ÆäÀÌÁö À̹ÌÁö
PDF
ePub

*Lushington, "it appears, that where the bondholder has directly, or by intendment of law, a lien on the freight or cargo, the owner of the one may have the aid of the Court of Admiralty to bring the other into contribution, and that the Court will apportion the liability between the two; and where there are several bonds, some binding the ship and freight, others the ship, freight, and cargo, that Court will marshal the assets, directing one claim to be satisfied from the cargo, and another from the ship and freight" (c).

It has been held also in that Court, that freight earned from subshippers of goods, by permission of the charterers of the whole ship, is liable as against them in payment of a bottomry bond, given at the port of the charterers, for advances subsequent to the charterparty (d).

And it has been held a good plea to the further maintenance of an action for freight, that the defendants, in a proceeding on a bottomry bond for less than the amount of the freight, which had been instituted in the Court of Admiralty after the commencement of the action, were monished to bring, and did bring the freight into that Court, to * abide its judgment (e).

(c) The Trident, 1 Wm. Rob. 29, the Constancia, 4 Ecc. & Mar. cases, p. 512.

(d) The Eliza, Weddell, 3 Hagg. A. R. 17. (e) Place v. Potts, 2 W. R. 561.

CHAPTER IV.

OF THE BEHAVIOUR OF MASTER AND MARINERS; AND HEREIN,

(Ss.) 1. Of the Master's Duty to his Employers.

2. Of Offences committed by Master and Mariners, of his duties respecting them,
and his general duties on board Ship. Authority of Master to correct the
Mariners.

3. Regulations of Foreign Ordinances as to disposal of Ship's Provisions.
4. Of Breaches of Duty by the Mariners. Desertion, Mutiny, Disobedience, &c.

1. THE great trust reposed in the master by the owners, and the great authority which the law has vested in him, require on his part and for his own sake, no less than for the interest of his employers, the utmost fidelity and attention; for if any injury or loss happen to the ship or cargo by reason of his negligence or misconduct, he is personally responsible for it; and although the merchant may elect to sue the owners, they will have a remedy against him to make good the damages which they may be compelled to pay. So, if he make any particular engagement or warranty without a sufficient authority from his owners, although the owners may be answerable to the persons with whom he contracts, by reason of the general power belonging to his situation and character, he is in like manner responsible to the owners for the injury sustained by them in consequence of his acting beyond, or in violation of, the particular authority given to him (a).

He is bound also to employ his whole time and attention in the service of his employers, and the performance of the duties of his particular character, and is not at liberty to enter into any engagement for his own benefit that may occupy any portion of his time in other concerns; and therefore, if he do so, and the price of such engagement happen to be paid into the hands of his owners, they may retain the money, and he cannot recover it from them. This is well illustrated by the following case:-The master of an English ship, being at Smyrna, entered into an agreement with the deputy commissary of an English army to let the ship to Government for six months; and having stipulated that his owner should receive forty shillings per ton per month, he required that he himself should be allowed the usual primage; the commissary refused to make any allowance by way of primage, the freight being so very high; but as he expected great assistance from the master's skill and activity in managing the transport service in that quarter, he agreed that, instead of primage, the master should be allowed one shilling per ton per month on the ship's tonnage. The ship remained in the Mediterranean

(a) Fletcher v. Braddick, 2 New Rep. 182. Fenton v. Dublin Steam Packet

Company, 1 P. & D. 103, ante, p. 42; post, "Collision."

and

under this contract for about nine months. The master might have obtained a cargo of merchandise at Smyrna, upon which he would be entitled to a primage of five per cent. on the freight. During the period of this engagement his personal exertions were of considerable benefit to the public service. The whole of the money was paid by Government into the hands of the owner, and the master brought an action against him to recover this allowance. The cause was tried before Lord Ellenborough, who said, "It is contended, that a servant, who has engaged to devote the whole of his time and attention to my concern, may hire out his services, or a part of them, to another! It would have been a different thing, if the owner had been suing for his money; but I am clearly of opinion that, at all events, the present plaintiff has no right to it. Under this contract he must have been taken from superintending the defendant's ship; and I don't know how far it might go, if such earnings could be recovered in a Court of Justice. No man should be allowed to have an interest against his duty. I will assume that the plaintiff obtained as high a freight as possible for his owners, and that his services to Government were meritorious; still, there would be no security in any department of life or business if servants could legally let themselves out in whole or in part. My opinion upon the subject is quite decisive; and if it be doubted, I beg that a bill of exceptions may be tendered " (b). No lawyer will doubt the correctness of this opinion. It was fit that the reader should be informed of it in the very forcible terms in which it was expresed.

Upon principles analogous to those which governed the decision in the case of Thompson v. Havelock, it was ruled by Lord Ellenborough, that a premium received by the master of a ship from the state of the exchange, in respect of a bill drawn by him upon his owners on the ship's account, belonged to the owners; although it was suggested that, in practice, the master was allowed to retain a profit of this kind for his own use (c).

There is one very important branch of the master's duty in time of war, which he should be most careful to observe-I allude to his conduct when sailing under convoy; for, besides the civil responsibility that he may incur to his owners or freighters by misbehaviour in this respect, it may be expected that, in any future war, statutes may be again enacted, similar to those which were passed during the late war, whereby he may be subjected to fine or imprisonment. And it is at all times his duty to communicate to his owners any occurrence which may lead to a suspicion or doubt that his ship has sustained a damage, lest his owners should lose the benefit of an insurance which they may effect, and he thereby become answerable to them (d). It would be difficult to frame any set of general rules competent to

(b) Thompson v. Havelock, 1 Camp. 527. Upon the recommendation of the Chief Justice, the owner consented to make the master some allowance in the nature of primage; but he could not have insisted upon this.

