damage that may happen to the ship or cargo, by his negligence or unskilfulness, if he is of ability to do so, yet he cannot be punished as a criminal for mere incompetence.

By the Mercantile Marine Act, 13 and 14 Vict. c. 93, and the Merchant Shipping Act, 1854, the Local Marine Boards are required to provide for the examination at their respective ports of persons who intend to become masters or mates of foreign-going or home-trade passenger ships, or who wish to procure certificates of their competency, and may appoint, remove, and re-appoint examiners to conduct such examinations, and otherwise regulate them (b).

Rules may be laid down, as to the conduct of such examinations and the qualification of the applicants, by the Board of Trade, and no examiner is to be appointed unless he possesses a certificate of qualification, granted by it (c).

The Board of Trade may depute any of its officers to assist at such examinations, and when they have been passed satisfactorily, and the applicant has given evidence of his sobriety, experience, ability, and general good conduct on ship-board, the Board of Trade may, upon a report from the local examiners, deliver to him a certificate of competency, to act as first, second, or only mate of a foreign-going ship, or master or mate of a home-trade passenger ship (d).

If the Board of Trade has reason to believe such report to have been unduly made, it may remit the case either to the same or to any other examiners, and require a re-examination of the applicant, or a further inquiry into his testimonials and character, before granting him a certificate (e).

Certificates of service, differing in form from certificates of competency, are to be granted by the Board of Trade to persons who prove themselves entitled thereto, under the following regulations (ƒ).

Every person who, before the 1st of January, 1851, served as master in the British merchant service, or who has or shall hereafter attain 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, shall be entitled to a certificate of service as master for foreign-going ships.

Every person who before the same date served as mate in the British merchant service shall be entitled to a certificate of service as mate for foreign-going ships.

Every person who, before the 1st of January, 1854, has served as master of a home-trade passenger ship shall be entitled to a certificate of service as master of home-trade passenger ships.

Every person who before that date has served as mate of a hometrade passenger ship shall be entitled to a certificate of service as mate for home-trade passenger ships.

No foreign-going ship or home-trade passenger ship shall go to sea from any port of the United Kingdom unless her master, and in the case of a foreign-going ship, the first and second mates, or only mate,

(b) 17 & 18 Vict. c. 104, s. 131. (c) Sec. 132.

(d) Sec. 134.

Sec. 134.

(f) Sec. 135.

have obtained and possess certificates either of competency or service, appropriate to their several stations in such ship, or of a higher grade (g). No ship of 100 tons burden or upwards shall go to sea unless at least one officer besides the master has obtained and possesses a certificate appropriate to the grade of only mate therein, or to a higher grade (h).

Every person who having been engaged to serve as master, or as first or only mate of a home-trade passenger ship, goes to sea as such master or mate, without being at the time entitled to and possessed of such certificate, or who employs any person in any of these capacities without first ascertaining that the person so employed is at the time entitled to such certificate as above required, is liable to a penalty of 50l. (i). Certificates of competency for foreign-going ships are to be deemed of a higher grade than the corresponding grades for home-trade passenger ships, and entitle the holder of them to go to sea in the corresponding grade in such last-mentioned ships (k). But no certificate for a home-trade passenger ship will entitle the holder to go to sea as master or mate of a foreign-going ship (1).

Certificates of competency and of service are to be made in duplicate; one part to be delivered to the person entitled to it, the other kept and recorded by the registrar-general of seamen, or by such other person as the Board of Trade may appoint (m). Immediate notice is to be given to such registrar or other person of all orders made by it for cancelling, suspending, altering or affecting these certificates; and such registrar or other person is to make a corresponding entry in the Record of Certificates (n). A copy of a certificate, purporting to be certified by such registrar, or his assistant, or such other person, is to be prima facie evidence of such certificate, and a copy purporting to be so certified of any entry made as aforesaid in respect of any certificate, is to be prima facie evidence of the truth of the matters in such entry (o).

The Board of Trade, in case of loss without fault by any master or mate of his certificate, may direct a copy of the certificate, to which he appears by the record to be entitled, to be made out, certified, and delivered to him; and such copy is to have all the effect of the original (p).

