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Stowage.

of neither fraud nor fault; the law in this instance being founded on reasons of public policy, in order to prevent the combinations that might otherwise be made with thieves and robbers.'

It is in all cases the duty of the master to provide ropes, and other tackling proper for taking the goods on board. And if a cask be accidentally staved in letting it down into the hold of the ship, the master must answer for the loss. The ship must also be furnished with proper dunnage, consisting of pieces of wood placed against the sides and bottom of the hold, and sometimes accompanied with matting, or other means, suitable to the nature and quality of the cargo, for the purpose of preserving it from the effects of leakage; and if the owners have merchandise to ship, that will occupy no more room than the dunnage, or dunnage and ballast together, which would otherwise have been requisite, they may use it instead, notwithstanding the whole ship is chartered to another.'

In loading the cargo, care must be taken by the master, unless by usage or agreement this business is to be performed. by persons hired by the merchant, so to stow and arrange the different articles of which it consists, that they be not injured by each other, or by the motion or leakage of the ship; for if damage accrue from one or other of such causes the master

have charged a carrier in the case of
robbery, unless he travelled by danger-
ous ways, or at unseasonable hours.
See Jones on Bailments, p. 103.

1 Barclay v. Y'Gana, Doug. 389.
The limitations placed on their respon-
sibility by statute have already been
considered, ante, c. iii.

2 Per Lord Holt, Coggs v. Bernard, 2 Lord Raym. 909, 918.

3 Laws of Oleron, art. 10-1 Pardess. 330; Laws of Wisby, art. 24-1 Pardess. 477; Welwood, tit. 9.

4 Goff v. Clinkard, cited, 1 Wils. 282. But by the civil law, if there was no negligence there was no liability, Dig. 19. 2. 25, 7. Qui columnam transportandam conduxit, si ea, dum tollitur aut portatur, aut reponitur, fracta sit, ita id periculum præstat, si qua ipsius, eorumve, quorum opera uteretur, culpa

acciderit; culpa autem abest, si omnia facta sunt, quæ diligentissimus quisque observaturus fuisset. Idem scilicet intelligemus, et si dolia vel tignum transportandum aliquis conduxit.

5 The freighter frequently binds himself in the charter-party to supply the ship with proper dunnage.

Ord. Rotterdam, art. 125, 1262 Magens, 101.

7 Towse v. Henderson, 4 Exch. 890. See Blakie v. Stembridge, 28 L. J. (C. P.) 329; and Gilkison v. Middleton, 26 L. J. (C. P.) 209, 2 C. B. (N. S.) 134, S. C. (the charter-party there.)

9 Wellwood, 29; Ord. Antwerp, art. 8-2 Magens, 16; French Ord. liv. 2, t. 1, art. 9-4 Pardess. 347; Laws of Oleron, art. 11-1 Pardess. 331; Ord. Wisby, art. 25-1 Pardess. 478.

and owners are liable without proof of personal negligence,' unless it appear that the shipper assented to the manner in which his goods were stowed, or that they were so stowed by his own stevedore without any express orders or interference on the part of the master. It seems that for his own misconduct in causing the damage, the master is liable to the owners of the ship, but not for the misconduct or negligence of the mate or crew if there is no fault in himself."

More cargo should not be taken on board than the ship can Quantity of carry, after leaving room for her own furniture, for the provisions, and due accommodation of the crew, and for the proper working of the vessel." The manner of carrying any part of the cargo, must not be such as is prohibited;" nor should any of the goods taken on board be prohibited, uncustomed, or contraband of war,' whereby the ship

1 Gillespy v. Thompson, 2 Jur. N. S. 712 n.; Alston v. Herring, 11 Exch. 822; 25 L. J. (Ex.) 177; per cur. Blakie v. Stembridge, 28 L. J. (C. P.) 329; (in error) 29 L. J. (C. P.) 212; Hutchinson v. Guion, 28 L. J. (C. P.) 63.

Major v. White, 7 C. & P. 41; Hovill v. Stephenson, 4 C. & P. 469.