(c) Diplock and Others v. Blackburn, 3 Camp. 43. See also the case of Gardner

v. M'Cutcheon, 4 Beav. 544.

(d) Gladstone v. King, 1 M. & S. 85; and the masters of steamers are bound to communicate to the Board of Trade the fact of any material injury sustained by the vessel or crew within twenty-four hours, or as soon as may be practicable, 14 & 15 Vict. c. 79, s. 29.

enforce the performance of the civil obligations of a person of this description, and the Legislature of this country had until lately, with some exceptions, declined the attempt.

Such of those duties as relate to the registration of and returns respecting seamen, to the carriage of goods and passengers, the preparation for, commencement, course and completion of the voyage, the payment of freight, and the hiring, payment, and discharge of seamen, will be found discussed in other parts of this Treatise, to which, under the arrangement adopted by the author, they appropriately belong. Others, relating more particularly to the personal deportment of the master in relation to the mariners, and to the preservation by him of good order and discipline, may be properly noticed here.

2. By the common law, the master has authority over all the mariners on board the ship, and it is their duty to obey his commands in all lawful matters relating to the navigation of the ship and the preservation of good order; and such obedience they expressly promise to yield to him by the agreement usually made for their service (e). In case of disobedience or disorderly conduct, he may lawfully correct them in a reasonable manner; his authority in this respect being analogous to that of a parent over his child, or of a master over his apprentice or scholar (f). Such an authority is absolutely necessary to the safety of the ship, and of the lives of the persons on board. But it behoves the master to be very careful in the exercise of it, and not to make his parental power a pretext for cruelty and oppression. The framers of the ancient marine ordinances appear studiously to have avoided the mention of this power. The French ordinance (g) specifies certain particular modes of punishment which the master may inflict on "drunken and disobedient mariners, and those who ill-treat their comrades, or commit other like faults in the course of their voyage," but it requires the consent of the steersman and mate. By the law of England such consent is not required; nevertheless the master should, except in cases requiring his immediate interposition, take the advice of the persons next below him in authority, as well to prevent the operation of passion in his own breast, as to secure witnesses to the propriety of his conduct: for the master, on his return to this country, may be called upon by action at law to answer to a mariner who has been beaten or imprisoned by him, or by his order, in the course of a voyage; and for the justification of his conduct, he should be able to show, not only that there was a sufficient cause for chastisement, but also that the chastisement itself was reasonable and moderate,

[blocks in formation]

tom. 1, p. 449. See also Ordinance of Phil. 2, A.D. 1563; 2 Mag. 19; Molloy, book 2, c. 3, s. 12; and the cases Watson v. Christie, 2 Bos. & Pull. 224; Aitken v. Bedwell, M. & M. 68; Rhodes v. Leach, 2 Stark. 516; Hannaford v. Hunn, 2 C. & P. 148. The master's authority to punish exists not only at sea, but also in a foreign port or river.-Lamb v. Burnett, 1 C. & J. 291.

(g) Liv. 2, tit. 1: Du Capitaine, art. 22.

otherwise the mariner may recover damages proportionate to the injury received (h).

* In the Court of Admiralty also, a mariner may obtain redress for an undue exercise of authority on the part of the master by the infliction of undeserved or excessive correction (). This jurisdiction is familiarly exercised by that Court, in what are called causes of damage, the Judge determining, on consideration of all the circumstances of the case, the plaintiff's right to maintain the action, and the amount of compensation he is entitled to receive. In estimating the defence of the master to such a suit, the Court will give little weight to charges of misconduct of a different character from that which was the immediate occasion of the punishment complained of; but it will not confine its attention to the circumstances of recent offence, where the master can justify himself by proof of similar and habitual misbehaviour (k).

With respect to the manner of the punishment which may lawfully be inflicted by the master, the judgment of Lord Stowell, in the case of the Agincourt, above cited, deserves to be inserted here. "It is hardly to be disputed," says his lordship, "that in a case of gross misbehaviour, the master of a merchant ship has a right to inflict corporal punishment upon the delinquent mariner. That right must be supported by the law of England, which is the proper authority for fixing the limits within which one subject of this realm has a right to inflict corporal suffering upon another. Upon that ground I dismiss all reference to authorities of foreign maritime law, and I regret that so little upon this subject is to be found in our own. No statutable regulations exist upon this subject. The statute relating to merchant seamen is silent upon it (). 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. the first place, that the punishment must be applied with due moderation. It is asserted, in some well-considered 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

(4) To an action of this sort, the master must plead specially that the plaintiff committed such a particular fault, and that he corrected him moderately for it. The plaintiff by his replication may either deny the cause of correction, or, admitting the cause, may insist that the correction was excessive. If the master does not plead his justification specially, he will not be entitled to give in evidence under the general issue,

In

for the purpose of mitigating damages, facts which, if pleaded, would amount to a justification.-Watson v. Christie, 4 Bos. & P. 224.

(i) The Ruckers, 4 Rob. Ad. Rep. 73. The Agincourt, 1 Hagg. 271. Lowther Castle, 1 Hagg. 384. The Enchantress, 1 Hagg. 395. The Centurion, 1 Hagg. 161. (k) See the cases of the Agincourt and the Lowther Castle.

(1) 2 Geo. 2, c. 36.

« ÀÌÀü°è¼Ó »