ÆäÀÌÁö À̹ÌÁö
PDF
ePub

the particular trade in which the ship is engaged. The master
may himself sue the consignee for it, although the freight has
been settled with the shipowner (e). Where by the bill of lading
goods were to be delivered to the consignee, "he paying freight
for the same as per charter-party, with primage and average
accustomed," and the agreement between the shipowner and
consignee (there being no actual charter-party) was for so much
per ton, not mentioning primage, it was held that the master
was entitled to primage from the consignee, although his bargain
with the owner was to receive beyond his
wages a sum certain
"for all cabin or other allowances” (ƒ).

The law considers, however, on obvious grounds of policy, Trading on his that the master is engaged to devote the whole of his time and own account. attention to the concerns of his owner, and it, therefore, does not allow him to trade on his own account (g), or to hire out his services, or any part of them, to another. Should he do so, he is not entitled to receive any earnings derived from such a contract, and if they have been paid to the owner, the latter is entitled to retain them (h). For the same reason the master may not claim premiums for himself which arise out of transactions in which he is engaged on behalf of his employers, even although a contrary usage may have prevailed in this respect (i).

The master could not, until recently, except in the case of the Remedy for bankruptcy or insolvency of the owner (when by the 7 & 8 Vict. wages. c. 112, s. 16, he had the same rights, liens and remedies as the other mariners) (j), sue in the Admiralty Court for his wages,

(e) Best v. Saunders, M. & M. 268. (f) Ib.; see also Charleton v. Cotesworth, R. & Moo. 175, and post, Chap. VI., CONTRACT OF AFFREIGHTMENT.

(g) Gardner v. M'Cutcheon, 4 Beav.

534.

(h) Thompson v. Havelock, 1 Camp.

527.

(i) Diplock v. Blackburn, 3 Camp. 43.

(j) See post, Chap. IV., CREW. This statute is now repealed. It was held in the Admiralty Court, that to entitle a master to sue there for his wages under it, the owner must have been insolvent in the legal sense of the word, and not merely under a general inability to pay

his debts. The Princess Royal, 2 W.
Rob. 373. Where an owner had com-
mitted an act of bankruptcy by filing
a declaration of insolvency, and two
months had expired, but no commission
had issued, this was held not to be a
case of bankruptcy under the statute so
as to entitle the master to sue. The
Great Northern, 2 W. Rob. 509; see
also The Tecumseh, 3 ib. 109. It was
also considered doubtful whether the
statute applied where some only of
several part owners were bankrupt.
See The Simlah, 15 Jur. 865, and the
7 & 8 Vict. c. 112, s. 63, (the interpre-
tation clause.)

for his contract was considered to be personal with the owners, and founded on their credit alone, and not on that of the ship (k). Now, however, it is provided by sect. 191 of the Merchant Shipping Act, 1854, that every master shall have the same rights, liens and remedies, for the recovery of his wages, as any seaman, not being a master; and if in any proceeding in any Admiralty or Vice-Admiralty Court (1), touching the claim of a master to wages, any set-off or counter-claim is set up, the Court may adjudicate upon and settle all questions and accounts arising and unsettled between the parties, and direct the payment of any balance found due. And by the Admiralty Court Act, 1861, jurisdiction is given to that Court over any claim made by a master for wages earned by him on board the ship, and for disbursements (m) made by him on account of the ship (n). The claim of the master for wages has priority over that of a bottomry bond owner, except where the master has bound himself in the bond to pay the money advanced. The seamen's claim for wages takes, however, precedence of the master's claim, either for his own wages or for advance of wages made to the seamen (o).

The remedy given by s. 191 of the Merchant Shipping Act, 1854, has been held to apply to the master of a foreign ship (p).

