliat, 462, n.
 
 760 INDEX. 
 
 SEAMEN— Continued. 
 
 consuls may send home our seamen in our ships, which arc bound to take 
 
 them, 462. 
 at what price, 462. 
 duty of seamen so sent, 462. 
 
 penalty for discharging seaman at a foreign port against his consent and with- 
 out good cause, 462. 
 
 the three distinct offences in section 10, act 1825, ch. 25, relat- 
 ing to leaving officer or mariners in foreign port against their 
 will, 462, n. 
 " maliciously" means what, in the act, 462, n. 
 seamen so discharged may recover what, 462. 
 wages up to successful termination of voyage, 462, n. 
 
 return of seamen to country where he was originally shipped, 462, n. 
 compensation intended to be complete indemnity for illegal discharge, 463, n. 
 how measured, 463, n. 
 
 when neither of the above rules as to wages applicable, 463, n. 
 wages earned on homeward voyage deducted from expense of return, 463, n. 
 but when mate came home before mast, not, 463, n. 
 seaman discharged from privateer unlawfully, entitled to his proportion of 
 
 prizes taken in his absence, 463, n. 
 breach of statute, subjecting master to penalty, does not destroy a seaman's right 
 of action who is injured thereby, 463, n. 
 
 VII. DlSOBEDlEN*CE OP SeAMEN, 463-469. 
 
 disobedience or misconduct punishable with severity, 463. 
 
 necessity therefor, 463. 
 
 general orders from one officer no excuse for disobedience to specific orders 
 
 of another, 464, n. 
 hammer improper instrument to strike seamen with, 464, n. 
 what no excuse for its use, 464, n. 
 so a sword, 464, n. 
 but a bucket of water not, 464, n. 
 a blow with a frying-pan or wiping a dirty knife on the fiice of one whose 
 
 duty to keep them clean, not an aggravated assault, 464, n. 
 a belaying-pin, or log of wood improper instrument, 464. 
 whether instrument used dangerous, question for jury, 464, n. 
 right of punishment formerly not specifically limited, 464. 
 administered by master in any form, 464. 
 for excess or cruelty, master answerable criminally and civilly in damages to 
 
 seaman, 464. 
 government must prove the beating, the want of justifiable cause, and malice, 
 
 464, n. 
 though flogging now abolished, not a cruel or unusual punishment under act 
 
 of 1835, 464, n. 
 when seamen may recover damages of a master for an assault, 464, n. 
 if mate, in obedience to master's orders, assists in punishing a seaman, not 
 
 answerable as joint trespasser, 465. 
 seamen's right to protection of master against illegal violence of other officers, 
 
 465. 
 master's duty to hear complaints and prevent repetition, 465. 
 for refusal so to do, and for such illegal treatment, seamen entitled to discharge 
 
 when ship in port, 465.
 
 INDEX. 761 
 
 SEAMEN — Continued. 
 
 for past offence, only highest officer can punish, 4G5. 
 flogging abolished by act of congress of 1850, 465. 
 
 vessels of commerce under that law include what, 465, n. 
 
 this not a penal law, 465, n. 
 
 what included in the law, 465. 
 
 blow with the hand, or stick, or rope, not necessarily included, 465. 
 
 punishment by, not justifiable under, 466, n. 
 
 what flogging is, 466, n. 
 
 degree of severity not material, 466, n. 
 
 statute intended to apply to deliberate and not sudden blow to produce 
 immediate obedience, 466. 
 
 officer may use violence in an exigency requiring instant obedience, 
 466, n. 
 punishments which may be resorted to now ; , 
 
 forfeiture of wages and irons, 466. 
 imprisonment, 466. 
 
 master may imprison on shore, when, 466, n. 
 
 imprisonment in foreign jails, of doubtful legality, 466, n. 
 
 when only justifiable, 466, n. 
 
 measure of safety and not discipline ; never used for past misconduct, 
 
 466, n. 
 
 duty of master, when necessary to resort to it, 466, n". 
 
 if by authorities of foreign place for violation of its laws, costs and 
 
 charges deducted from seamen's wages, 467, n. 
 if by master, neither these nor pay for hire of another seaman deducted, 
 
 467, n. 
 
 certificate of consul not evidence nor justification for master, 467, n. 
 
 court may examine de novo and determine whether justifiable, 467, n. 
 
 duty of consul as to deserters, etc., 467, n. 
 
 if consul calls on local authorities, master not responsible for imprison- 
 ment of seaman, 467, n. 
 
 if consul absent, his assistant has no authority to do so, 467, n. 
 
 and if master imprison, he responsible, 467, n. 
 hard labor, 466. 
 
 what master must prove, to justify this punishment, 466, n. 
 offences for which forfeiture of wages imposed, 468. 
 
 a trivial act of irregularity not sufficient, 468. 
 
 misconduct, such as to endanger safety of ship and due preservation 
 of discipline, 468, n. 
 
 disobedience must be of what nature, 468, n. 
 
 intemperance must be habitual, 468. 
 
 smuggling of goods by master or seamen sufficient, 468. 
 
 or owners may charge damage actually sustained upon their wages, 468. 
 
 embezzlement by master or crew also works forfeiture, 468. 
 
 how far seamen liable, if embezzlement has taken place, but the party 
 embezzling not known ; principle of contribution, 468, n., 469, n. 
 
 whether certain seamen, who could not have been guilty, liable to con- 
 tribute, 468, n., 469, n. 
 
 when the loss must be borne exclusively by tRc owners or master, 469, n. 
 
 not embezzlement for seamen to sell part of cargo by mate's direction, 
 469, n. , 
 
 64*
 
 762 INDEX. 
 
 SEAMEN — Continued. 
 
 crew not liable for escape of slave who enters on board as seaman, 
 
 469, n. 
 in England whole wages forfeited, or none, 469. . 
 here part may be forfeited, 469. 
 only wages earned before misconduct forfeited, 469. 
 if mate promoted and while master commit an offence, wages earned ' 
 
 as mate not forfeited, 469. 
 if seaman repents and offers to return to duty, master should receive 
 
 him, 469. 
 and if he does so, this is condonation of offence, 469. 
 forfeiture considered remitted, if seaman severely punished, 469, and n. 
 VIII. Of the Desertion of Seamen, 470^76. 
 of great importance to prevent, 470. 
 distinguished from absence without leave, 470. 
 
 going on shore without leave to seek advice as to effect of articles not, 470, n. 
 fullest liberty to go before consul to lay complaints, 470, n. 
 extends to what complaints, 470, n. 
 have no right to refuse to do duty, to see consul, 470, n. 
 discretion of master as to time and mode of landing, 470, n, 
 when refusal to return after temporary separation is desertion, 470, 471. 
 justified when voyage changed without consent, 471. 
 
 but crew not justified in such case in seizing vessel and bringing her 
 home, 471, n. 
 justified for cruelty, 471. 
 
 but a battery simply because excessive, not, 471, n. 
 what seaman must show to justify in such case, 471, n. 
 justified by insufficient provisions, 47 1 . 
 if no provisions, clear, 471, n. 
 if for bad provisions, what must be shown, 471, n. 
 justified for unseaworthiness of ship, 471, and n. 
 if justification is that deserter a negro, and captain threatened to sell him as 
 
 slave, what must be averred, 471. 
 return after, by seaman and acceptance by master or owner, condonation of 
 
 offence and waiver of forfeiture, 471, 472. 
 though clause to the contrary in articles, 472. 
 how and when he must be received, 472. 
 
 desertion by not rendering himself on board before voyage begins, what for- 
 feiture, 472, and n. 
 may be compelled to go on board under warrant of justice, 472. 
 justices of peace alone power to try and commit deserting seamen, 472, n. 
 United States commissioner's power to arrest and commit for trial, 
 
 472, n. 
 if forced on board, forfeiture waived, 472. 
 receiving seaman on board, no waiver of penalty, 472. 
 desertion on voyage, he may be apprehended, 472. 
 
 if voyage broken up by disaster while seaman is imprisoned, he must 
 
 be discharged, 472, n. 
 for such desertion forfeits what, 473. 
 
 and becomes liable for all damages and costs of owner in hiring an- 
 other, 473. 
 statute provision in regard to forfeiture of wages for, 473, n.
 
