Fictitious papers and dangerous goods. Port dues. The master should in no case carry any fictitious or colorable papers; neither should he take on board prohibited or unlawful goods, whereby the cargo may be made liable to seizure, or the policies of insurance may be rendered void (a). The Merchant Shipping Act, 1873 (b), contains restrictions against the shipping of dangerous goods-such as aquafortis, gunpowder, petroleum and other like substances, and attaches a penalty to their misdescription. The master or owner is empowered to refuse to take such goods on board, and may require suspected packages to be opened, and in certain cases may throw them overboard. The master must pay all harbour, port, or other dues (c). He is, in general, personally liable for them (d); and, where there is a custom to that effect, it would seem that the anchor and sails may be distrained for port dues (e). descriptions of the goods stowed loose (a) Molloy, B. 2, c. 2, ss. 7, 9. It tions of war may by Order in Council (b) The M. S. Act, 1873, ss. 23 to 27. 43 Vict. c. 47), and Appendix, "Forms," 49, 49A, 49B, and "Orders in Council," pp. 25-29. (c) The 48th section of the Harbours, Docks and Piers Clauses Act, 1847 (10 Vict. c. 27), provides that the proper officer of Customs for the district within which any harbour, dock or pier to which the provisions of that Act have been made applicable, may, with the consent of the Commissioners of Cus. toms, refuse to receive any entry, give any clearance, or take any report inwards or outwards of any ship liable to pay the rates imposed by the special Act by which such harbour, dock or pier is regulated unless a certificate of the payment of such dues is produced or due security shown to have been given for such payment. (d) Molloy, B. 2, c. 2, s. 9; Mayor of London v. Hunt, 3 Lev. 37; Vinkerstone v. Ebden, 1 Salk. 248. See, as to the meaning of the word "owner" in a charter granting dues payable by owners, The Master Pilots of Newcastle v. Hammond, 4 Exch. 285. See also The Ribble Navigation Company v. Hargreaves, 17 C. B. 385, where a somewhat similar question arose under a local statute. (e) Tinkerstone v. Ebden, 1 Salk. 248. A power to distrain the ship, her tackle, apparel and furniture, is given by statute in the case of any rates imposed under acts incorporated with the Harbours, Docks and Piers Clauses Act, 1847. See the 10 Vict. c. 27, s. 43. The necessary Custom House documents having been obtained, Lading cargo. the next duty which devolves upon the master is to load and stow the cargo entrusted to him (f), for which purpose he must be prepared with the necessary tackle for shipping, and with dunnage (g), or other requisites for properly stowing it. If any goods are injured by his or his agent's negligence whilst they are being shipped, he is liable () to his owners, and also directly to the shipper (). It sometimes occurs that an agent specially appointed by the shipper, called a steradore (j), is employed to load the cargo, in which case the master is ordinarily discharged from responsibility, unless he personally interferes (k). In a case where by the terms of the charter- Stevadore. party the stevadore was to be appointed by the charterer, but to be paid by and to act under the orders of the master, it was held, that the master was not liable for the negligence of the stevadore; the stevadore not being the agent or servant of the master, the control by the master being given only with a view to the safety and trim of the ship (7). shipment. In the absence of custom or agreement to the contrary, goods Delivery of intended for shipment are to be delivered to the master alongside goods for the ship, but if the master receives goods at a wharf or quay, or in a boat belonging to the ship, he becomes responsible for their safe custody (m). Where goods going coastwise had, according to custom, been delivered to the mate of the vessel on the wharf, it was held that the responsibility of the ship had attached, although it did not appear that they had ever reached her (»). (f) As to the master's duty to give notice that he is ready to load, see Stanton v. Austin, L. R., 7 C. P. 651. As to the stowage of grain cargoes, see the M. S. Act, 1876, s. 22, and supra, p. 37. (g) 1 Beawes, Lex Merc. 