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master or mate in a British foreign-going ship before the 1st January, 1851, or as master or mate in a home trade passenger ship before the 1st of January, 1854, to serve in those capacities again; and it also entitles an officer who has attained, or attains, the rank of lieutenant, master, passed mate, or second master, or any higher rank in the service of Her Majesty, or of the East India Company, to serve as master of a British merchant ship.'

No British ship may lawfully go to sea from any port in Compulsory. the United Kingdom, unless valid certificates, appropriate to the station of the holders, or of a higher grade, have been obtained and are possessed by the master, and first and second or only mate of a foreign-going ship, and by the master and first or only mate of a home trade passenger ship. And on board every such ship, being of 100 tons burden, and going to sea from a port in the United Kingdom, there must be at least one officer, however his office may be named, besides the master, who has obtained and possesses a valid certificate appropriate to the grade of only mate therein, or to a higher grade. It is still undecided, but scarcely doubtful, that the effect of this provision, considering how directly it bears on the proper navigation of the ship, will be to render the ship unseaworthy within the meaning of the policy of insurance if she proceeds to sea from a port in the United Kingdom with officers of the grades referred to who have not obtained appropriate certificates of qualification, or whose certificates have been cancelled or suspended and remain so. A penalty of 501. is, besides, imposed on every one who goes to sea as such officer in that condition, and on every one who employs him so to go without ascertaining whether he was legally qualified at the time.'

THE MASTER'S
DUTIES IN RE-

SPECT OF THE

The duties of the master to his owners engage him primarily to watch for the safety of the ship in port and at sea,-to repair it when necessary abroad, for which purpose we have already SHIP.

17 & 18 Vict. c. 104, § 135.

* Ibid. § 136.

3 See as to the cancellation, &c., or certificates, ibid. § 241, 242; and the

recording of all grants of certificates
and subsequent orders respecting the
same, ibid. § 138.

4 Ibid. § 136.

Illustration.

considered his resources,'-to avoid injury to it from loading or delivery in improper berths, or from improper stowage,' overloading or deck-loading, especially if it be winter;' and should the vessel be attacked with force of arms by the Queen's enemies, pirates, or mutineers, both duty and honour engage him and the crew to resist, to the uttermost, whenever it is not absolutely hopeless." The same considerations bind him, in time of war, to wait for convoy and observe the regulations issued in connection with that service.

If his course obliges him to approach a dangerous shore, it may become his duty to signal for a pilot, and only proceed without one when it would be unreasonable and dangerous to wait longer; but in any port where pilotage is usual, the interests of the ship can scarcely ever allow him to sail without a pilot, as that course may discharge the underwriters from liability for damage happening to the ship in such waters. In a word, the interests of the master are so bound up by his duty to the owners with their interests in the fate of the ship, that, when it comes to the worst, nothing short of the evidence of overwhelming facts should suffice to satisfy him that the recovery and repair of the vessel is impossible, except at an unreasonable cost; and even then, if the wreck can be preserved without undue expense or deterioration, he should communicate with his owners before selling.

A ship, with her cargo on board, having struck the ground on her way down the St. Lawrence, and sprung a leak, was overtaken by tempestuous weather, it being the month of November, and in spite of the exertions of the crew, assisted

1 See c. i., iv.

2 The master for this reason will be cautious how he contracts for the employment of the ship to ports and rivers of insufficient depth for her draught of

water.

3 See Redman v. Wilson, 14 M. & W. 476.

4 Deck-loading prohibited in the American timber trade between 1st Sept. and 1st May, by 16 & 17 Vict. c. 107, § 170-172; it vacates the insurance, Cunard v. Hyde, 29 L. J. (Q. B.) 6.

5 See 22 Geo. 3, c. 25, § 1, 2; making ransom illegal; and 22 & 23 Car. 2, c. 11, post, p. 250.

6 Phillips v. Headlam, 2 B. & Ad. 380; Law v. Hollingsworth, 7 T. R. 160.

7 1 Arnould, Ins. 723.

Royal Exchange Assur. Co. v. Idle, 3 B. & B. 151; (in error) 8 Taunt. 755; Hunter v. Parker, 7 M. & W. 322; The Margaret Mitchell, 4 Jur. N. S. 1193; Wallace v. Fielden, 7 Moore, P. C. 398; Cammell v. Sewell, 3 H. & N. 617; ante, p. 146.

by additional hands at the pumps, the water steadily rose, till it stood six feet deep in the hold, and still was rising. It was deemed necessary, therefore, to run the ship ashore, but in that attempt she grounded on the outside of a reef, and lay exposed to the force of the river and in the way of drift ice as soon as that should set in. This happened ninety miles below Quebec, where two part-owners resided, and where the master immediately communicated with them. The result of two surveys, which were made by competent persons, was a recommendation that, considering her perilous situation, it would be prudent, and for the benefit of all concerned, to sell the ship and cargo; and the sale accordingly took place by the direction and in the presence of one of the part-owners. The ship survived the winter in the same position, and in the following spring, having been floated off, was repaired at an expense of 546l., and afterwards arrived, with a full cargo, in this country. These facts were set out in a special verdict, and the Court of Common Pleas held that they justified the sale; but the King's Bench, sitting as a court of error, found nothing in the facts to make the sale necessary, and awarded a venire de novo.1

with the Owners.