 INDEX. 763 
 
 SEAMEN — Continued. 
 
 court not bound to pronounce entire forfeiture, 473, n. 
 desertion after majority, by one shipped by his father during minority, father 
 
 entitled to wages up to majority, 473, n. 
 if minor ships after death of his father, he may avoid contract by desertion, 
 
 and recover on quantum meruit, 473, n. 
 desertion on one voyage, no forfeiture of wages earned on a prior voyage, 
 
 473, n. 
 how defined by statute ; and construction of statute, 373-375, and notes, 
 statute does not supersede maritime law, 474, n. 
 if seaman remains more than forty-eight hours without leave ; seeking 
 
 redress before a tribunal, not, 474, n. 
 must be an exact entry of fact of, on log-book made on day the 
 
 absence begins, 474. 
 what entry must state, 474, n. 
 entry on day, a sine qua non, 474, n. 
 the entries, " they ran away," and afterwards " absent without leave," 
 
 474, n. 
 entry necessary, though absence permanent, 474, n. 
 not conclusive ; parol admissible to falsify it, 474, n. 
 whether desertion, if ship sails before forty-eight hours expired, and 
 
 seamen unable to return, 475, n. 
 ititent of seaman at time of, 475, n. 
 seaman leaves at his own peril, 475, n. 
 ship not bound to wait for him, 475, n. 
 if return prevented by captain no forfeiture, 475, n. 
 attempt to return at night by deserter without saying who he is or what 
 
 he wants, no return to remit forfeiture, 475, n. 
 so if he return, but refuses to do duty, 475, n. 
 return must be unconditional, 475, n. 
 
 must be continued absence of forty-eight successive hours, 474. 
 absence although not within statute definition may be an offence, and seaman 
 
 liable, 475, 476. 
 master's power to retake person and confine him on shipboard in home 
 
 port, 475, n. 
 desertion before vessel moored at end of voyage, is within the statute, 475. 
 but, if after mooring, it is not a desertion under the law-merchant, 476. 
 yet ship-owners have claim for compensation in damages, 476, 475. 
 of part of the crew, no release of remainder from performing their duty, 
 though more onerous, 476. 
 IX. Of the Contract of the Seamen, 476-478. 
 
 contract between seamen and owner, or master as his agent, a contract of 
 
 hiring and service, 476. 
 all that is implied by the law generally, belongs to their contract, 476. 
 modified by peculiar nature of statutes, 476. 
 seamen hired and payment promised in four ways, 476. 
 for certain voyage and to receive certain proportion of freight earned, 476. 
 for a certain voyage, or by the run, and to be paid a round sum at the close, 
 
 477. 
 on shares, 477. 
 
 mostly confined to whaling, fishing, and coasting voyages, 477. 
 contract one of hiring, and not of partnership, 477, n.
 
 764' INDEX. 
 
 SEAMEN— Co»/»)««/. 
 
 master's lien on seaman's lay for clothing, 477, n. 
 
 not personally responsible for wages of seamen when vessel lost and 
 
 cargo sent home, 477, n. 
 acts as agent of owner, and not crew, 477, n. 
 
 for a definite voyage or voyages, or definite period on monthly wages, 477. 
 
 whether contract for entire voyage at so much per month, or for so long as 
 party remains on board, giving cause of action at end of each month, 477, n. 
 
 female serving in any capacity entitled to all rights as seamen, 478. 
 
 and suliject to all disabilities, 478. 
 X. In other Eespects : 
 
 liability of part-owners for torts of, 94, 95. 
 
 quarters and accommodations of, on board vessels, 232, n., 249. 
 
 gratuities to, whether average loss, 307. 
 
 duty of master, as to consultation with, 313. 
 
 hii-ed by master, 383. 
 
 shipment of minor as, without parents' consent, 383, n. 1 ; 391, n. 1. 
 SEA-WORTHINESS, 454, 455. See Scameii, IV. 
 
 sale of ship for want of, 65, 66. 
 
 duties of ship's husband, as to, 98. 
 
 undertaking of ship-owner, as to. See Carriage of Goods, I. 
 
 whether condition precedent to payment of charter-money, 239, 268-270. 
 
 damages for unseaworthiness, 239. 
 
 for particular voyage sufficient, 240, n. 
 
 duty of owners to keep ship sea-worthy ; and of charterers to remain in her so 
 long as she can be kept so, 259. 
 SEIZURE, by foreigner, when vessel cannot be registered after, 34. 
 SECAEES, hiring of vessel upon, 236. 
 
 rights and liabilities of owners, when the master hires a vessel on shares, 253. 
 
 huing of sailors upon, 477. 
 SHEPPAED, 5. 
 "SHIP." See Sale of Sh!p. 
 
 what the word includes, in sale, 71. 
 
 "ship and owners," credit given to, 91, and n. 3. 
 
 use of ship by owners. See Carriage of Goods ; Collision. 
 
 letting of. See Charter-Parttj. 
 
 part-ownership in, and partnership in cargo, 83, 96, n., 97, n. 
 
 importance of, and public policy respecting, 121. 
 
 to be properly manned, 122. 
 
 contributory value of, in general average, 320, 321, 328. 
 SHIPBUILDER. See Builder. 
 
 SHIP CHANDLER has lien for materials furnished, under Pennsylvania statutes, 498. 
 SHIPPING ARTICLES, 442-452. See Seamen, II. 
 SHIPPING LIST, 449, 450. 
 
 SHIP'S HUSBAND, 97-101. See Part-Oicners, VI. 
 SHIP'S PAPERS, duties of ship's husband as to, 98. 
 SICKNESS, care of seamen in, 456-458. See Seamen, V. 
 
 SIGNATURE and seal must be distinct and legible to secure official respect, 460, n. 
 SILVER, limitation of carrier's liability for loss of, 404, 405. 
 SLAVES, contribution for, in general average, 324. 
 SMUGGLING, sale of ship, by order of court, for, 65. 
 
 by master or crew, 468.
 
 INDEX. 
 
 765 
 
 STATE STATUTES. See Statutes. 
 
 courts, jurisdiction of, and of United States courts in questions of pilotage, 
 
 479, 480. 
 laws, as to lien of material-man, 492-494, and n., 496-502. 
 STATUTES, rules of construction of, 403. 
 English : 
 
 relating to Priority of English Ships, 26, n. 
 " " 26, n. 
 
 of 42 Ed. 3, 
 
 of 5 Rich. 2, 
 
 of 6 Rich. 2, c. 8, 
 
 of 13 Elizabeth, 
 
 of 21 Jac. I., c. 19, 
 
 of 2 Car. 2, c. 18, 
 
 of 13 & 14 Car. 2, c. 11, 
 
 of 7 Geo. 1, c. 21, 
 
 of 2 Geo. 2, c. 11, 
 
 of 8 Geo. 2, c. 24, 
 
 of 7 Geo. 2, c. 15, 
 
 of 19 Geo. 2, c. 37, 
 
 of 22 Geo. 3, c. 35, 
 
 of 26 Geo. 3, c. 60, 
 
 of 26 Geo. 3, c. 86, 
 
 of 34 Geo. 3, 0. 68, 
 of 35 Geo. 3, c. 66, 
 of 45 Geo. 3, c. 72, 
 of 53 Geo. 3, c. 139, 
 of 53 Geo. 3, c. 159, 
 of 2 Geo. 4, 
 of 4 Geo. 4, c. 83, 
 of 6 Geo. 4, c. 94, 
 of 6 Geo. 4, c. 125, 
 of 1 Wm. 4, c. 68, 
 of 3 & 4 Wra. 4, c. 55, 
 of 3 & 4 Vict. c. 65, 
 of 5 & 6 Vict. c. 39, 
 of 8 & 9 Vict. c. 89, 
 of 12 & 13 Vict. c. 29, 
 of 14 & 15 Vict. c. 79, 
 
 " 26, n. 
 Sale of Ship, 80, n. 
 " 81, n. 
 Registry, 26, and n. • 
 
 26, n. 
 Bottomry, 440. 
 Ships as Camers, 172, n. 
 172, n. 
 Torts of Master, 396, n.,402. 
 Bottomry, 440. 
 