Ön signing the agreement with his crew, the master of every foreign-going vessel shall produce to the shipping master, before whom the same is signed, the certificate of competency or service which such master and his first and second mate, or only mate, are required to possess; and shall receive from the shipping master a certificate of his having done so, and having signed the agreement. The master of every foreign-going ship shall, before proceeding to sea, produce the certificate, so to be given to him by the shipping master, to the collector or comptroller of Customs; and no officer of Customs shall clear any foreign-going ship outwards, or permit her to proceed to sea, without such production (q).

The master or owner of home-trade passenger ships of more than eighty tons burden shall, twice in every year, produce to the shipping

(g) Sec. 136. (h) Ibid.

(i) Ibid.
(k) Sec. 137.

(7) Ibid.
(m) Sec. 138.

(n) Ibid.
(0) Ibid.

(p) Sec. 139. (q) Sec. 161.

master the certificates of competency or service, which he and his first or only mate, as the case may be, are required to possess (r).

The shipping master shall thereupon give to the master a certificate of such delivery and production; and no officer of Customs shall grant a clearance or transire for any such ship, without the production of such certificate. And if any such ship at empts to ply, or go to sea without such clearance or transire, any such officer may detain her until such certificate is produced (s).

Every person implicated in obtaining by false representation, or in forging, altering, using or lending, any such certificate, or copy of certificate, is for every such offence to be deemed guilty of a misdemeanor (t).

2. The other persons employed in the ordinary navigation of a trading ship, fall under the general denomination of mariners and

seamen.

For the employment of a British ship, it was, until the session of Parliament A. D. 1853, necessary that the master, and a certain proportion of the mariners, should in many cases be British subjects. So long ago as the reign of Queen Elizabeth, it was made unlawful to lade or carry any fish, victual, or other things in any bottom, whereof a stranger born was ship-master, from one part of the realm to another (u). An ordinance made in the time of the Usurpation required, in some particular cases, the master and mariners, or the most part of them, to be of the people of the Commonwealth (a). The celebrated Navigation Act, which passed immediately after the Restoration, required the master and three-fourths of the mariners to be subjects of the King, wherever it required a trading ship to be either English-built or English-owned (y); and by a statute passed in the following year, "the number of mariners was to be accounted according to what they should have been during the whole voyage"). These regulations, however, having been found inconvenient in time of war, several temporary statutes (a) allowed, during such periods, the employment of three-fourths foreign seamen; and the two first of those statutes conferred the privileges of British subjects upon foreign seamen after two years' service in the time of war, either on board a ship of war, or a merchant or trading vessel.

This subject was further regulated by a statute passed in the thirty-fourth year of the reign of George the Third, as to Great Britain (b); and by another statute passed in the forty-second of the same reign, as to Ireland (c). But that statute, and all others relating to the subject, having been repealed in the sixth year of the reign of King George the Fourth, it was, by a statute of that year,

Sec. 162.
Ibid.

(t) Sec. 140.

(u) 5 Eliz. c. 5, s. 8, under forfeiture of the goods. To which the ordinance of the 9th of October, 1651, and the Navigation Act, add also the forfeiture of the vessel.

(x) Ordinance of the 9th of October, 1651, Scobell's Acts.

(y) 12 Car. 2, c. 18. See Reeves' Law of Shipping and Navigation, pp. 304, 305.

(z) 13 & 14 Car. 2, c. 11, s. 6.

(a) 6 Anne, c. 37; 13 Geo. 2, c. 3; 28 Geo. 2, c. 16; 19 Geo. 3, c. 14; 33 Geo. 3, c. 26; 43 Geo. 3, c. 64.