3 Blakie v. Stembridge, 28 L. J. (C. P.) 329; (in error) 29 L. J. (C. P.) 212; Consolato, c. 192-2 Pardess. 220. Stevedore, a word in common use at all our great shipping ports, to denominate a person whose business is to undertake the stowage or discharge of cargoes with a gang of workmen whom he hires and pays and is responsible for. Familiar mention of such a person, with the same functions exactly, is made in the Consolato del Mare, where his name in the original Catalan of that celebrated collection of maritime law is Stibador, the original, no doubt, of the word we use, and on that account remarkable as a proof of the great authority in Europe, which these laws, at a very early period, had attained to. When a stevedore is appointed by the shipper, the master is not liable for injury done in stowing, not even to the owner, Swainston v. Garrick, 2 L. J. (Ex.) 255. But owing to a suggestion made in that case

by Bayley, J., it appears that a clause
is sometimes introduced into the charter-
party providing that the stevedore,
though appointed by the shipper,
should act under the master's orders.
Such a clause had been introduced into
the charter-party executed in the case of
Blakie v. Stembridge, supra, but it was
held to have created no liability on the
part of the master to the shipper for
the acts of the stevedore, unless they
were done in pursuance of his orders.

4 Per curiam, Blakie v. Stembridge,
28 L. J. (C. P.) 329, 331; citing Petries
v. Aitcheson, 15 Fac. Coll. 493.

5 17 & 18 Vict. c. 104, § 231, 221230; see Couch v. Steel, 3 E. & B. 402; Roccus, not. 30; Ord. Rotterdam, art. 127-2 Magens, 102.

6 E.g., timber on deck from a British North American port between the 1st of September and the 1st of May, contrary to the Customs Act, 16 & 17 Vict. c. 107, § 170, 171, 172; Cunard v. Hyde, 29 L. J. (Q. B.) 6.

7 Havelock v. Hancill, 3 T. R. 227; Lockyer v. Offley, 1 T. R. 252; 16 & 17 Vict. c. 107, § 199-262, 159-194; The Jonge Jan, Schnil, 1 Dod. 458; The Haabet, Vetté, 2 C. Rob. 182; The Sarah Christina, Gorgensen, 1 C. Rob. 242; The Neptunus, Bachman,

Ship's Papers regular.

COMMENCING THE
VOYAGE.

Time and
Weather.

and other parts of the cargo may be liable to forfeiture or detention.'

It is the duty of the master to take on board no false or colourable papers that might subject the ship to capture or detention by the government of his own or any foreign country; at the same time that it is necessary he should procure and keep on board all papers and documents for the manifestation and protection of the ship and cargo in accordance with the law of the countries from and to which he is bound, and in accordance with the law of nations in general, and with existing treaty stipulations between particular states. All other things being ready, his duty is lastly to obtain the necessary clearances or permission to sail from the officers of the customs or others appointed for that purpose on payment of all dues, port and other charges imposed on shipping, and thereafter to commence the voyage without delay.'

Secondly. The vessel should not sail on her voyage before the expiration of the stipulated lie-days, or if so required, until the end of the days to be accounted for on demurrage.' Cases frequently arise, illustrative of this duty, out of stipulations to load a return cargo within a given time after arrival out, and for reasons which remain to be examined, the merchant fails of performance; it is nevertheless the master's duty to wait

6 C. Rob. 409; The Staadt Embden,
Jacobs, 1 C. Rob. 30.

1 Molloy, bk. 2, c. 2, §7; Roccus,
not. 66; Wellwood, tit. 9.

2 Offences against the law of this country, relating to the national character of the ship, and the distinctive flags of the mercantile marine and the royal navy, have already been noticed, ante, c. ii.; see as to that, 17 & 18 Vict. c. 104, § 102-106; as to necessity for certificate of registration at clearance, ibid. § 19; except there be a special pass, § 98 certificates of master and other officers, § 136; certificate of shipping master, § 161, 162. As to passengers and passenger ships, see ante, c. vii. As to the Content for foreign-going ship, 16 & 17 Vict. c. 107 (the Customs Consolidation Act) § 142; transire for

coasting vessel, § 146; and for other such papers, see same statute; Levy v. Costerton, 4 Camp. 389.

By the Code de Com. art. 226, Le capitaine est tenu d'avoir à bord,— L'acte de propriété du navire,-L'acte de francisation,- Le rôle d'équipage,— Les connaissements, et chartes-parties, -Les procès verbaux de visite, -Les acquits de paiement ou à caution des douanes.

3 Smith v. Mc Guire, 27 L. J. (Ex.) 465, 472; Soames v. Lonergan, 2 B. & C. 564; Harries v. Edmonds, 1 C. & K. 686; Reid v. Hoskins, 6 E. & B. 953; (below) 5 E. & B. 729 ; if time is not mentioned, he must wait a reasonable time, Matthews v. Lowther, 5 Exch. 574.