 Composition with an enemy, 298, n. 
 Registry, 40, 48. 
 Ships as carriers, 183, n., 398, 402, 
 
 406, n. 
 Registry, 40. 
 
 Composition with an Enemy, 298, n. 
 Ransom to an enemy, 299, n. 
 Sale of Ship, 71. 
 
 " " 72, n., 402. 
 
 Carriers, 177, n. 
 Stoppage in Transitu, 3G3, n. 
 " " 363, n. 
 
 Pilots, 485, n., 486. 
 Carriers, 177, n. 
 Registry, 27, n., 57, n. 
 Material-Men, 491, n. 
 Stoppage in Transitu, 363, n. 
 Registry, 42, n., 43, n. 
 27. 
 
 " Collision, 194, n. 
 of 17 & 18 Vict. c. 104 (Merchants' Shipping Act), relating to Collision, 
 196, n., 199, n. ; Master, 397, n., 398, n., 405. 
 American: (United States) 
 
 of 1789 relating to Registry, 28, 29. 
 
 of 1789 " " Pilots, 479, n., 480, n. 
 
 of 1790 " " Seamen, 442, n., 450, n., 452, n., 4.53, n., 454, n.,456, n., 
 
 472, n., 473, n., 474, n. 
 of 1792 " " Registry, 27, 28, 29, 31, 32, 33, notes, 34, and 35, 38, 
 
 41, n., 42, n., 50, 78, n. 
 of 1793 " " Enrolling and Licensing, 27, 29, 31, 32, 34, 35. 
 of 1797 " " Registry, 33, and 34. 
 of 1798 " " Seamen, 456, n. 
 of 1799 " " " 456, n. 
 of 1802 " " " 456, n.
 
 766 
 
 INDEX. 
 
 STATUTES — Continued. 
 
 of 1803 relating to Registry, 30, 459, n., 460, n., 461, n., 462, n. 
 
 of 1804 
 of 1805 
 of 1811 
 ■of 1813 
 of 1817 
 of 1825 
 of 1825 
 of 1829 
 of 1831 
 of 1835 
 of 1837 
 of 1838 
 of 1839 
 of 1840 
 of 1840 
 
 of 1842 " 
 of 1843 " 
 of 1849 " 
 of 1850 " 
 of 1851 " 
 of 1855 " 
 of 1856 " 
 of 1856 " 
 A3IERICAN : (State) 
 
 Maine, Rev. Stat. 1857, 
 
 Rev. Stat. 1841, 1857, 
 
 Rev. Stat. 1857, 
 New Hampshire, C. Stat. 1853, 
 Vermont, Rev. Stat. 1840, ' 
 
 Massachusetts, Rev. Stat. 1836, ' 
 " Rev. Stat. 1 836, 
 " Rev. Stat. 1836, 
 " Acts 1839, 1845, 1849, ' 
 " Acts, 1848, 1855, 
 Rhode Island, R. S. 1857, 
 New York, Act, ' 
 
 " Rev. Stat. 1830, 1852, ' 
 
 29. 
 
 ' Seamen, 456, n. 
 " 456, n. 
 
 ' Foreign Seamen, 441, n. 
 
 ' Registry, 27, 39. 
 
 ' Registry of Steamboats, 33. 
 
 ' Seamen, 462, n., 464, n. 
 
 ' " 473, n. 
 
 ' Registry of "Whale Ships, 33. 
 
 ' Mutiny, 31, n., 465, n. 
 
 ' Pilots, 479, n. 
 
 ' Regulation of Steamboats to prevent Collision, 193, n. 
 
 ' Registry of Whale Ships, 30. 
 " 31. 
 
 ' Shipping Articles, 442, n., and 443, n., sl44, n., 450, n., 
 451, n., 454, n., 455, n., 459, n., 461, n., 462, notes, 
 470, n. 
 " Shipping Articles, 472, n. 
 " Seamen, 456, n. 
 " Navigation on Lakes, 193, n. 
 
 " Sale, 51, 55, 57, 58, 82, n., 120, 231, 455, n., 465, n. 
 " Owners, 122, n., 183, n., 399, 400, 404, 406. 
 " Liens, 500, n. 
 " Change of Name, 36. 
 " Seamen, 460, n., 473, n. 
 
 relating to Stoppage in Transitu, 364, n. 
 " " Torts of Master, 399, n. ; 401, 
 
 n. ; 402. 
 " " Liens, 493, n. 
 " " " 493, n. 
 " " Collision," 195, n. 
 " " Sale, 58. 
 " " Torts of Master, 399, n. 
 " " Pilots, 480. 
 
 " Stoppage in Transitu, 364, n. 
 
 " Liens, 493, n. 
 
 " Stoppage in Transitu, 364, n. 
 
 " Collision, 193 ; 195, and n. 
 
 " Stoppage in Transitu, 364, n. 
 
 " Pilots, 480. 
 
 " " Rev. Stat. 
 " " 2 Rev. Stat. Act, 1855, 1858, " Liens, 493, n. 
 Pennsylvania, Act, 1834, relating to Stoppage in Transitu, 364, n. 
 
 " 1858, 
 Georgia, Act, 1851, 
 " 1852, 
 Florida, " 1847, 1848, 1850, 
 Alabama, " 1836, 
 " " 1852, 
 
 Mississippi," 1840, 1841, 
 
 " Liens, 493, n. 
 
 " " 106, and n. 
 
 " " 493, n. 
 
 " " 106, and n., 493, n. 
 
 " " 106, n. 
 
 " " 493, n. 
 
 " " 107, and n.
 
 INDEX. 
 
 767 
 
 STATUTES— Continued. 
 Louisiana, Act, 
 Arkansas, Rev. Stat. 
 Tennessee, Act, 1833, 
 Kentucky, " 1839, 1841, 
 Ohio, Rev. Stat. 1854, 
 
 relating to Sale, 69, n. 
 
 Liens, 106, and n. ; 493, n. 
 
 " 493, n. 
 
 " 106, and n., 493, n. 
 
 " 106, and n., 109, n. 
 
 493, n. 
 Stoppage in Transitu, 364, n. 
 Liens, 107, and n. 
 
 " 493, n. 
 
 " 107, andn., 109, n. 
 
 " 493, n. 
 
 " 107, and n. 
 
 " 493, n. 
 
 " 107, andn.; 109, n. 
 
 " 493, n. 
 
 " 107, and n. 
 
 " 39.3, n. 
 
 *' 108, and n., 493, n. 
 
 " 108, and n., 493, n. 
 
 " Rev. Stat. 1844, " 
 
 Indiana, Act, 1838, " 
 
 " Rev. Stat. 1852, " 
 
 Elinois, Rev. Stat. 1845, " 
 
 " Rev. Stat. 1845, 1858, 
 Michigan, Rev. Stat. 1839, 184^, " 
 
 Rev. Stat. 1857, 
 Missouri, Rev. Code, 1845, " 
 
 Rev. Stat. 1855, " 
 
 low^ Rev. Stat, and Code, " 
 
 " Code and Act, 1854, " 
 
 "Wisconsin, Rev. Stat. " 
 
 California, Laws of, " 
 
 STEAMBOAT. See Tow-Boat. , 
 
 in whose name registered, 33. 
 
 course and duties of, to avoid collision. See Collision. 
 powers of master of, 387. 
 lien of, 490. 
 STEVEDORES, lien of, upon vessel, 489. 
 STOPPAGE IN TRANSITU, 335-377. 
 
 I. Origin and History of the Right, 335-339. 
 definition of the right, 335. 
 to whom it belongs, 335. * 
 originated with waterborne goods, 335. 
 properly considered under shipping, 335. 
 
 uncertain when and how it became part of the law of England, 335. 
 its recent adoption there, 335. 
 
 three methods by which it may have entered into the law of England, 335. 
 first : by the continental law, 335. 
 
 how this law treats a sale, 336. 
 
 no right of property in buyer till possession, 336. 
 
 its distinction between jms ad rem and ji"»s in re, 336. 
 
 seller's ownership of goods till when, 336, 
 
 no necessity of action to revest title, 336. 
 
 buyer's insolvency before possession leaves the goods the property of 
 
 seller, 336. 
 rule in Scotland formerly and now, 336. 
 rule in France similar to nilc in England, 336. 
 impossibility of rule of civil law in England, 336. 
 where under civil law buyer could reclaim property, 336. 
 second method : 
 
 supposable right of rescission in tlie seller for non-payment, if buyer in- 
 solvent, 336. See 368. 
 effort to establish this as the tnie theory, 336. 
 course of adjudication here and in England against it, 337.
 