163. Dunnage consists of loose wood or other matters placed at the bottom of the hold above the ballast to stow cargo upon. Dana's Seaman's Manual, p. 94. (h) Laws of Oleron, art. 10; Goff v. Clinkard, cited in Dale v. Hall, 1 Wils. 282. (i) See Story on Agency, §§ 314318, and the observations of Willes, J., in Blackie v. Stembridge, 6 C. B., N. S. 894. () In the Consolato he is called "Stibador," and in modern Spanish "Estibador," from "Estivar," to stow. (k) Swanston v. Garrick, 2 L. J., N. S., Exch. 525. (1) Blakie v. Stembridge, 6 C. B., N. S. 894; affirmed Cam. Scacc., ib. 911. FREIGHTMENT. (m) Molloy, B. 2, c. 2, s. 2. (n) Cobban v. Downe, 5 Esp. 41. See also The British Columbia Company v. Nettleship, L. R., 3 C. P. 499. The rule of the Basilican Constitutions (the Maritime Code of the Western Empire in the 9th Century), was, that the master was liable for things either given to him personally on shore, or in the ship, or received by a sailor with his consent, express or implied. See 1 Pardessus, Lois Maritimes, 173. Mate's receipt and bill of lading. Letters. Care of cargo. Where goods are delivered by the merchant to a wharfinger or lighterman for shipment, questions often arise as to when his responsibility determines and that of the master commences. This depends upon the express contract between the parties, or upon the general usage subject to which they have contracted. Upon the delivery of goods on board, the usual course is for the mate to give a receipt to the shipper, which is delivered to the master on his giving a bill of lading, the effect of which is to make him hold the goods on account of the person named therein, or his assigns, as the case may be. A master should not sign bills of lading until the receipt has been returned (0), or, where no receipt has been given, until he has received authority from the shipper to sign them; since he may otherwise be under a double responsibility, on the one hand to the shipper of the goods, and on the other to the holder of the bill of lading (p). Indeed, now by statute, every bill of lading in the hands of a bonâ fide holder for value is conclusive evidence against the master of the shipment of the goods, unless the holder had notice of the error, or the master can show that it was caused without any default on his part, by the fraud of the shipper or of the holder, or of some person under whom he claims (q). The master has no authority to bind his owners by signing bills of lading for goods which he has not received, and which have not been shipped (»). The master is bound to receive on board letters tendered to him for conveyance by the postmaster-general (s). The cargo being once on board, the master is bound to take all possible care of it, both as regards protection from thieves and also against injuries from weather and the like. Subject to the protection afforded by the Merchant Shipping Act, 1854, (0) Craven v. Ryder, 6 Taunt. 433; MENT. (p) Ruck v. Hatfield, 5 B. & A. 632; Gosling v. Birnie, ubi sup. (2) The 18 & 19 Vict. c. 111, s. 3, Appendix, p. clxxvi. As to the effect of the words " 'weight, contents and value unknown," and also of a signature to a bill of lading by the agent of a shipowner, see Jessel v. Bath, L. R., 2 Ex. 267; and Lebeau v. General Steam Navigation Co., L. R., 8 C. P. 88; The Peter der Grosse, 2 P. D. 414; and post, Chap. VI., CONTRACT OF AF FREIGHTMENT. (r) McLean v. Flemming, L. R., 2 Scot. Appeals, 128; and see post, Chap. VI., CONTRACT OF AFFREIGHT MENT. (8) See the 3 & 4 Vict. c. 96, s. 36, Supp. Appendix, p. 140. s. 503, by the Merchant Shipping Act, 1862, s. 54, and by the terms of the bills of lading, the master is liable for any injury which the goods may meet with whilst on board, arising from bad stowage, wet, want of ventilation; also for damage done by rats, although he keeps cats on board (t). And subject to the exceptions introduced by statute, and by the terms of the contracts of carriage, the master and owners are liable if the goods are stolen in port, either by thieves from the land or by pirates. In an early case, where goods were taken in the river Thames by a force which overpowered the crew, it was held that the master was liable, like a common carrier, and was excused only in the case of loss by the act