It behoves him, then, so to be prepared as to be able to secure his own rights and to protect those of others for whom the law looks upon him as agent. The condition of a master-mariner, in reference to his interest and authority, is well described by an old author : ‘A master of a ship is no more than one who, for his knowledge in navigation, fidelity, and discretion, hath the government of the ship committed to his care and management; and by the common law-by which properties are to be guided he hath no property either general or special by the constituting of him a master; yet the law books look upon him as an officer who must render and give an account for the whole charge when once committed to his care and custody, and, upon failure, to render satisfaction. And, therefore, if misfortunes happen, if they be either through negligence, wilfulness, or ignorance of himself or his mariners, he must be responsible. * The author takes for granted that the master is in possession of his certificate of competency. orders for his funeral, and performs the last sad ceremony of committing the body to the deep. 'The shipmaster is also supposed to be thoroughly acquainted with the maritime law of his country, and with the common law of other countries; and if either he or his ship gets into difficulties, and he comes not out of them with flying colours, the loss of his situation, and very frequently his wages, must pay the forfeit of his ignorance on that head. 'Then, he is also supposed to be a merchant, and is frequently entrusted with the buying and selling of ships' cargoes abroad. He transacts mercantile business in all parts of the globe, drawing charter-parties, bills of lading, &c.; all this is required of the merchant captain. The shipmaster is supposed to be a kind and humane man, slow to anger, and of just command of temper; he must, on no account, ever allow himself to be so irritated as to lift his hand (be the provocation ever so great) against one of his crew. So sure as he does, the poor ill-treated, and insolent sailor gets public sympathy and a reward for his conduct; while the brutal captain gets either a heavy fine, or imprisonment, or both, and public censure for his conduct, without any consideration as to the heavy responsibility, anxiety, and frequent difficulty of governing unruly crews. Notwithstanding all this, the captain must make his passage, and transact his business, in all climates, and in all weather; and very little of the credit he deserves falls to his share.' *Molloy, Book 2, Chap. 2, Section 1. A master-mariner is very much a free man as to the character or class of vessel he chooses to command; but, once captain, he is tied to specific duties. A master who is about to engage with the owner of a vessel on a foreign voyage, should make a point to have a clear written agreement made for his services, so as to show the time for which he is bound, the precise amount of pay, and how and when and from what sources payable, parts of the world he can be compelled to go to, and any other special and particular matters which are likely to arise. This is strongly advised, because masters in foreign ports sometimes get unsatisfactory or complaining communications from owners, and are attempted to be dispossessed, causing them to apply to the consuls, who find it a difficult duty to advise or direct where the master has not a clear agreement showing his rights and his owner's liability and duty towards him. If a master has gone one voyage under a written agreement, and is continued verbally in the service of the owner, the law will presume that the terms of engagement for one voyage extended to a succeeding voyage performed without a new agreement. * A master should understand he is the person who is put in charge as well as in command, and an agent, with ample powers, to represent the owner of the ship in the management of the concerns committed to him. Such owner is liable for engagements entered into by the master for the necessary and usual employment of the vessel, and for acts which he may do in the character of master within what is thus necessary and usual. If the owner himself appears, and makes a special contract regarding the service of the ship, the master cannot substitute another on his own authority; because, at the best, he is but an agent, and an agent cannot control, affect, or supersede the act of his principal. * The Gananoque, 1 Lushington's Admiralty Reports, 448. In this part of the present work it will be taken for granted that the master has engaged his crew and entered into an agreement with them before a shipping master, an agreement usually known as shipping articles, pursuant to the provisions of the Merchant Shipping Act, 1854, Sections 149, 150. As men may desert, die, or otherwise pass away, fresh articles may have to be entered into when the vessel has reached, or during the period of her being in, a foreign port, where her outward cargo will be discharged, we have therefore in Part III. given some practical directions upon this point. No man should, in the present, guard himself against future circumstances more than the master of a foreigngoing ship. And this he may mainly do, if, at the start of his