 768 INDEX. 
 
 STOPPAGE IN TRANSITS] — Continued. 
 third method : 
 
 that lien extends and goods are constructively in the seller's possession 
 till buyer's actual possession, 337. 
 true rule ; combination of first and third, 337. 
 cause of its adoption, 337. 
 
 founded on, and the exercise of, seller's lien, 337, 338, n. See 368. 
 law of lien devised to supply want of civil law, distinction between jiis 
 
 ad rem and^us in re, 337. 
 above view sustained by cases, 337, 338, and n., 339, n. 
 attempt to change law from lien to rescission, 338. 
 first cases on, 338, n. 
 founded on equitable rather than legal principles, 338, n., 
 
 339, n. 
 opinion of Hardwicke, L. Ch., and Butler, J., as to, 338, n. 
 " he who would have equity, must do equity," 338, n. 
 right or privilege not known before 1690, 339, n.^ 
 whether a lien or a right of rescission important, 339. 
 II. Stoppage in Transitu an Extension of Seller's Lien, 339-342. 
 if stoppage in transitu rescinds or annuls sale, property vests in seller, 339. 
 therefore buyer cannot tender price and take the "^oods, unless, 339, 
 and seller no claim against buyer for deficit in price, 339. 
 and nothing necessary to complete seller's title, 339. 
 but he may resell at once and obtain profit, 339. 
 if only the exercise of lien by seller, wholly difl^erent effbct, 339. 
 goods then in seller's hands as security, 340. 
 payment of what is due, discharges lien and destroys seller's right of 
 
 possession, 340. 
 seller may treat the goods as pledged for the debt, 340. 
 to sell them, must do what, 340. 
 balance returned to buyer, if proceeds more than debt and charges, 
 
 340. 
 if not sufiicient, balance due from buyer, 340. 
 if buyer insolvent, seller may take his dividend on balance, 340. 
 the latter the American theory, 340, and n. 
 the English theory, 340, and n. 
 surety for price has no right of stoppage, 340. 
 when held equitable lien and not a rescission, 340, n. 
 
 vendee or his assignees may recover the goods on payment of price, 340, n. 
 vendor may recover price, on tender of goods, 341, n. 
 vendor may stop goods for balance, if paid in part, 341, n. 
 lien exists only between vendor and vendee, 341. 
 consignor, virtually or substantially a vendor, may exercise right of stoppage, 
 
 341. 
 principal consigning to his factor, upon factor's insolvency may stop goods, 
 
 341. 
 and so without such insolvency, 341. 
 so, person remitting money for a particular purpose, 341. 
 if consignor send goods for a precedent debt, no right and why, 341 . 
 not prevented by unadjusted account or uncertainty of balance, 341, and n, 
 nor by acceptance of negotiable paper, unless, 341. 
 
 if such bill be proved in insolvency and dividend paid, 342.
 
 n^DEX. 769 
 
 STOPPAGE IN TUANSITJ] — Continued. 
 
 consignor need not tender back bill, 342, n. 
 nor actual receipt, of part payment, 342. 
 
 if part payment and seller stops afterwards, the buyer cannot recover back, 
 part payment, 342. 
 if a rescission he could, 342. 
 III. When this Right mat be exercised, 342-366. 
 
 A. Constructive possession of seller, 342, 343. 
 
 seller's actual possession of goods makes thcni his security, 342. 
 
 buyer's possession destroys seller's lien, 342. 
 
 stoppage only when neither has actual possession, 342. 
 
 consignor's right gone when goods reach consignee, 342, n. 
 
 constructive possession of buyer, and actual possession of seller, yet no right 
 
 to stop, 343. 
 when the opposite may be true, 343. 
 
 B. Of goods warehoused, 343-346. 
 
 warehouse-man agent of every depositor of goods, 343. 
 his possession, depositor's possession, 343. 
 
 when the seller permitted the buyer to leave the goods in the seller's ware- 
 house for a charge, no right to stop, 343. 
 but if therc'upon rent charged and not paid when vendee fails, has right, 
 
 343. 
 eifect of some act remaining to be done by seller, 343. 
 warehouse-man's order to weigh and deliver ; must be weighed first, 344, n. 
 sale of oil in casks to be measured, etc., 344, n. 
 seller's order for warehoused goods may not transfer goods, 344. 
 but buyer's delivery of the order to warehouseman will, 344. 
 so if warehouseman enter same in his books, or otherwise accept tlie order, 
 344, 345. 
 dock warrants not negotiable, 344, n. 
 
 when property passes to vendee who sells by sample goods in. 
 vendor's warehouse, and parts of the same are delivered by 
 vendors on order of vendees, 344, n. 
 if buyer has acted under the order and removed part, 345. 
 transfer on whai-finger's books makes him ordinarily vendee's agent, 345, n. 
 when not agent, 345, n. 
 " we hold to your order," etc., given by a vendor of goods in his warehouse 
 
 to a vendee, 345, n. 
 seller may countermand order if he has an important thing to do on or with 
 
 goods, 345. 
 sale of oats in a certain bin, 34^, n. 
 when a seller could not countermand the order, 345, n. 
 if seller has justified wareliouse-man in certifying that he holds goods subject 
 
 to buyer's order, right to stop lost, 346. 
 transit ended when the carrier deposits the goods in his warehouse subject to 
 
 buyer's order, 346. See post, F. 
 goods most frequently stopped in carrier's hands, 346. 
 tliough the goods by bill of lading deliverable to consignee, 346, n. 
 C. When deliverij on shipboard terminates the tmnsit, 347-350. 
 
 if the ship is owned or eliartered by buyer of goods ; distinction, 347-349, 
 
 and notes. 
 and if the goods are to be directly carried to buyer by such shij), 347, and n. 
 
 VOL. I. 65
 
 770 INDEX. 
 
 STOPPAGE IN TRANSITU— Conf»iuec/. 
 
 but how if sent in such ship to foreign market, 347, and n. But 
 see post, 349, 350. 
 cases discussing the right of vendor to stop in transitu after delivery on board 
 ship owned or chartered by vendee, 347-349, n. 
 
 vendee's instructions to vendor to send by a particular ship, 348, n. 
 
 goods shipped for a particular port and a market, 348, n. 
 
 put on board for, and on the account and risk of, consignees, 
 
 348, n., 349, and n. 
 deliverable by bill of lading to the vendor's order, or assign's, 
 
 348, n. 
 goods ordered by vendee to be sent to another person, in transit 
 
 till they reach him, 349, 350. But see ante, 347, and n. 
 second buyer cannot defeat seller's lien, 350. 
 
 if seller takes receipt from master as for his own goods, he pre- 
 serves his lien, 350. 
 so also by a demand for such receipt, 350. 
 D. Hoiv the lien of the carrier affects this right, 350, 351. 
 
 carrier by land or sea acquires lien for his charges, 350. 
 if vendee owns ship, cross liens may arise, 350. 
 ship-owner has lien for freight as against seller, 350. 
 seller has lien for the price as against ship-owner who is buyer, 330. 
 how the law adjusts these liens, 350. 
 
 ship-owner having possession retains goods for his freight, 350. 
 seller by paying freight, and not otherwise, may acquire right to posses- 
 sion, 350. 
 trover by shipper against administrator or assignee of an insolvent, if freight 
 
 is tendered, not otherwise, 350. 
 relation of carrier to goods, and to buyer and seller, 350. 
 claimant of goods must pay freight, 351. 
 but only 'on goods stopped, 351. 
 
 while held by carrier for his lien, goods in transit, 351. 
 landing on consignee's wharf of part of goods by carrier, and taking that part 
 
 back and holding all, will not extinguish seller's right, 351. 
 payment of freight by buyer will not of itself terminate transit or take away 
 
 right, 351. 
 carrier agreeing to look to consignor for freight, cannot detain goods from 
 
 consignee for freight, 351. 
 and after demand, right would not continue, 351 . 
 where carrier refused to deliver until old demand settled, 351, n. 
 E. Good's lodged in custom house, 351, 352. 
 
 when goods so lodged have completed their transit, 351, 352. 
 
 if any thing remains to be done by consignee, 352. 
 if goods pass to the warehouse because consignee no right to them by non- 
 payment of duties or otherwise, 352. 
 not entered on account of loss of invoice, 352, n. 
 
 subsequent taking by government of goods once delivered to consignee, 352. 
 r. Of constructive delivery of goods, 352-354. 
 
 by carrier agreeing to hold, or to deliver to his customers as wanted, 353, 
 
 and n. ; 346. 
 by marking, or taking samples or the like, without removal of any part, 353, n. 
 in such cases agency the test, 353.
 
