and most conducive to health and comfort, of which hours and manner of distribution, due and sufficient notice has to be given. If the master should wilfully fail to furnish and distribute such provisions, cooked as aforesaid, he will be deemed guilty of a misdemeanour, and upon conviction (before any circuit or district court of the United States) be fined not more than one thousand dollars, and be imprisoned for a term not exceeding one year. The enforcement of this penalty is not to affect the civil responsibility of the master and owners to such passengers as may have suffered from the default. Discipline and cleanliness. The master is to maintain good discipline, and such habits of cleanliness as will tend to the preservation and promotion of health; and to that end he is to cause such regulations as he may adopt for the purpose to be posted up before sailing in a place accessible to passengers, and keep it up during the voyage. And it is made his duty to cause the apartments occupied by passengers to be kept at all times in a clean, healthy state, and the decks and all parts of the apartment are to be so constructed that they can be thoroughly cleaned. He is also to provide a safe, convenient privy or watercloset, for the exclusive use of every one hundred passengers. And when the weather is such that the passengers cannot be mustered on deck with their bedding, it is made the duty of the master to cause the deck occupied by them to be cleaned with chloride of lime, or some other equally efficient disinfecting agent, and also at such other times as he may deem necessary. A violation or neglect as to houses or booby hatches, or ventilators, or cambooses or cooking ranges with the houses over them, will subject master and owner to forfeiture and payment to the United States of two hundred dollars for each violation or neglect; and of fifty dollars for each neglect or violation of discipline or habits of cleanliness. These penalties are made recoverable in any circuit or district court of the United States, within the jurisdiction of which the vessel may be about to depart, or at any place within the jurisdiction of such courts, wherever the owner or master of such vessel may be found. All the above provisions as to space are made applicable to steam vessels.* 16. AVERAGE. It may be that on the voyage, there has had to be a sacrifice of some portion of cargo or part of the ship for the general good, and for the safety of the remainder of the merchandise. In such a case may come a claim for contribution from all parties; and this is called average -general average. There is also particular average, which means damage incurred by or for one part of the concern, which must be borne by that alone, as the loss of an anchor or the starting of a plank. The working out of general average is generally done by average adjusters, who are to be found in all the leading sea-ports. Whatever the master of a ship does in distress for the preservation of the whole, as in cutting away masts or cables, or throwing goods overboard to lighten his vessel, is brought into general average; and incidental things are to be included among those to be contributed for, as the following:-Towing the vessel into port; pilotage; port charges; health officer's fees; light money; cutting a passage in the ice for the vessel when she has become frozen up in a port of distress; wharfage; discharging and reloading the cargo; surveys; coopering casks; storage of cargo; hire of anchors, cables, and boats, for temporary purposes; wages to people hired to guard the property, or to pump the ship; brokerage; temporary repairs; wages of men employed in order to promote the prosecution of the voyage, otherwise than in repairs belonging to * Act of Congress of March 3, 1855, Sections 3-10; 10 U.S. Statutes at large, 715. particular average; postage and telegraph despatches; fees to notaries; adjuster's charge; commissions on advances, by commission merchants or agents, as far as the same are for general average purposes; interest, whether ordinary or marine; wages and provisions from the departure from the course during delay, and until the ship is again ready for the port of destination.* Freight pending at the time of the sacrifice contributes also to the average.† The principle is, that the owner of property sacrificed must be placed in the same condition in which he would have been if not his property, but that of another party, had been sacrificed. The average ought to be adjusted at the place of the ship's destination, or delivery of her cargo. The master is not compelled to part with the possession of goods before the sum contributable in respect to them is paid.§ In the case of a general ship, where there are many consignees, it is not uncommon for the master, before he delivers the goods, to take a bond from the different merchants for payment of their portions of the average when the same shall happen to be adjusted. 17. BOTTOMRY. A vessel arriving in a foreign port may require repairs and supplies before she can proceed further on her voyage, and money has sometimes to be taken up for the purpose under what is called bottomry. This term, bottomry, amounts to a contract, in the nature of a mortgage of the ship, on which the owner borrows the money for the purposes referred to. He thereby pledges the keel or bottom of the ship, a part, in fact, for the whole, as a security for the repayment; * Dixon's U.S. Law of Shipping, 491. § Simonds v. White, 2 Barnwell and Cresswell's Reports, 805. and it is stipulated that if the ship should be lost in the course of the voyage, by any of the perils enumerated in the contract, the lender also shall lose his money; but if the ship should arrive in safety, then he shall receive back his principal, and also the interest agreed upon-which is generally called marine interest-however this may exceed the legal rate of interest. Not only the ship and tackle, if they arrive safe, but also the person of the borrower is liable for the money lent, and the marine interest.* This contract of bottomry should specify the principal lent and the rate of marine interest agreed upon; the subject on which the loan is effected; the names of the vessel and of the master; those of the lender and borrower; whether the loan be for an entire voyage; for what voyage; for what space of time, and the period of repayment. Bottomry, as it will be seen, differs materially from a simple loan. In a loan the money is at the risk of the borrower, and must be paid at all events; but in bottomry, the money is at the risk of the lender during the voyage. On a loan, only legal interest can be received; but upon bottomry, any interest which the parties agree upon may be reserved. The ship, and even her freight, are the first things to be hypothecated. But where the master cannot obtain funds on a pledge of either, he has power to bind the cargo, which has to be necessarily sold or exchanged in the course of the voyage; and then the term is respondentia—taking up money at respondentia. The right of a master to take up money on bottomry is a restricted right, arising out of unforeseen necessity, and only to be exercised for the general interest of all parties, in the protection and preservation of the ship and cargo. 1. This necessity must arise in the course of, and for the purpose of, continuing the voyage. 2. It must be generally, at least, in a foreign port, where repairs and supplies have become necessary. 3. The master's power * 2 Blackstone's Commentaries, 457, 458. of borrowing money must arise on account of his having no other credit or means of obtaining money on the credit of the property.* The two necessities must be present, namely, the one of obtaining repairs or supplies, and the other, an impossibility of getting them in any other way than by bottomry.† A substituted master, put in by consignee after death of the regular master, has power to borrow on bottomry.‡ It may be well here to show what are considered as necessary repairs for which a master may bind his owner; and we cannot do better, with that view, than by giving an extract from a decision made by the American jurist, Justice Story: In relation to what are necessary repairs, in the sense of the law, for which the master may lawfully bind the owner of the ship, I have not been able, after a pretty thorough search into the authorities and text writers, ancient and modern, to find it anywhere laid down in direct or peremptory terms that they are 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 repairs. The general formulary of expression found to be laid down, is simply that the repairs are to be necessary, without in any manner pointing out what repairs are, in the sense of the law, deemed necessary, or what constitutes the true definition of necessity. But a thorough examination of the common text writers, ancient as well as modern, will, as I think, satisfactorily show that they have all understood the language in a very mitigated sense, and that necessary * The Prince of Saxe Cobourg, Ladd, 3 Haggard's Admiralty Reports, 392. + The Hersey, Grimwood, Ibid. 408; Seares v. Rahn, 3 Moore's Reports, 1; Gore v. Gardiner, Ibid. 79. The Tartar, 1 Haggard's Admiralty Reports, 1; The Rubicon, 3 Ibid. 9 ; The Alexander, 1 Dodson's Admiralty Reports, 278. |