The ordinary remedies of the master or mate may, it is obvious, be affected by their conduct in any particular case. Thus, where a mate, having the option at a foreign port to receive his wages in money, or by a bill upon the owners, preferred the

(k) Bayly v. Grant, 1 Salk. 33; per Sir W. Scott, in The Lord Hobart, 2 Dods. 104; Barber v. Wharton, 2 Ld. Raym. 1452. If, however, the mate became master during the voyage, he might sue in the Court of Admiralty for wages due to him as mate during the whole time, but not as master for the time during which he served in that capacity. See The Favourite, 2 Rob. 232; Read v. Chapman, 2 Str. 937; and Lord Stowell's judgment in The Batavia, 2 Dods. 500. The master must bring his claim for the whole amount of wages due, and cannot, in the first instance, go into any account relating to other matters between himself and the owners. The owners may, however, go into the whole The Caledonian, 1 Swab. A. R.

account.

17.

(1) As to the establishment and juris

diction of Vice-Admiralty Courts in the Colonies, see the "Vice-Admiralty Courts Act, 1863," (26 Vict. c. 24.)

(m) This word does not include the master's liability for wages due to the crew or necessaries furnished to the ship. The Chieftain, 32 L. J., P. M. & A. 106.

(n) 24 Vict. c. 10, s. 10. This section provides that "if in any such cause the plaintiff do not recover fifty pounds, he shall not be entitled to any costs, charges or expenses incurred by him therein, unless the judge shall certify that the cause was a fit one to be tried in the said Court." See as to costs, when the claim is referred to the regis trar and merchants and reduced, The Lemuella, 1 Lush. A. R. 147.

(0) The Salacia, 1 Lush. A. R. 545.
(p) The Milford, 1 Swabey, A. R.

362.

latter, it was held that he had lost all claim against the ship (q). Where, however, a master had several times balanced accounts with the owner, which included disbursements and wages, and had received bills for the joint amounts, it was held, that upon the owner becoming bankrupt, the bills being unpaid, the master had still his remedy under the 7 & 8 Vict. c. 112 (r).

It has been held in the Court of Admiralty, that the wages Forfeiture of, of the master are not forfeited by occasional drunkenness, or by by misconduct. an error in judgment, although it is otherwise where the drunk

enness is constant (s).

The master had at common law no lien on the ship (t), or Lien. freight (u), for his wages, or for disbursements on account of the ship during the voyage. We have seen, however, that under the Merchant Shipping Act, 1854, he has now the same liens and remedies for his wages as the seamen have; and the seamen have, independently of statute, a lien upon the ship and freight for their wages, which lien is enforceable in the Court of Admiralty (v). The master has accordingly in that Court a maritime lien for his wages (x). Where by a charter-party (not under seal), made by the master, the charterer agreed to pay freight generally, without saying to whom, it was held that the owner having received the freight, the master could not maintain an action for it against the charterer, although he had given him notice not to pay it to any one but himself (y).

Where a master entered into charter-parties abroad, and paid monies and incurred liabilities in fitting his ship to perform them, and on her arrival in England the owner was bankrupt, having mortgaged the ship, and the mortgagees seized her, it was held, on a bill filed by the master against the owner's assignees in bankruptcy, that he had an equitable lien on the freight, and was entitled to be reimbursed out of it (z).

The master may not only insure his commission and privileges, or any other interest which he may have in the ship or voyage,

(q) The William Money, 2 Hagg. 136. (r) The Simlah, 15 Jur. 865. (s) The Atlantic, 11 W. R. 188. (t) Wilkins v. Carmichael, 1 Doug. 101; Hussey v. Christie, 9 East, 426. (u) Smith v. Plummer, 1 B. & A. 575. (v) See post, Chap. IV., CREW. (1) See the judgment of Dr. Lush

ington in The Ella Clarke, 32 L. J., P. M.
& A. 211.

(y) Atkinson v. Cotesworth, 3 B. & C.
647.

(z) Bristowe v. Whitmore, 31 L. J., Chan. 467, reversing the decision of the Lord Chancellor, 4 De G. & J. 325.

AUTHORITY.

but, unlike the other mariners, he might (even before the alteration in the law by which the right of the seamen to wages is made no longer to depend on the earning of freight) insure his wages; since the objections in the former case did not apply to that of the master, who was always entitled to his wages, although the ship was lost or captured (a).

