페이지 이미지
PDF
ePub
[graphic]

of the sea. The rights in the waters must be so exercised that all may fairly participate in them, and that the exercise of the paramount may not unnecessarily disturb or interfere with the enjoyment of the subordinate rights.

683. In the broad sea, in the proper channels, in the best anchorages and most convenient mooring-grounds, at the proper landing-places, the right of the mariner is supreme, and all inferior rights must, when necessary, yield. In fairly pursuing his voyage, in necessarily anchoring and mooring, in loading and unloading, landing from and boarding his vessel, the navigator is not answerable for damage to the nets or implements of the fishermen, or the disturbance of the fish, although in an exclusive fishery. But even in such places he must not trespass unnecessarily on the inferior rights, or inflict on others any injury beyond that which his occasions may require. Anon. 1 Camp. 517.

684. All the water-rights must be enjoyed according to their relative general, local, and personal importance, in the places and at the times most appropriate and convenient, and so that they may be exercised in harmony without confusion, interruption, or conflict, and in due subordination to each other.

685. As incidental to the right of navigation, the mariner has a right to use the bed and shore of the sea, and of the navigable river, to anchor, to tow, to drag, and push his craft, and to load from, and to land and unload, and for those purposes to pass over convenient portions of the shore. It is as common as the use of the water, and can be restrained or restricted only by the sovereign authority, by appointing ports and other places convenient for those purposes. Hale, 78; Ang. 178.

686. The right indeed of drawing boats, whether for profit or pleasure, and of travelling on foot, or even in carriages, along the sea-shore, is a natural right. It seems to be established by common practice throughout this realm. However, it was to some extent controverted by three of the

judges who decided Blundell v. Catterall,-a decision in which we cannot concur.

687. The distinction between the shore and the bank must be carefully observed. The former is public property, in which private subordinate rights may exist, but the publie is paramount; the latter is private property, subject only to such public rights as have been established by custom, prescription, or dedication, or aecorded by natural or municipal law. The mariner has then the right to trade and travel on, and make any proper use of, the shore; but he has no such right unless acquired by custom, or conceded by the owner, on the bank of the river or the sea.'

688. In England, he is by custom, and, in some cases, by Act of Parliament, entitled to tow and drag bis boat or vessel along ancient paths, on one or other or both sides on the banks of most of the navigable rivers. Ball v. Herbert.

689. This right has sometimes been invaded by exactions, in some cases charged with a reasonable toll. See the Acts already cited as to the Severn, the 14 Geo. III. c. 91 and 24 Geo. 111. c. 8, as to the Thames, and the 23 Geo. III. oc. 41 and 48, as to the Trent; also Zangers v. Whiskard, as to the Lea, and Ball v. Herbert.

690. It will appear in subsequent pages that in case of shipwreck considerable privileges are accorded to the distressed mariner on the banks of the sea.

691. According to the Roman law, which originated in countries with an almost tideless sea, and where there was not that area which properly constitutes a sea-shore, the mariner was entitled to fasten his vessel to the trees on the banks of the sea or the stream, and to unload the cargo on those banks. A similar right appears to have been recog. nized in this country in the time of Bracton; but it was probably little needed and little used, and seems no longer to exist, except possibly in a few places where a usage of that character bas prevailed.

692. In case of necessity, for shelter or refuge, to avoid

or escape from pirates, shipwreck, or the storm, to obtain water or assistance, the mariner, whether subject or foreigner, has the right to run into any inlet or cove, and to land and otherwise avail himself of the shore; and, subject to the obligation to avoid all evitable injury,ạnd of making a reasonable compensation, to land and make other necessary use even of the private bank. (Hale, 51, 53.) It is a natural incident of the neighbourhood of such property to the sea. This doctrine has been disputed in a modern case, on the notion that when there is no fixed compensation there can be no right dependent on making compensation. But such objection is inadmissible even by the mere lawyer, far less by the jurist. There are cases of right dependent on compensation, with a right of action dependent on the sufficiency of the tender of amends. When the compensation is for that which cannot be the subject of prospective ascertainment, reason and the law must leave it to be determined by competent persons, and leave him who fails to do justice, or attempts an extortion, to bear the expense.

CHAPTER III.

CONDUCT AND RESPONSIBILITY.

693. THE SHIP-hugest of moving creatures, invested with so many rights, fraught with so much passion and power, requiring so much discretion for her conduct, charged with so many responsibilities, and for which nations are responsible,-must have a country and a name, a home in which inquiry may be made for her, an identification by which she may be known. From Argo downwards, she has been baptized.

694. In the periods of navigation when the Cinque Ports declared war against the Hanse Towns, and Scarborough

against the Scot; when Antwerp concluded treaties of peace with England's king, and Southampton with the Duke of Flanders and the Castilian towns; when Fowey, from the coves of Cornwall, sent forth more armed vessels than London and Dover combined, and the first stipulation in their conventions was, that the ports should become responsible for the vessels which they permitted to depart, it was necessary that the rover should be known. In some countries, the owner of an armed vessel is still bound to give security for her conduct before she leaves her port.

695. RESPONSIBILITY.-Her responsibility is measured by her duties, and her civil responsibility is to be answered by her freight and her body, to the extent of every fragment floating on the waters, or rescued from destruction when wrecked upon the shore.

696. She may be assumed to be endowed with the will and intentions of the owners, and to carry with her the authority to be inferred from her destination, her purposes, and her papers, which may be regarded as her will.

697. She is responsible, and in some respects her owners are further responsible, for her personal condition and conduct, for the conduct of her owners, of her master, her officers, her helmsman, and every member of her crew; except when wrested by the officers and crew from the duties sbe has undertaken, and converted into an involuntary engine of violence, of injury, or crime.

698. She is responsible for the observance of those duties which are imposed on her by the law maritime and the law of her own country, and the municipal laws which govern the national waters to which she may resort.

699. As to some of those duties, she is responsible to the state for mere non-observance, although no injury may ensue, and liable to penalties for transgression in mere neglect of the law.

700. But she is responsible to other persons and vessels only for the breach or non-observance of a duty, when it is

« 이전계속 »