 INDEX. 771 
 
 STOPPAGE IN TRANSITU— Co)if(»»frf. 
 
 by deposit for carrier's convenience till he receives directions, 353, n. 
 by direction of goods to purchaser, 333, n. 
 by notice to vendee of arrival of goods, 353, n. 
 
 evidence of intention as to delivery not commnnicated to custodian 
 
 held admissible, 354. 
 by delivery to vendee, of key of vendor's warehouse, 354. 
 by receipt by vendor of rent of warehouse, 354. 
 by demanding and marking goods, by vendee's agent at the inn reached at 
 
 end of journey, 354. 
 by permitting goods to be re-sold and re-marked, 354. 
 by delivery to vendee's agent or packer, when, 354, and n. 
 if goods are to rest, where received by agent, 354, 355, and n. 
 if agent is still to forward them, 354. 
 G. Whether consignee may hasten his oicn possession, 355, 356. 
 constructive possession, full effect of actual, 355. 
 corporal touch of vendee once held necessary, 355, n. 
 delivery on vendee's wharf simply, ends transit, 355, n. 
 six classes of cases wherein the transit has not ended, and right of stoppage 
 
 exists — 
 
 1. Where goods originally forwarded on board ship chartered by 
 vendee, 355, n. 
 
 2. Where delivery of goods to vendee deemed incomplete from his 
 refusal to accept, id. 
 
 3. Where goods remained in custom house for duties unpaid, id. 
 
 4. Where goods still in carrier's hands, or wharfinger's, or his agent's, 
 subject to caiTier's lien for freight, id. 
 
 5. Where goods, though at port of delivery, are on shipboard or in the 
 hands of ship's lighterman, to be conveyed to wharf, id. 
 
 6. Where goods perfonned part of transit, and in middle-man's hands 
 to be forwarded by other carriers, id. 
 
 consignee cannot terminate transit by taking premature possession, 356, 
 
 and n. 
 difficulty of laying down any rule on this subject, 356. 
 no loss of right by lapse of time merely, 356. 
 when vendee may take possession before arrival, 356, n. 
 what act at an intermediate place will extinguish the right, 356, n., 357, n. 
 attachment by creditor of vendee, and pledge of goods by him to secure 
 
 bondsman, 357, n. 
 reception by vendee at intermediate place, 357, n. 
 mere demand by vendee at such place, 357, n. 
 order by vendee to intermediate forwarder to sell ; effect on goods sold, and 
 
 those forwarded to vendee, 357, n. 
 H. Of the delivery of part of the goods, 357. 
 whether terminates transit, 357. 
 if contract severable, 357, and n., 358, n. 
 if contract entire, 357, and n., 358, n. 
 I. Of the effect of a hill of lading on this right, 358-366. 
 right of consignor by bill of lading to, 139, 141, 142. 
 depends entirely on the negotiable quality of a bill of lading, 358-366. 
 importance of this question, 358. 
 the question discussed, 358-366, and n.
 
 772 INDEX. 
 
 STOPPAGE IN TRANSITU— Conf/nwJ. 
 
 difference between English and American cases on this point, .359-361, and n. 
 
 bill of lading may be considered carrier's receipt for the goods, 358. 
 
 as such, little effect upon the right, 358. 
 
 how regarded by law-merchant, 358. 
 
 muniment of title, 358. 
 
 quasi negotiable instrument, 359. 
 
 doubt of English courts, whether transfer by indorsement operated as 
 
 actual transfer of goods, 359, 360, and n. 
 wherein differing from a bill of exchange or promissory note, 360, n. 
 
 shipper's right not affected by an appropriation of it without his authority, 
 though indorsed in blank deliverable to his assigns, 360, n. 
 
 if stolen from him, rights of a subsequent bona fide transferree, 360, n. 
 
 represents what, and what it transfers, 360, n. 
 
 if indorsed as a pledge to secure consignee's debt, consignor's right of stoppage 
 not gone, 360, n. 
 
 but holds subject to pledgee's rights, 360, n. 
 
 if consignee pledged his own goods also, consignor may compel appropriation 
 of all consignee's goods to pledgee's claim before any in bill of lading, 361, n. 
 
 consignor bound to tender specific advances on that bill, 361, n. 
 
 but not liable for general balance of account, 361, n. 
 
 word "assigns " or "order" in, effect of, in rendering negotiable, 361. 
 
 what elements make up its negotiability, 361. 
 
 if transferred without indorsement, carries no title to property, 361. 
 
 special indorsement, 361. 
 
 when a muniment of property, transferable, and justifying third parties in be- 
 lieving consignee had right to sell, so that he may transfer and defeat right 
 of stoppage, 362. 
 
 if buyer from consignee knows the sale to be in fraud of original seller, sale 
 voidable, 362. 
 
 so if he knows of the present or prospective insolvency of consignee, 362. 
 
 sale by consignee to one ignorant of his insolvency, and to prevent stoppage 
 in transitu, would not affect purchaser, 362. 
 
 sub-vendee's notice or knowledge that goods are not paid for, 362. 
 
 what notice or knowledge is necessaiy, 362. 
 
 consignee must have power of sale by bill of lading, 362. 
 
 what results otherwise, 362, 363. 
 
 if consignee a factor only, can only sell for his principal, 363. 
 
 and no authority to pledge, 363, and n. 
 
 effect of consignor's sending his factor the usual and unrestricted bill of lading, 
 363. 
 whether factor can pass property in the goods, in such case to inno- 
 cent party, 363. 
 statutes protecting such transferrees, 363, n., 364. 
 practice of continental merchants, 364, 365. 
 
 mere possession of bill of lading transfers no property, unless lawful, or trans- 
 ferree justified in believing lawful, 365. 
 
 delivery of master's bill of lading to consignee conveys no title, 365. 
 
 but might strengthen an equitable title, 365. 
 
 deposit of bill of lading creates a lien on the goods to the amount paid on the 
 security, 365. 
 
 such a lien will prevail against seller's right to stop, 365.
 
 INDEX. 
 
 773 
 
 STOPPAGE IN TRANSITU— Continued. 
 but will not destroy it, 365. 
 what sufficient to give an equitable title, 365, n. 
 property may vest in consignee free from lien without a bill, 366. 
 
 IV. How FAR THE ExEKCISE OF THIS ElGHT MUST BE ADVEKSE TO THE 
 
 Buyer, 366-368. 
 meaning of rule, that exercise of the right must be adverse to buyer, 366. 
 cannot be exercised under title derived from consignee, 366, n. 
 effect of stranger's taking possession of goods for consignor, 366, n. 
 exercise of, by consignor on notice from consignee of his inability to pay for 
 
 goods, 366. 
 declarations showing intent of consignee not to take possession of goods 
 
 landed on a wharf where he usually received goods, 367, n. 
 action by vendor for price of goods, an election not to rescind, 367, n. 
 assignment of the goods by the consignee, to be disposed of for the consignor, 
 
 is an affirmance of the contract and destroys the right to stop, 367, n. 
 where a question of rescission and not of lien, 368. See ante, I. 
 right of stoppage belongs to lien, not to rescission, 368. 
 
 if sale actually rescinded, or if goods within vendee's power and he declines to 
 hold them,' and seller subseciuently obtains them, this is a preference as 
 against other creditors of vendee, 368, n. • 
 goods put in vendee's warehouse though contraiw to his order, transit termi- 
 nated, 368, n. 
 V. "What Ixsolvexct will give the Eight, 369-373. 
 