voyage, he knows his liabilities. Let him understand that he is personally bound for his contracts and for the wrongs he may commit, although, under the circumstances, he may consider he is doing his duty by his owners. A first duty is to see that his vessel is tight, staunch, and fitted in all respects, for the purpose of carrying those goods to the place to which he undertakes to carry them. He is bound to see that the crew are sufficient in point of number, skill, and efficiency for the contemplated voyage. He is bound to take a pilot whereever usage or the laws of the country require it. Thus, he is liable on charter-parties and bills of lading signed by himself. Goods taken on board must be delivered, notwithstanding any cause which does not come within the meaning of an act of providence or within the exception provided for in the bill of lading. If they are lost or injured by any negligence or unskilfulness of the master or crew, he is personally responsible as well as the * Morse v. Slue, 1 Ventris's Reports, 238; Boucher v. Lawson, Reports time of Lord Hardwicke, 183; Trent Navigation v. Wood, 3 Espinasse's Reports, 127. * So, also, the master will be liable for repairs and supplies ordered by himself abroad, unless it appears by the contract that credit was given only to the owner. And he is liable for the wages of the seamen and for pilotage. A contract may, as is intimated, be made upon the exclusive credit of the owner. If the master has given his own special promise, then the owner is not liable; and, taking the converse of this, where there is a special promise by the owners, the master is discharged from any obligation. The master may, by virtue of his general authority, order necessary repairs, or make contracts within the ordinary scope of the ship's employment, upon the exclusive liability of the owner; disclosing his name, and stating that he, himself, is not responsible. And where a master intends to act solely as agent of his owner, so as to make the latter only responsible, he should sign the owner's name, and then his own as agent. The law considers that seamen have a three-fold security for their wages-the owner, the master, and the ship. Besides being personally liable for his own negligence, short-comings, and wrongs, he is, also, liable for those of his officers and crew, although no personal fault or negligence is imputable to him. The rigour of the law in this respect, arises from reasons of public policy, and does not admit of any distinction, whether the officers and crew are appointed by the master himself, or by the owner. But the master is not liable for the wilful trespasses of his crew, not done in the course of their duty or by his commands. ‡ Owner and master of any ship or vessel, engaged in a general freighting business, are liable as common carriers. It will make no difference, in any case, that the cargo was all furnished by one person, provided the vessel was * Rich v. Coe, Cowper's Reports, 637; `Garnham v. Bennett, 2 Strange's Reports, 816. † Abbott on Shipping, Part 4, Chapter 4, Section 1, Note 2; The Margaret, 3 Haggard's Admiralty Reports, 238. Boucher v. Neidstrom, 1 Taunton's Reports, 568. open to all persons, indifferently, who offered freight for her port of destination. Neither will it make any difference that the vessel is employed in carrying a particular kind of goods, if she is open to all persons offering goods of that description. Still, if the vessel is not engaged in the transportation of merchandise for all persons indifferently, but is employed exclusively by one or more persons (as, for instance, under charter-party), then the owners are not liable as common carriers. So, if the owner of a ship, employing her on his own account, should take merchandise on board for freight from a particular individual, for his special accommodation, he would not be liable as common carrier. In such case, the owner and master are liable only as private or special carriers, to the exercise of reasonable care and diligence for the safety of the goods. But as common carriers they are liable for all losses not occasioned by the act of God, the public enemy, or by some excepted perils enumerated in a bill of lading. The master must be careful that no want of repair exists in the ship; that the pumps are in proper working order; that the vessel is supplied with her full complement of anchors, cables and sails; and that the standing and running rigging are complete and in good working order. A want of repair in any of these, or their unserviceableness (as where the best bower anchor and the cable of the small anchor were defective, or where the maintop gallant sail and studding sails, used in light weather, were rotten and almost unserviceable, although the other sails used in stormy weather were good), will render the vessel unseaworthy and forfeit the insurance, besides subjecting the master, as well as the owners, to damages. A master must not set sail nor proceed in a fog or in thick weather, for even having a licensed pilot on board will not protect him or his owners from liability or damage that may occur in such a case.† * * Lees on Shipping, &c., 65, 5th edition. † The Girolamo, 3 Haggard's Admiralty Reports, 175. |