Thirdly, as to the authority of the master over his crew or others on board. Whilst his vessel is afloat, the master is bound to maintain order and discipline on board, under the guidance of justice, moderation and good sense. His authority over his crew has been compared to that of a parent over his child, or of a master over his apprentice; these analogies, however, are not very close, and the safer rule is to consider the particular authority which the respective positions of the parties require (b). A master may order a delinquent mariner to be confined, or inflict corporal punishment upon him (c), and this authority exists not only whilst the ship is at sea, but also whilst she is in a foreign port or river (d). Such punishment or confinement must, however, be commensurate to the offence committed, and must be awarded with due moderation (e). The master is not bound to wait for an actual act of mutiny, but may use violence to prevent it although it be only threatened (f). In all cases which admit of the delay, due inquiry should precede the punishment, and the party charged should be heard in his own defence (g). It is the duty and also the interest of the master to cause a statement of the offence, and of any punishment which may be inflicted, to be entered in the official log (h). The position of

(a) King v. Glover, 2 N. R. 206; Webster v. De Tastet, 7 T. R. 157; Hawkins v. Twizell, 5 E. & B. 883.

(b) The English authorities on this subject are few. They are collected in Pritchard's Adm. Digest, tit. DAMAGE, PERSONAL. For the American cases see ibid., also a valuable note to the 5th American edition of Abbott on Shipping, p. 234, and the authorities there cited.

(c) Molloy, B. 2, c. 3, s. 12. The Agincourt, 1 Hagg. 271.

(d) Lamb v. Burnett, 1 C. & J. 291. The American Courts have laid down the very reasonable rule, that where it appears that the punishment is merited, they will not undertake to adjust exactly,

according to their own ideas of fitness and propriety, the balance between the offence and the punishment, and that they will not award damages unless the punishment is manifestly excessive. See the cases cited in the 5th American edition of Abbott on Shipping, 236.

(e) Per Lord Stowell, in The Lowther Castle, 1 Hagg. 385; Murray v. Moutrie, 6 C. & P. 471.

(f) The Lima, 3 Hagg. 346; and see Bingham v. Garnault, Buller, N. P. 17. (g) See per Lord Stowell, in The Agin court, 1 Hagg. 274.

(h) M. S. Act, 1854, s. 244. See an account of the log, post, p. 101, and the remarks of Tindal, C. J., in Murray v. Moutrie, ubi sup.

passengers is different; but even over them the master has absolute control in all that is necessary for the safe and proper conduct of the vessel, but the exercise of such power in each instance is defined and limited by the necessity of the case. He may restrain them by force, if the safety of the ship or of those on board requires it (i); he may also, it would seem, exclude them from the table where the other passengers mess, if their conduct be improper (k). If the master exceeds the bounds of justice and moderation, he becomes a trespasser, and in cases of assault committed by him whilst at sea, either on one of his crew or on a passenger, the Court of Admiralty has jurisdiction, and may award damages to the injured party (1). He is also liable to be sued in a Court of Common Law (m).

Fourthly, as to the duties of the master, we will consider them DUTIES BEas they arise before the voyage, during the voyage, and after FORE THE the voyage has been determined.

VOYAGE.

crew.

Before the commencement of the voyage the duty of the master, as regards the state of the ship, is identical with that of the owner (n). There are, however, other duties which fall more As to ship and immediately within his province; thus he must procure a competent crew, both as regards number and fitness for their respective duties; he must also conform to any requirements of the Legislature as regards their engagement (o); and on leaving port he must, in the case of foreign going ships, sign and send to the nearest shipping master a statement, in a form sanctioned by the Board of Trade, of every change which takes place in his crew before finally sailing (p). By the General Harbour Act, 10 & 11 Vict. c. 27, s. 53, masters, whilst their vessels are within any harbour or dock, or within the limits of any harbour-master's authority, must regulate their vessels in accordance with that act, or any special act by which the harbour is governed; and if, after due notice, they neglect to do so, they are liable to penalties not exceeding 201. (q).

[blocks in formation]
« ÀÌÀü°è¼Ó »