 if seller knew of buj-er's insolvency when he sent the goods, cannot stop them, 
 369. 
 unless, so sending them, he had some special security which failed, 369. 
 whether insolvency must take place between sale, and exercise of right, 369, 
 
 and n. 
 only a vendor can stop goods, 370. 
 
 foreign merchant buying goods on his own account, and sending them, 
 
 responsible as vendor within meaning of law, 370. 
 or one sending goods, to be sold jointly for vendor and consignee, 370. 
 when an alien enemy may stop, 370. 
 a surety for consignee to the consignor cannot, 370. 
 his security by attachment, and not by stoppage, 370. 
 sender's lien must be a lien for price, to enable him to stop, 370. 
 property in goods essential to exercise of right, 371. 
 nothing but buyer's insolvency gives this right, 371. 
 or will allow consignor to interfere with consignment, 371. 
 need not be legal or formal insolvency, 371. 
 meaning of term insolvency, 371, n., 372, n. 
 in technical sense, means taking benefit of insolvent act, 371, n. 
 in popular sense, inability to pay debts, 371, n. 
 in mercantile sense, stoppage of payment, 371, n. 
 either insolvency sufficient to authorize exercise of right, 371, n. 
 but must be some overt act evidencing such insolvency, to authorize exercise 
 
 of right, 371, n. 
 mere inability to pay without such act, insufficient, 372, n. 
 vendee's admission of insolvency authorizes vendor to stop goods, 372, n. 
 attachment by vendee's creditors of goods in transitu, 372, n. 
 seller, stopping, assumes the risk, 372. 
 
 65*
 
 774 INDEX. 
 
 STOPPAGE IN TEA'NSITV — Continued. 
 
 buyer may pay price and claim goods, 372. 
 
 malicious stopping by seller, 372. 
 
 acceptance of bills, or giving notes by solvent buyer for goods, defeats seller's 
 
 right, 372. 
 buyer's refusal to comply with terms of sale gives seller the right, 372. 
 seller's right not defeated by any bargain between consignee and his assignee, 
 
 372. 
 or by claim, lien, or attachment of any other person, 372 ; 362, n. See a7ite, 
 
 III, D. 
 when seller must discharge the claim, 373 ; 350. 
 precedence of seller's lien, 373. 
 
 attachment by vendee's creditor will not defeat vendor's right, 373, and n. 
 but if vendee takes such possession, as he can, right gone, 373, n. 
 VI. How THE Right of Stoppage mat be enforced and exercised, 
 373-377. 
 buyer's insolvency alone will not operate as a stoppage, 373. 
 goods must be actually stopped, 373. 
 actual taking possession by seller not necessary, 373. 
 if possible, should be done, 373. 
 right justifies any mode not criminal, 373. 
 constructive possession sufficient when, 374. 
 
 how constructive possession obtained, 374. 
 notice to actual possessor of goods, 374. 
 if given to carrier's servant, 374. 
 to consignee's assignees sufficient, 374, n. 
 demand on vendee, while goods are in custom-house, insufficient, 
 374, n. 
 should have been on custom-house officers, 374, n. 
 notice given to principal, and not to carrier or servant, when sufficient to stop 
 
 goods, 374, and n., 375, n. 
 principal must use reasonable diligence, 375, n. 
 carrier's duty to comply whh notice properly given, 375. 
 if he does not, seller's right not defeated, 375. 
 buyer's possession thus obtained, unlawful, 375. 
 carrier responsible for any injury to seller, 375. 
 if buyer insolvent, and goods come to his assignee's hands, trover lies 
 
 by the seller, 375. 
 delivery to buyer, by mistake of carrier after notice, will not defeat 
 right, 375. 
 carrier should demand indemnity where both parties claim the goods, 375. 
 no legal obligation to give such, and rightful claimant would recover goods, 
 
 375. 
 but he would recover no costs or damages, if carrier warranted in withholding 
 
 goods until indemnified, 375. 
 if goods in custom house, how seller may take possession, 375. See ante, 
 
 III, E. 
 consignor may do by agent what he can personally, 376. 
 agent neglecting to stop goods when he has the power, liable, 376, n. 
 
 if agent acts without authority in stopping goods, effect of subsequent 
 
 ratification, 376. 
 question of "quo animo " he acts, 376, n.
 
 ixDEX. 775 
 
 STOPPAGE IN TUAl^iSlTV! — Continued. 
 
 ratification must take place when partj^ himself could lawfully have 
 done the act which he ratifies, 376, n. 
 on the continent of Europe stoppage unnecessary, 376. 
 in France law nearly like ours, 376. 
 
 vendor bound to indemnify insolvent's estate for advances, expenses, 
 etc. 376, 377, n. 
 STOEAGE, of provisions, sails, anchors, etc., 232. 
 STORES. See SuppUes. 
 
 STOEY, Mr. Justice, created American commercial law, 16, 17. 
 STOWAGE, of goods, if bad, when carrier liable, 185. 
 
 master's duty as to, 378. 
 STRANDING, voluntary. See General Average. 
 STATHAM, 5. 
 
 SUPERCARGO, master acting in the capacity of, 434, 435. 
 SUPPLIES, as appurtenant to ship, 72, n. 
 
 liability of part-owners for, 89-93. See Part-Owners, III. 
 
 owners for. See Owners. 
 bottomiy bond for. See Bottomry and Respondentia, II., F. 
 authority of master to bind owners by contract for, 378-440. See Mastei'. 
 SURVEY, to detei-mine unseaworthiness of ship, 65, 454, 455. 
 SURVIVORSHIP, no right of, among part-owners. See Paii- Owners. 
 
 T. 
 
 TENANTS IN COMMON, owners of ship are, 82, 83. 
 
 TENDER, of goods, when operating as delivery, 151, n. 3, 152. 
 
 THAMES, custom as to delivery of goods in the river, 158. 
 
 " THIRD OFF, NEW FOR OLD," not the rule of damages in collision, except, 205. 
 
 TITLE, to vessels. See Registry and Navigation Laws, and Sale of Ship. 
 
 TOWAGE, contribution for, 312. 
 
 TOW-BOATS, when common earners, 176, n. 
 
 when responsible for collision, 208, 209, n. 
 TRANSFER, of vessel. See Sale of Skip. 
 
 TRANSSHIPMENT, of goods when voyage is once broken up, 158-173. See Car- 
 riage of Goods, IV. 
 TROVER. See Actions. 
 TRUSTS, under the registry acts, 43. 
 
 U. 
 
 UNITED STATES, when forfeited vessel vests in, 37. 
 UNSEAWORTHINESS. See Sea- Worthiness. 
 USAGE. See Custom. 
 USURY. See Bottomry and Respondentia, II., B. 
 
 V. 
 
 VALIN, 6, 11. 
 
 VENDEE AND VENDOR. Sec Sale of Ship; Stoppage in Transitu. 
 
 VESSEL. See Ship. 
 
 VINNIUS, 6.
 
 776 INDEX. 
 
 VOYAGES. See Seamm, II. 
 
 distinct and double, 258. 
 
 agreement as to wages upon divided, 446, n. 3. 
 
 W. 
 
 "WAGES. See Seamen. 
 
 proceedings in rem for, under Illinois statute, 107, n. 
 
 enforcement of, from mortgagee of vessel, 113, n. See Owners. 
 WAR, annuls contract for carriage of goods, 274, 275. 
 WAREHOUSE, goods in ; constructive possession of vendor, giving right to stop in 
 
 transitu. See Stoppage in Transitu, III., B, E. 
 WARP, right of vessel to obstruct navigable stream by, 211. 
 
 WARRANTY, rules of, as applied to sale of ship, 69-71. See Sale of Ship, V. See 
 Representations. 
 
 of sea-worthiness, 238, 454, n. 1. See Carriage of Goods, I. 
 WATCH, duty of ship to keep. See Collision. 
 WHALING VOYAGE, not foreign voyage, 30. 
 
 not trading voyage, 444, n. 
 
 to specified port " and elscwliere," 444, n. 1, 
 
 hiring of sailors in, upon shares, 477. 
 
 what papers whale ship should take, 30, 31. 
 
 in whose name whale ship should be registered, 33. 
 WHARF, delivery of goods on, 153. See also Stoppage in Transitu. 
 WHARFAGE, liability of owners of chartered ship for, 251. 
 
 contribution for, 312. 
 WISBUY, laws of, 6, 10. 
 
