Part III.

was it thought to make any difference, that he intended thereby to promote his owners' interest. It is not for him to judge in cases not entrusted to his discretion, or to suppose that he is not breaking the trust reposed in him, but acting meritoriously, when he endeavours to advance the interests of his owners by means which the law forbids, and which his owners must be taken to have forbidden, not only from what ought to be, and therefore must be presumed to have been, their own sense of public duty, but also from a consideration of the risk and loss likely to follow from the use of such means. But an error of judgment in matters entrusted to his discretion, and not contrary to law, admits of a different consideration; and accordingly, when in an action on a policy of insurance, the loss being alleged by barratry of the master, it appeared that his ship having sprung a leak, he took her into port, and before any survey made, broke up her ceiling and end-bows with crowbars, thereby injuring and weakening her, Lord ELLENBOROUGH, addressing the counsel for the plaintiff, said, "To constitute barratry, which is a crime, the captain must be proved to have acted against his better judgment; as the case stands, there is a whole ocean between you and barratry" (a).

Barratry may be committed with the privity of the freighters against the owner, or by the owners or master against the general freighter (b). One part-owner, being master, may commit barratry against another (c), but if the master be sole owner, he cannot commit barratry against himself (d).

2. Acts of Barratry punishable by Statute.

[But though this word, taken even in the more limited sense in which it is used in this country, does not denominate any crime punishable by law, yet several offences committed by the master and mariners, in violation of their trust and duty, and which fall within the definition of barratry, are punishable by different statutes.]

The 24 & 25 Vict. c. 97, ss. 42-49, contains provisions as to the punishment of persons setting fire to, casting away, or damaging, &c., ships, see 2 Russ. on Crimes, by Prentice, p. 958; and by 24 & 25 Vict. c. 100, s. 13, a person is guilty of felony who sets fire to a ship, &c., with intent to commit murder. See 1 Russ. on Crimes, by Prentice, p. 912.

(a) Todd v. Ritchie, 1 Stark. Rep. 240. See Grell v. General Iron Screw Collier Company, 37 L. J. C. P. 205; L. R. 3 C. P. 476, where a contravention of the rules of the Merchant Shipping Acts in starboarding instead of porting the ship's helm, was held not to amount to barratry within the meaning of a bill of lading.

(b) Vallejov. Wheeler, Cowp. 143. Soares v. Thornton, 7 Taunt. 627.

(c) Jones v. Nicholson, 10 Exch. 28. Boutflower v. Wilmer, 2 Selw. 976. Bell's Principles of the Law of Scotland, p. 188. (d) Ross v. Hunter, 3 Term R. 33. Nutt v. Bourdeaux, 1 T. R. 323. Stamma v. Brown, 2 Strange, 1173.

3. Barratrous Disposal of Ship and Cargo.

[Secondly, as to the offences of running away with the ship or cargo, and of making a revolt in the ship.

By a statute passed in the reign of King William the Third (e), it is enacted, "That if any commander or master of any ship, or any seaman or mariner, shall in any place where the admiral hath jurisdiction betray his trust, and turn pirate, enemy, or rebel, and piratically and feloniously run away with his or their ship or ships, or any barge, boat, ordnance, ammunition, goods or merchandises; or yield them up voluntarily to any pirate; or shall bring any seducing messages from any pirate, enemy, or rebel; or consult, combine, or confederate with; or attempt or endeavour to corrupt any commander, master, officer, or mariner to yield up or run away with any ship, goods, or merchandises; or turn pirate, or go over to pirates; or if any person shall lay violent hands on his commander, whereby to hinder him from fighting in defence of his ship and goods committed to his trust; or shall confine his master, or make or endeavour to make a revolt in the ship-he shall be adjudged, deemed, and taken to be a pirate, felon, and robber, and being convicted thereof according to the directions of this Act, shall have and suffer pains of death, loss of lands, goods and chattels, as pirates, felons, and robbers upon the seas ought to have and suffer" (ƒ).]

4. Not resisting Pirates.

[Thirdly, as to the offence of not resisting pirates and enemies (g). It appears formerly to have been a practice with the Turkish pirates to restore a ship, and the goods of the master and mariners, and sometimes even to pay the whole or a part of the freight, if the ship yielded to them, and they were suffered to take out the cargo without resistance. To prevent this practice, a statute was passed so long ago as the reign of King Charles the Second, in the preamble whereof this practice is recited, and by which the master of any vessel of a burden not less than two hundred tons, and furnished with sixteen guns, is forbidden to yield his cargo to pirates of any force without resistance, on pain of being rendered incapable to take charge of any English vessel afterwards; and if the ship be released, and anything given by the pirates to the master, such gift and his share of the ship are to go to the owners of the goods. And any ship of less burden or force than before-mentioned is forbidden to]

(e) 11 & 12 Will. 3, c. 7, s. 9, made perpetual by 6 Geo. 1, c. 19.

(f) As to the place, &c., of trial, and as to the present punishment under this enact

ment, see 1 Russ. on Crimes, by Prentice,
p. 253; 1 Vict. c. 88.

(g) [See Hanseatic Ordinance, arts. 35-37
and Roccus, Not. 70].

Chap. 5.

Part III. [yield to a Turkish pirate, not having double her number of guns, without fighting (a); an extraordinary instance of the courage and skill which the legislature of those times attributed to English seamen, and which the exploits of succeeding generations have so often and so gloriously exemplified!