(7) 34 Geo. 3, c. 68.
(c) 42 Geo. 3, c. 61.

and subsequently by the 3 & 4 Wm. 4, c. 54, the 8 & 9 Vict. c. 88, and the 12 & 13 Vict. c. 29, enacted, that no ship should be admitted to be a British ship, unless duly registered and navigated as such; and that every British registered ship (so long as the registry of such ship shall be in force, or the certificate of such register retained for the use of such ship) should be navigated during the whole of every voyage (whether with a cargo or in ballast), in every part of the world, by a master who is a British subject, and by a crew whereof three-fourths at least are British seamen; and if such ship be employed in a coasting voyage from one part of the United Kingdom to another, or in a voyage between the United Kingdom and the islands of Guernsey, Jersey, Alderney, Sark, or Man; or from one of the said islands to another of them, or be employed in fishing on the coasts of the United Kingdom, or any of the said islands, then the whole of the crew shall be British seamen (d). And it was further enacted, that no person should be qualified to be master of a British ship, or to be a British seaman, within the meaning of the Act, except natural-born subjects of her Majesty, or persons naturalized by Act of Parliament, or act of some British colonial legislative authority, or made denizens, or who have become British subjects by virtue of conquest, or cession of some newly-acquired country, who should have taken the oath of allegiance, or the oath of fidelity required by the treaty or capitulation; Asiatic sailors or Lascars, being natives of any of the places within the limits of the charter of the East India Company, and under the government of her Majesty, or the said Company; and persons who had served on board some of her Majesty's ships of war, in time of war, for the space of three years.

But the 12 & 13 Vict., which required every British ship to be navigated by a master who is a British subject, and by a crew of whom the whole, or such proportion as therein mentioned, are British subjects, has been repealed (e). Foreign ships carrying goods or passengers are now subject to the exercise by her Majesty of the same powers (f), in respect of them, as she may exercise in respect of foreign ships employed in the over-sea trade, and to the same laws and regulations as British ships admitted to the coasting trade of the United Kingdom, to the trade of the Channel Islands (g), and between them and the United Kingdom; and there is no restraint on the employment of foreigners in British ships.

CHAPTER II.

OF THE AUTHORITY OF THE MASTER WITH REGARD TO THE EMPLOYMENT OF THE SHIP; AND HEREIN,

(Ss.) 1. Of the different kinds of Contract under which Merchant Ships are employed. 2. Owners of Ships are bound by Contracts of the Master, relative to the usual course of the Ship's employment.

3. Cases upon this subject.

4. Master's Authority, when limited.

5. Ground of the Liability of Owners on the Contracts of the Master.

1. A TRADING ship is employed by virtue of two distinct species of contract: First. The contract by which an entire ship, or at least the principal part thereof, is let for a determined voyage to one or more places. This is usually done by a written instrument, signed and sealed, and called a charter-party. Secondly. The contract by which the master or owners of a ship destined on a particular voyage engage separately, with a number of persons unconnected with each other, to convey their respective goods to the place of the ship's destination. A ship employed in this manner is usually called a general ship.

The nature of each of these contracts will form the subject of particular discussion hereafter (a). In the present chapter it is proposed to consider only the power of the master to bind the owner of the ship by these engagements (6).

2. The owners rarely navigate a trading ship by themselves; the conduct and management of it are almost always entrusted to the master, whether he has or has not a partial property in it. In the latter case he is the confidential servant or agent of the owners at large; in the former, of his co-partners. In either case, by the law of England, and in conformity to the rules and maxims of that law in analogous cases, the owners are bound to the performance of every lawful contract made by him relative to the usual employment of the ship. They are bound to this performance by reason of their employment of the ship, and of the profit derived by them from that employment (c). One part-owner, who dissents from a particular voyage in the manner mentioned in a preceding chapter (d), is not bound, because he does not employ the ship on that voyage, nor derive any profit from it (e). The course of the usual employment of the ship is evidence of authority given by the owners to the master to make for them and on their behalf a contract relating to such employment, and

(a) Part 4, ch. 1, 2, 3, 4.

(b) Now perhaps more frequently by a written instrument not under seal, called a Memorandum of Charter.

(c) See Molloy, b. 2, ch. 2, s. 14.

(d) Part 1, ch. 3, s. 3, p. 68.

(e) By Holt, Ch. J., in Boson v. Sandforth, Carth. 63.