 WOOD, for fuel, whether material-men have lien for, 494, 495. 
 WOMAN, sei-ving on board ship has rights and disabilities of sailor, 478. 
 WORKING DAYS. See Lag Dags. 
 WRECK, total, warranting sale of ship, 61, n. 
 
 sale by foreign court after, 68. 
 WRITERS, principal foreign, upon shipping, 3-17. 
 
 INDEX TO THE APPENDIX. 
 
 ACTS OF CONGRESS: 
 
 concerning Rilots ; 1789, Chap. IX. (1 U. S. Stats, at Large, 53), 505. 
 
 for the Punishment of certain crimes against the United States; 1790, Chap. 
 
 IX. (1 U. S. Stats, at Large, 112), 505-507. 
 for the Government and Regulation of Seamen in the Merchant Service ; 1 790, 
 
 Chap. XXIX. (1 U. S. Stats, at Large, 131), 507-512. 
 concerning Consuls and Vice-Consuls; 1792, Chap. XXIV. (1 U. S. Stats. 
 
 at Large, 254), 513-516. 
 concerning the Registry and Recording of Ships and Vessels ; 1792, Chap. I. 
 
 (1 U. S. Stats, at Large, 287), 516-531. 
 for enrolling and licensing Ships or Vessels to be employed in the Coasting 
 
 Trade and Fsherics, and for regulating the same; 1793, Chap. VIII. (1 U. 
 
 S. Stats, at Large, 305), 531-548.
 
 INDEX. 777 
 
 ACTS OF CONGRESS — ConUnued. 
 
 for the Relief and Protection of American Seamen; 179G, Chap. XXXVI. 
 (1 U. S. Stats, at Large, 477), 548-550. 
 
 for providing Passports for the Ships and Vessels of the United States; 1796, 
 Chap. XLV. (1 U. S. Stats, at Large, 489), 550, 551. 
 
 in addition to an Act, intituled "An Act concerning the Registering and 
 Recording of Ships or Vessels," and to an Act, intituled " An Act for en- 
 rolling and licensing Ships and Vessels employed in the Coasting Trade 
 and Fisheries, and for regulating the same;" 1797, Chap. VII. (1 U. S. 
 Stats, at Large, 498), 551, 552. 
 
 in addition to an Act, intituled " An Act concerning the registering and 
 recording of Ships and Vessels ; " 1797, Chap. V. (1 U. S. Stats, at Large, 
 523), 552. 
 
 for the Relief of sick and disabled Seamen; 1798, Chap. LXXVII. (1 U. S. 
 Stats, at Large, 605), 552-554. 
 
 in addition to " An Act for the relief of sick and disabled Seamen ; " 1799, 
 Chap. XXXVI. (1 U. S. Stats, at Large, 729), 554, 555. 
 
 to amend an Act intituled " An Act for the relief of sick and disabled Sea- 
 men," and for other purposes; 1802, Chap. LI. (2 U. S. Stats, at Large, 
 192), 555, 556. 
 
 providing for Salvage in case of recapture ; 1800, Chap. XIV. (2 U. S. Stats, 
 at Large, 16), 557-559. 
 
 supplementary to the " Act concerning Consuls and Vice-Consuls, and for 
 the further protection of American Seamen;" 1803, Chap. IX. (2 U. S. 
 Stats, at Large, 203), 559-562. 
 
 supplementary to the Act, intituled " An Act providing passports for the Ships 
 and Vessels of the United States ; " 1803, Chap. XVI. (2 U. S. Stats, at 
 Large, 208), 562. 
 
 in addition to the Act, intituled " An Act concerning the registering and re- 
 cording of Ships and Vessels of the United States," and to the Act, 
 intituled " An Act to regulate the collection of duties on Imports and Ton- 
 nage ; " 1803, Chap. XVIII. (2 U. S. Stats, at Large, 209), 562-564. 
 
 to repeal a part of the Act, intituled "An Act supplementary to the Act con- 
 cerning Consuls and Vice-Consuls, and for the further protection of Ameri- 
 can Seamen;" 1804, Chap. LI. (2 U. S. Stats, at Large, 296), 564. 
 
 to amend the Act, intituled "An Act concerning the registering and record- 
 ing of Ships and Vessels;" 1804, Chap. LII. (2 U. S. Stats, at Large, 
 296), 564, 565. 
 
 to amend the Act, intituled " An Act for the government and regulation of 
 Seamen in the Merchants' Service ; " 1805, Chap. XXVIII. (2 U. S. Stats, 
 at Large, 330), 565. 
 
 to prevent the issuing of Sea Letters, except to certain Vessels ; 1810, Chap. 
 XIX. (2 U. S. Stats, at Large, 568), 565, 5G6. 
 
 establishing Navy Hospitals ; 1811, Chap. XXVI. (2 U. S. Stats, at Large, 
 650), 566, 567. 
 
 in addition to the Act, intituled "An Act supplementary to the Act concern- 
 ing Consuls and Vice-Consuls," and for the further protection of American 
 Seamen ; 1811, Chap. XXVIIL (2 U. S. Stats, at Large, 651), 567. 
 
 respecting the Enrolling and Licensing of Steamboats; 1812, Chap. XL. (2 
 U. S. Stats, at Large, 694), 567, 568. 
 
 for the Regulation of Seamen on board the Public and Private Vessels of the 
 United States; 1813, Chap. XLII. (2 U. S. Stats, at Large, 809), 568-571.
 
 778 INDEX. 
 
 ACTS OF CONGRESS — Continued. 
 
 ■ for tlic {government of Persons in certain Fisheries; 181.3, Chap. II. (3 U. S. 
 Stats, at Large, 2), 571, 572. 
 laying a duty on imported Salt ; granting a bounty on Pickled Fish exported, 
 
 and allowances to certain Vessels employed in the Fisheries; 1813, Chap. 
 
 XXXV. (3 U. S. Stats, at Large, 49), 573-576. 
 to continue in force " An Act entitled. An Act, laying a duty on imported 
 
 Salt, granting a bounty on Pickled Fish exported, and allowances to certain 
 
 Vessels employed in the Fisheries;" 1816, Chap. XIV. (3 U. S. Stats, at 
 . Large, 254), 576, 577. 
 concerning the Navigation of the United States ; 1817, Chap. XXXI. (3 U. 
 
 S. Stats, at Large, 351 ), 577, 578. 
 supplementary to the Acts concerning the Coasting Trade; 1819, Chap. 
 
 XL VIII. (3 U. S. Stats, at Large, 492), 579. 
 to protect the Commerce of the United States, and punish the crime of Piracv; 
 
 1819, Chap. LXXVII. (3 U. S. Stats, at Large, 510), 580, 581. 
 in addition to, and alteration of an Act, entitled "An Act laying a Duty on 
 
 Imported Salt, granting a Bounty on Pickled Fish exported, and allowances 
 
 to certain Vessels employed in the Fisheries ; " 1819, Chap. LXXXIX. (3 
 
 U. S. Stats, at Large, 520), 581. 
 to provide for obtaining accurate statements of the Foreign Commerce of the 
 
 United States; 1820, Chap. XL (3 U. S. Stats, at Large, 541), 582-584. 
 more effectually to provide for the punishment of certain Crimes against the 
 
 United States, and for other purposes ; 1825, Chap. LXV. (4 U. S. Stats. 
 
 at Large, 115), 584-587. 
 to authorize the register, or enrolment and license to be issued in the name 
 
 of the President or Secretary of any incorporated Company owning a 
 
 Steamboat or Vessel; 1825, Chap. XCIX. (4 U. S. Stats, at Large, 129), 
 
 588. 
 to authorize the licensing of Vessels to be employed in the Mackerel Fishery ; 
 
 1828, Chap. CXIX. (4 U. S. Stats, at Large, 312), 588, 589. 
 to provide for the apprehension and delivery of Deserters from certain Foreign 
 
 Vessels, in the ports of the United States; 1829, Chap. XLI. (4 U. S. 
 