4 Ibid.; and see Wilson v. Hicks, 26 L. J. (Ex.) 242; and Staniforth v.

the period absolutely stipulated, unless he is expressly discharged therefrom in unequivocal language by some person competent so to do.' Meanwhile, if his cargo outwards did not belong to the person for whom the ship is chartered home, it is his duty to give notice of his readiness to receive cargo, at the time that he is so, and otherwise to put himself in communication with the person bound by the contract to provide a cargo.'

The time having expired, he should commence his voyage without delay, as soon as the weather is favourable,' but on no account whilst it is tempestuous. Upon this topic of wind and weather he is even required by most of the ancient marine ordinances, before hoisting sail, to consult his mate, pilot, and others of the crew; but no such consultation is necessary by the law of England, the policy of which is to leave the entire management of the ship, and the sole responsibility for it, in the hands of the master.

During hostilities, if there is an undertaking or warranty to Convoy. sail with convoy, the vessel must repair to the place of appointed rendezvous, and put herself under the protection and control of such ships of war as are ordered on this service for the place of her destination, to be conducted as near thereto as convoy sails. In such times a warranty to sail with convoy is common in policies of insurance. If it be not complied with, the insurance becomes absolutely void, and the insurers are then not answerable for loss, although it happen by tempest, or by any other cause otherwise within the intention of the policy and wholly independent of the subject of the warranty. But if the warranty be between the master or owner and the

Lyall, 7 Bing. 169, as to the measure of damages under these circumstances.

1 Barrick v. Buba, 2 C. B. (N. S.) 563; Avery v. Bowden, 5 E. & B. 714; (in error) 7 E. & B. 953; Reid v. Hoskins, 5 E. & B. 729; (in error) 6 E. & B. 953; Barker v. Hodgson, 3 M. & Sel. 267.

2 Fairbridge v. Pace, 1 C. & K. 317; and see Barrick v. Buba, 2 C. B. (N. S.) 563; and cases supra, n.1.

3 Ord. Rotterdam, art. 128-2 Magens,

102.

4 Heyman v. Parish, 2 Camp. 149; Molloy, bk. 2, c. 2, § 4, Roccus, not. 56.

5 Wellwood, t. 8, p. 26; Ord. of Antwerp, art. 11-2 Magens, p. 17; Ord. Wisby, art. 16-1 Pardess. 471; 1 Emerigon, 376. This author also observes, that, although the master is bound on this and other occasions to ask the advice of his crew, yet he is not bound to submit blindly to it, if it is bad, or if under the circumstances it appears to be bad.

merchant, and be not complied with, they are answerable for the damage he sustains in consequence; having trusted to their warranty, so far as to insure with a similar warranty, he has a claim to be recouped to the extent of the indemnity, which is lost to him by their misconduct.'

The convoy must be a ship or ships of war expressly appointed for the purpose by the government, or by the officer in command on a particular station. The protection of a ship of war accidentally bound on the same voyage, although discharging the office of convoy, is not a convoy within the meaning of this warranty.❜

A warranty to sail or depart with convoy means, not that the vessel shall depart with convoy immediately from the lading port, but from the place of rendezvous appointed for vessels bound from that port. From many ports, and among others from the port of London, no convoy ever sails. It has therefore been held sufficient for a vessel bound from London to sail with convoy from the Downs ; and even from Spithead, when there was no convoy appointed at the Downs."

Nor does it require the vessel to sail with convoy bound to the precise place of her destination; it is enough if she proceed with the only convoy appointed for vessels going to that place. In an action therefore on a policy on goods in the Little Betsey at and from London to St. Sebastian in Spain, warranted to depart with convoy, it was held that she had satisfied the warranty by sailing under convoy of a squadron of frigates to Gibraltar, and thence with The Weazle under orders to see them safe to Bilboa, although, soon after, The Weazle parted with them in chase of a strange ship, and did not afterwards join them."

It sometimes happens that the force first appointed is to accompany the ships only for a part of their voyage, and to be succeeded for the residue by another; at other times a small force is detached from the main body to bring them up to a

1 Phillips v. Baillie, 3 Doug. 374; Rinquist v. Ditchell, 3 Esp. 64, referred to per Gibbs, C. J., in Sanderson v. Busher, 4 Camp. 54 n.; Sanderson v. Busher, ibid.; Magallhaens v. Busher, 4 Camp. 54.

2 Hibbert v. Pigou, 2 Park on Insurance, c. 18, p. 694.

3 Lethulier's case, 2 Salk. 443.

Gordon v. Morley, 2 Stra. 1265. 5 D'Eguino v. Bewicke, 2 H. Bl. 551.

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