By the same statute (22 & 23 Car. 2, c. 11, s. 7) it is enacted, "That if the mariners or inferior officers of any English ship, laden with goods and merchandises as aforesaid, shall decline or refuse to fight and defend the ship, when they shall be thereunto commanded by the master or commander thereof, or shall utter any words to discourage the other mariners from defending the ship, every mariner who shall be found guilty of declining or refusing as aforesaid, shall lose all his wages due to him, together with such goods as he hath in his ship, and suffer imprisonment, not exceeding the space of six months, and shall during such time be kept to hard labour for his or their maintenance (b)].

(a) 16 Car. 2, c. 6 (repealed); 22 & 23 Car. 2, c. 11.

(b) See 11 & 12 Will. 3, c. 7, s. 9, ante 139.

Chap. 6.

CHAPTER VI.

OF THE LAWS FOR THE ENCOURAGEMENT AND PROTECTION OF
MERCHANT SEAMEN; AND HEREIN,

SECT. 1. Legal Provision for Seamen disabled in Fight with Pirates and Enemies, p. 141.
2. Corporation erected for the Relief of maimed and disabled Seamen, and of the

Widows and Children of Seamen killed, slain, or drowned in the Merchant
Service, or who have contributed to the Fund raised for that purpose, p. 142.
3. Provisions for preserving the Health of Seamen, and for their relief when falling
Sick at Sea, or hurt in the Performance of their Duty, p. 143.

4. Regulations for the Protection of Seamen from Imposition, p. 144.

5. Offence of Master improperly discharging Mariners abroad, forcing them on
Shore, or wrongfully leaving them behind; and Provisions for the Relief of
Seamen abandoned, shipwrecked, captured, or cast away, p. 145.

6. Regulations for the Registration of Merchant Seamen, p. 145.

1. Legal Provision for Seamen disabled in Fight with Pirates and Enemies.

[THE legislature has not been less studious to reward and provide for deserving mariners, than to punish the fraudulent or the fearful. To this purpose it has been enacted (c), "That when any English ship shall have been defended against any pirates, enemies, or sea-rovers by fight, and brought to her destined port, in which fight any of the officers or seamen shall have been killed or wounded, it shall and may be lawful to and for the judge of his Majesty's High Court of Admiralty, or his surrogate in the port of London, or the mayor, bailiff, or chief officer in the several outports of this kingdom, upon the petition of the master or seamen of such ship, so defended as aforesaid, to call unto him four or more good and substantial merchants, and such as are no adventurers or owners of the ship or goods so defended, and have no manner of interest therein, and by advice with them to raise and levy upon the respective adventurers and owners of the ship and goods so defended, by process out of the said court, such sum or sums of money as himself and the said merchants, by plurality of voices, shall determine and judge reasonable, not exceeding two pounds per centum of the freight, and of the ship]

(e) [11 & 12 Will. 3, c. 7, s. 11. See also 22 & 23 Car. 2, c. 11, s. 10.

By the Hanseatic Ordinance, art. 53, a seaman disabled in defending a ship against rovers is to be maintained during his life at

the common charge of the concerned, in a
general average; and the Hanseatic Ordi-
nance of the year 1614 is to the same effect,
tit. 14, art. 3].

Part III. [and goods so defended, according to the first cost of the goods; which sum or sums of money so raised shall be distributed among the captain, master, officers, and seamen of the said ship, or widows and children of the slain, according to the direction of the judge of the said court, or his surrogate in the port of London, or the mayor, bailiff, or chief officer in the several outports of this kingdom, with the approbation of the merchants aforesaid, who shall proportion the same according to their best judgment unto the ship's company as aforesaid, having special regard unto the widows and children of such as shall have been slain in that service, and such as have been wounded or maimed."

By two subsequent statutes, seamen in the merchant service disabled in fight against a pirate (a) or enemy (b), were to be admitted into and provided for in Greenwich Hospital, the great asylum for decayed and disabled seamen belonging to the royal navy.]

2. Corporation erected for the Relief of maimed and disabled Seamen, and of the Widows and Children of Seamen killed, slain, or drowned in the Merchant Service, or who have contributed to the Fund raised for that purpose.

[But that hospital having been found insufficient for this addition to the primary objects of its institution, another national establishment was erected] by the 20 Geo. 2, c. 38 (now repealed), by which Act a corporation was created, composed chiefly of eminent merchants, by the name of "The President and Governors for the relief and support of maimed and disabled seamen, and the widows and children of such as shall he killed, slain, or drowned in the merchant service." To this corporation the management of the fund to be raised under the provisions of the Act was entrusted, with power to purchase land and erect an hospital, to supply vacancies that might occur in the places of president, assistants, governors, and members, and for making and altering the bye-laws, constitutions, and ordinances of the said corporation. After this was passed the 4 & 5 Will. 4, c. 52 (c), for making provision for disabled seamen and their families.

This Act having, however, been found inadequate for the purposes for which it was established, an Act, called "The Seaman's Fund Winding-up Act," 1851, was passed, for bringing it to an end, and satisfying the just demands of persons having claims upon it (d). By this Act and the Merchant Shipping Acts, the objects contemplated by the statutes before mentioned are to be effected, it may be hoped in a more satisfactory manner.

(a) 8 Geo. 1, c. 24.

(b) 8 Geo. 2, c. 29, s. 10.

c. 120.

(c) Now repealed; see 17 & 18 Vict. (d) 14 & 15 Vict. c. 102.