 Stats, at Large, 359), 589. 
 to authorize Surveyors, under the direction of the Secretary of the Treasury, 
 
 to enroll and license Ships or Vessels to be employed in the Coasting Trade 
 
 and Fisheries; 1830, Chap. XIV. (4 U. S. Stats, at Large, 372), 590. 
 to repeal the charges imposed on Passports and Clearances ; 1831, Chap. XX. 
 
 (4 U. S. Stats, at Large, 441), 590. 
 to regulate the Foreign and Coasting Trade on the Northern, North-eastern, 
 
 and North-western frontiers of the United States, and for other purposes ; 
 
 1831, Chap. XCVIII. (4 U. S. Stats, at Large, 487), 590, 591. 
 concerning Vessels employed in the Whale Fishery; 1831, Chap. CXV. (4 
 
 U. S. Stats, at Large, 492), 591, 592. 
 in amendment of the Acts for the punishment of offences against the United 
 
 States ; 1835, Chap. XL. (4 U. S. Stats, at Large, 775), 592, 593. 
 in addition to the Act of the twenty-fourth of May, one thousand eight hun- 
 dred and twenty-eight, intitled " An Act to authorize the licensing of Ves- 
 sels to be employed in the Mackerel Fishery;" 1836, Chap. LV. (5 U. S. 
 
 Stats, at Large, 16), 593, 594. 
 to provide for the enlistment of Boys for the Naval Service, and to extend the 
 
 term of the enlistment of Seamen; 1837, Chap. XXI. (5 U. S. Stats, at 
 
 Large, 153), 594, 595.
 
 INDEX. 
 
 779 
 
 ACTS OE CO^GIiESS— Continued. 
 
 concerning Pilots; 1837, Chap. XXII. (5 U. S. Stats, at Large, 153), 595. 
 to provide for the better security of the Lives of Passengers on board of Ves- 
 sels propelled in whole or in part by Steam ; 1838, Chap. CXCI. (5 U. S. 
 Stats, at Large, 304), 595-598. 
 to cancel the bonds given to secure the duties upon Vessels and their Car- 
 goes, employed in the "Whale Fishery, and to make registers lawful papers 
 for such Vessels ; 1840, Chap. VI. (5 U. S. Stats, at Large, 370), 599. 
 in addition to the several Acts regulating the Shipment and Discharge of Sea- 
 men, and the Duties of Consuls ; 1840, Chap. XL VIII. (5 U. S. Stats, at 
 Large, 394), 599-603. 
 supplementary to an Act, entitled " An Act to establish the Judicial Courts 
 of the United States," passed the 24th of September, 1789 ; 1842, Chap. 
 CLXXXVIII. (5 U. S. Stats, at Large, 516), 603, 604. 
 to establish and regulate the Navy Ration ; 1842, Chap. CCLXVII. (5 U. S. 
 
 Stats, at Large, 546), 604, 605. 
 amendatory of "An Act for the Relief of Sick and Disabled Seamen;" 
 
 1843, Chap. XLIX. (5 U. S. Stats, at Large, 602), 605. 
 to modify the Act, entitled " An Act to provide for the better security of the 
 Lives of Passengers on board of Vessels propelled in whole or in part by 
 Steam," approved July 7, 1838; 1843, Chap. XCIV. (5 U. S. Stats, at 
 Large, 626), 606, 607. 
 to amend the Act, entitled "An Act to provide for the Enlistment of Boys 
 for the Naval Service, and to extend the Term of Enlistment of Seamen ; " 
 1845, Chap. XVII. (5 U. S. Stats, at Large, 725), 608. 
 extending Privileges to American Vessels engaged in a certain mentioned 
 Trade, and for other pui-poses ; 1848, Chap. XLVIII. (9 U. S. Stats, at 
 Large, 232), 608, 609. 
 to authorize the Secretary of the Treasuiy to license Yachts, and for other 
 
 purposes; 1848, Chap.' CXLI. (9 U. S. Stats, at Large, 274), 609, 610. 
 regulations to be observed by Vessels, Steamboats, etc., navigating the 
 Northern or North-western Lakes; 1849, Chap. CV. (9 U. S. Stats, at 
 Large, 382), 610. 
 to provide for Recording the Conveyances of Vessels, and for other purposes ; 
 
 1850, Chap. XXVII. (9 U. S. Stats, at Large, 440), 610-612. 
 making Appropriations for the Naval Service for the year ending the thirtieth 
 day of June, one thousand eight hundred and fifty-one, and abolishing 
 flogging in the Navy and on board Vessels of Commerce; 1850, Chap. 
 LXXX. (9 U. S. Stats, at Large, 514), 612. 
 to limit the Liability of Ship-Owncrs, and for other purposes; 1851, Chap. 
 
 XLIII. (9 U. S. Stats, at Large, 635), 613, 614. 
 to amend An Act, entitled " An Act to provide for the better security of the 
 Lives of Passengers on board Vessels propelled in whole or in part by 
 Steam," and for other purposes; 1852, Chap. CVI. (10 U. S. Stats, at 
 Large, 61), 615-634. 
 to establish certain Post-Roads, and for other purposes ; 1852, Chap. CXIII. 
 
 (10 U. S. Stats, at Large, 140), 634, 635. 
 authorizing the Secretary of tlie Treasury to issue Registers to Vessels in cer- 
 tain cases ; 1852, Chap. IV. (10 U. S. Stats, at Large, 149), 635. 
 compensation to Seamen sent home as Witnesses; 1853, Chap. LXXX. (10 U. 
 
 S. Stats, at Large, 168), 636. 
 to supply Deficiencies in the i* ppropriations for the Service of the fiscal year
 
 780 INDEX. 
 
 ACTS OF COl^G^ESS — Continued. 
 
 ending the thirtieth of June, one thousand eight hundred and fifty-three ; 
 
 1853, Chap. XCVI. (10 U. S. Stats, at Large, 182), 636. 
 to remodel the Diplomatic and Consular Systems of the United States; 1855, 
 
 Chap. CXXXIII. (10 U. S. Stats, at Large, 624), 636-638. 
 to regulate the Carriage of Passengers in Steamships and other Vessels ; 
 
 1855, Chap. CCXIIL (10 U. S. Stats, at Large, 715), 639-647. 
 authorizing the Secretaiy of the Treasury to change the Names of Vessels in 
 
 certain Cases; 1856, Chap. IV. (11 U. S. Stats, at Large, 1), 647. 
 to regulate the Diplomatic and Consular Systems of the United States, and 
 
 to provide for the Discharge and Desertion of Seamen; 1856, Chap. 
 
 CXXVIL (11 U. S. Stats, at Large, 59), 647-650. 
 
 PILOTAGE REGULATIONS: 
 
 Pilotage Eegulations for the Port of New York, (passed by the Legislature, 
 
 June 28, 1853, April 11, 1854, and April 4, 1857), 651-658. 
 By-Laws of the Commissioners of Pilots for the port of New York, 658, 660. 
 Eates of pilotage for the port of New York, 661. 
 General Pilotage Kcgulations of the State of Massachusetts, 662-664. 
 Pilotage Regulations of the harbor of Boston (viz. all places or landings ac- 
 cessible to vessels from sea included between Nahant Rock on the north, 
 and Point Alderton on the south), 664-668. 
 Rates of pilotage for the port of Boston, 666. 
 Rates for division of earnings among Pilots, 668. 
 
 Pilotage Regulations for Nantucket Shoals, Vineyard Sound, and ports bor- 
 dering thereon. Buzzard's Bay and harbors bordering thereon, 668-671. 
 Pilotage Regulations and Fees for — 
 Provincetown, 671, 672. 
 Plymouth, 672. 
 Newbury port, 672. 
 
 Rockport, Lane's Cove, and Annisquam, 672. 
 Gloucester, 672, 673. 
 Salem and Beverly, 673, 674. 
 Marblehead, 674. 
 Taunton River, 674, 675. 
 ♦ Merrimack River and Harbors, 675. 
 
 Dorchester and Neponset, 675. 
 Hingham, Weymouth, and Quincy, 675. 
 Charles River, 676. 
 Rules and Regulations for the government of Pilots (revised and adopted by 
 the Supervising Inspectors, October 17, 1857, in compliance with Act of 
 Congress of August 30, 1852, § 29; to take effect January 1 1858,), 677-683'. 
 Rule 7 ; Steamer's lights, to prevent collision at niglit, 679, 680. 
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