of God, or the king's enemies (u). voyage. The master commits a clear breach of duty if he lingers in Starting for port when all is ready and the wind is fair; but he is not to set out on a voyage during tempestuous weather (a), or to leave the harbour under a well-founded fear of capture (y). He is bound to put his ship under the charge of a pilot, both on the outward and homeward voyage, when he is within compulsory pilotage waters (), and also to observe, in all respects, the regulations of the port from which he is sailing (a). Where, as is generally the case in time of war, it is necessary, (t) Laveroni v. Drury, 8 Exch. 166; Kay v. Wheeler, L. R., 2 C. P. 302; Emérigon (Traité des Assur. c. 12, s. 4) states the rule of the Admiralty law to be, that the master is liable if there are no cats on board, but adds, "Le patron ne répond pas du dommage causé par les rats, si les chats qui étaient à bord, sont morts pendant de voyage pourvu qu'au premier endroit où il a touché il n'ait rien oublié pour s'en procurer d'autres," for which position several authorities are cited. See also Davidson v. Gwynne, 12 East, 381, and the foreign and American authorities cited in Laveroni v. Drury, ubi sup. (u) Mors v. Slew, the fullest report of which is in 3 Keb. 72, 112, 135; S. C., Sir T. Raymond, 220; 1 Mod. 85; 1 Vent. 190; Story on Bailm. ss. 496, 497; 3 Kent's Com. 213. In Lane v. Cotton, 12 Mod. 484, Lord Holt takes a distinction between a robbery of goods from a ship when at sea and when in a river. See also Nugent v. Smith, 1 C. P. D. 423. (x) Molloy, B. 2, c. 2, s. 4. By the laws of Oleron, art. 2, the master was bound not to put to sea without having first consulted with his crew. (y) In Pole v. Cetovich, 9 C. B., N. S. (a) See ante, p. 128. If he does not DUTIES DURING THE VOYAGE. in order to comply with the provisions of an act of Parliament, or with the terms of a charter-party or policy of insurance, that the ship should depart with convoy, the master must use all necessary exertions for joining it at the appointed place, and for obtaining sailing orders from the officer in command (b). The duties of the master with reference to lights, and to the course which he should take in order to avoid collision with other vessels will be found in Chapter IX. on COLLISION. In this chapter will also be found the important duty which now devolves upon the master, in case of collision, to stay by the other vessel so long as she needs assistance, the disobedience of which makes him guilty of a misdemeanor, and liable to have his certificate cancelled or suspended (c). When once the voyage is commenced the master must proceed, without deviation, to the port of discharge, or to the point where orders for discharge are to be received. If he finds that no orders have arrived he is not bound to communicate with the charterer, but after waiting a reasonable time may proceed to a place named in the charter-party (d). Where a ship is sold during a voyage, the master is bound by the instructions of his owner the vendor until notice has been given to him by the vendees of the sale and termination of the vendor's authority (e). If the vessel deviates unnecessarily, the master and owners are responsible for any subsequent loss or injury that may occur, although it be by the act of God or the king's enemies (ƒ). And if the vessel be insured the underwriter is discharged as regards losses occurring after the deviation (g). As between the master and his crew, however, he may at any time, subject to his liability for any breach of contract, vary the voyage, and the seamen cannot compel him to continue that which was originally intended (1). (b) See post, Chap. VII., INSURANCE. (g) See post, Chap. VII., INSURANCE. tifiable as against the owners of cargo, but it seems that deviation for the purpose of saving life is justifiable. Stamp v. Scaramanga, 4 C. P. D. 316; The Scindia, L. R., 1 P. C. 241; The True Blue, ib. 250; The Sir Ralph Abercrombie, ib. 454; The Thetis, L. R., 2 A. & E. 365. (h) Per Sir W. Scott, in The Elizabeth, 2 Dods. 408. But it seems the seamen may leave the ship if the ship is employed on a voyage altogether different from that for which they were engaged. See Burton v. Pinkerton, L. R., 2 Ex. 340. See post, Chap. IV., CREW. |