The master's situation, and that of the ship together, may To communicate be such, that it would not be advisable for him to communicate with the owners under the notion of waiting the return of the post for instructions; but it always is his imperative duty, in case of injury to the ship, to inform them forthwith of the extent of it, that they may protect their interests with the underwriters. In other respects he is bound to see that nothing happens, or is done, which can be avoided, whereby the liability of the underwriters may be discharged, and the owners deprived of their right and protection under the policy; or whereby penalties against the owners, or the forfeiture of the ship, may be incurred under the registry enactments, or the Passengers' Act.

The owners are also entitled to a clear and explicit account To account and keep Log.

The Royal Assurance Co. v. Idle, 3 B. & B. 151; (in error), 8 Taunt. 755.

Wilson, 8 Moore, P. C. 459, 478.
3 Gladstone v. King, 1 M. & Sel. 35.
4 17 & 18 Vict. c. 104, § 52, 103;
18 & 19 Vict. c. 119, § 12. Ante,

The Margaret Mitchell, Jamieson, 4 Jur. N. S. 1193. See Wilkinson v. p. 62-64.

HIS AUTHORITY

ON BOARD.

His responsibility for the safety and

health of all on board.

Discipline.

from the master of his receipts and disbursements;' and to the journal of events written and dated at the time of each occurrence, called the ship's log. In addition to this, he is bound, by statute, subject to penalties, to have the "official log" regularly kept, under the date of the entry and of the occurrence, in accordance with the requirements and in the form set out in the Act; and the wilful destruction, mutilation, or obliteration thereof, or the making, or assisting to make, any false or fraudulent entry or omission therein, is declared a misdemeanour."

It is well to bear in mind the responsibility of the master for the safety of the ship, and for the life and health of all on board, in estimating the governing authority entrusted to him by law when the ship is at sea. The end in view, the necessity of the situation, and the evil effects of bad example when followed by impunity in so small and inseparable a society, form the reason and the excuse for giving him despotic power. For the use that he makes of it, however, he is answerable to that same law from which he derives it; which at once determines the limits to its exercise, and reserves for the courts of justice the right of judging afterwards of the occasion, and the manner, of its use."

His authority, given him for the purposes of safety and good government, extends to the passengers also, to be exerted in that degree which the occasion renders necessary for the preservation of the ship, and for the protection of his rule from contempt, and the rest of the passengers from wilful annoyance.

But it is to the crew chiefly that reference is made by the law in providing for the maintenance of discipline in the ship. By the common law, all the mariners on board ship are bound, and by their agreement for service promise, to obey the

1 Topham v. Braddick, 1 Taunt. 572; White v. Lady Lincoln, 8 Ves. 309; Lady Ormond v. Hutchinson, 13 Ves. 47, 53. The voucher of the shipping master is evidence to the owner that the payments specified therein have been made by the master, 17 & 18 Vict. § 175.

2 17 & 18 Vict. c. 104, § 280-284. 3 Ibid. § 284.

4 So called, per Alderson, B., Reg. v. Leggett, 8 C. & P. 191, 194.

5 Ibid.

6 King v. Franklin, 1 F. & F. 360 Prendergast v. Compton, 8 C. & P. 454 Boyce v. Bayliffe, 1 Camp. 60.

master's commands in all lawful matters relating to the navigation of the ship, and the preservation of good order; his power within these limits being despotic, and himself responsible for the use of it only to the courts of the country. In case of disobedience or disorderly conduct, he may lawfully correct them in a reasonable manner; the English law likening his authority in this respect to that of a parent over his child, or of a master over his apprentice or scholar; but having, by this analogy, indicated the humane temper and the dispassionate view with which the master is to act on such occasions, it wisely abstains from attempting more on SO delicate a subject.

"No statutable regulations," says Lord Stowell," "exist upon this subject. The only authorities are supplied by the decisions of the courts of law, acting upon considerations of necessity and just discretion; and upon such grounds I think the following rules may be considered as sufficiently established. In the first place, that the punishment must be applied with due moderation. It is asserted, in some wellconsidered books, that the law gives the same authority to the captain of a merchant ship to chastise his mariners for misbehaviour, as a master possesses over his apprentices; meaning, that it is inherent in him, upon the same grounds of necessity and sound discretion in the one case as in the other; not certainly, to be used exactly in the way of an equal measure of punishment, because the apprentice is generally a youth of comparatively tender years, and whose acts of misbehaviour can hardly produce the same destructive consequences as may attend the negligence of the mariner-an experienced person, of confirmed strength, capable of sustaining a severer infliction than could properly be inflicted on a

1 Magister nullam habet jurisdictionem ingentem suarum navium, sed quandam tantum œconomicam potestatem vel disciplinam, quæ usque ad levem castigationem, pro corrigendâ insolentiâ et male moratâ vitâ seu licentiâ nautarum et vectorum ; quemadmodum eam tenet pater in filios, magister in discipulos, dominus in servos vel familiares,-Casaregis, Disc.

136, no. 14; see Valin on the French Ordinance, vol. i. p. 449; and also Ordinance of Phillip II. (1563)-2 Magens, 19; Molloy, bk. ii. c. 3, § 12; Watson v. Christie, 2 B. & P. 224.

2 The Agincourt, Mahon, 1 Hagg. Ad. 271, 272. The judgment of the court in this case is replete with wisdom and humanity.

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