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EDITORS' PREFACE v

APPENDICES

TABLE OF CASES 291

INDEX 299

THE LAW OF THE SEA

This law is to be found in the statutory laws of different countries, the decisions of the courts and text-books on the subjects involved. Back of the laws of each particular country is what is termed the general maritime law or common law of the sea, which, like the common law of the land, consists of that general mass of usages and customs which exists by the universal consent and immemorial practice of those doing business by sea. It is effective within particular countries only so far as they consent to follow it, as is the case with international law, of which it is really a part. In general, however, it is recognized and enforced wherever the local laws are silent in regard to maritime transactions.

It sometimes becomes a question of some difficulty whether a particular object is or is not a vessel and subject to admiralty jurisdiction. Rev. Stat., ? 3, define "vessel" as including "every description of watercraft or other artificial contrivance, used or capable of being used as a means of transportation by water," and in General Cass, 1 Brown Adm. 334, it was said:

The true criterion by which to determine whether any watercraft or vessel is subject to admiralty jurisdiction is the business or employment for which it is intended, or is susceptible of being used, or in which it is actually engaged, rather than size, form, capacity or means of propulsion.

In one or two old cases it was held that a dredge was not a ship but the preponderance of authority is to the effect that a dredge is a ship and within admiralty jurisdiction. The question whether a raft of logs is a vessel has been variously decided. If it be a mere pile or series of floating logs it is probably not a vessel, but rafts made of cross-ties, used as a convenient mode of bringing them to market, manned by crew, who lived thereon during the voyage and propelled by the current and by poles and oars, have been held to be a ship and subject to admiralty jurisdiction. So, also, a floating bathhouse, not permanently moored, but which was towed from place to place has been held to be a vessel; whereas a floating drydock, kept permanently moored, is not a vessel. The question whether barges and floats are subject to admiralty jurisdiction has been the subject of frequent adjudication, and while some old cases held that they were not, the tendency of the modern decisions is to hold that such crafts are vessels. In the Mac, 7 P. D. 126, the question was whether a hopper barge was a ship. It was decided in the affirmative by the English Court of Appeal, Lord Justice Brett saying:

The words "ship" and "boat" are used; but it seems plain to me that the word "ship" is not used in the technical sense as denoting a vessel of a particular rig. In popular language ships are of different kinds; barques, brigs, schooners, sloops, cutters. The word includes anything floating in or upon the water, built in a particular form, and used for a particular purpose. In this case the vessel, if she may be so called, was built for a particular purpose; she was built as a hopper-barge; she has no motive power, no means of progression within herself. Towing alone will not conduct her; she must have a rudder; and, therefore, she must have men on board to steer her. Barges are vessels in a certain sense; and, as the word "ship" is not used in a strictly nautical meaning, but is used in a popular meaning, I think that this hopper-barge is a "ship".... This hopper-barge is used for carrying men and mud; she is used in navigation; for to dredge up and carry away mud and gravel is an act done for the purposes of navigation. Suppose that a saloon-barge, capable of carrying 200 persons, is towed down the river Mersey in order to put passengers on board of vessels lying at its mouth; she would be used for the purposes of navigation, and I think it equally true that the hopper-barge was used in navigation.

As to contracts, it has been equally well settled that the English rule which concedes jurisdiction, with a few exceptions, only to contracts made upon the sea and to be executed thereon is entirely inadmissible and that the true criterion is the nature and subject-matter of the contract, as whether it was a maritime contract, having reference to maritime service or maritime transactions.

Perhaps the best criterion of the maritime character of a contract is the system of law from which it arises and by which it is governed. And it is well known that the contract of insurance sprang from the law maritime, and derives all its material rules and incidents therefrom.

Salvage and general average are, strictly, neither contract nor tort, but are within admiralty jurisdiction by virtue of the general law.

Here one may trace, for example, the rule of general average, the doctrine that what is sacrificed for the common benefit shall be compensated by a common contribution, a rule of such plain and simple equity that the failure of other codes to adopt it is a constant surprise. It appears in a fragment of Greek legislation and forms the text for a chapter in the Digest of Justinian. Its antecedents were probably Phoenician. It survived the Roman Empire in the traditions of seafaring men and reappears in the compilation of sea laws which Coeur-de-Lion revised on his return from the Holy Land, the Rolls or Judgments of Ol?ron. The Black Book of the admiralty preserves it in London. It may be traced through the Middle Ages down to the York-Antwerp Rules of 1890 and the practice of adjusters of the present day.

Or one may consider the treatment of employer's liability for injuries received in the course of the employment without his personal fault. Is vicarious liability the true test or the doctrine of fellow service? The merchants of the Mediterranean had the problem in the operations of a very large and extended commerce and the maritime law evolved the doctrine that justice requires that one injured in the service of the ship should be cured at the expense of the ship, and have his wages but no more. The last word on the real equity of this solution of a perplexing economic question remains to be said, perhaps, but the student can trace its development and application through many centuries down to the current decisions of our own Supreme Court.

On no other branch of law have tradition and custom exercised a greater influence. It grew out of the necessities of navigation and commerce by sea and remains substantially uniform in spite of forms of government, racial habits and local innovations. In its essence, it is less susceptible of statutory modification than the common law and careless legislation has had only local effects, diverting business into other channels but ineffective to change the substance of the law. Maritime commerce is naturally free and the wisest commercial governments are those which regulate it least. Its freedom is a direct implication from the doctrine of the natural freedom of the seas. The extent to which governments may profitably regulate it without impairing its usefulness or diverting the current to other shores may be found in the history of this law. Underlying principles are the same whether ships move by sail or steam or electricity or are great or small. There have been large vessels before the twentieth century and an equivalent commerce. The law has remained the same. Men pay damages every day in some of our ports for overlooking rules that were current in Roman times and needless litigation is carried through appellate courts because of professional and judicial failures adequately to investigate the underlying principles of the maritime law.

The opportunities for the student are large and inviting. If this country is to do its part in the commerce of the future, its own maritime laws must be restated and reformed. This means not only the formal statutes and department regulations but also the great mass of judicial opinions of more than a hundred years. All are intertwined with each other and the result is chaotic. The fault has not been in the underlying principles of the maritime law but in legislation and interpretation. Our peculiar system has left the final word in the majority of decisions to judges trained in the common law and not professionally acquainted with any other. The result calls for the treatment which Justinian administered to the incongruous compilations, statutes and reports of his time. The student, either of business, history or law, who will apply himself to an investigation of the law of the sea and ascertain its simple fundamentals will not only have an interesting and profitable occupation but also be in a position to contribute substantially to the public welfare.

REFERENCES FOR GENERAL READING

"The first vessels were rafts. The raft is the parent of the modern ship" .

It is therefore usual to have all matters in relation to the title and transfer of a ship in writing and according to customary forms. This is a safe and salutary rule.

It is undoubtedly true that the mere facts that the vessel is to be paid for in installments as the work progresses, and to be built under the superintendence of a government inspector, who had the power to reject or approve the materials, will not of themselves work the transfer of the title of a vessel to be constructed, in advance of its completion. But it is equally well settled that if the contract is such as to clearly express the intention of the parties that the builder shall sell and the purchaser shall buy the ship before its completion, and at different stages of its progress, and this purpose is expressed in the words of the contract, it is binding and effectual in law to pass the title.

The court further held that the lien reserved in the contracts for the revenue cutter and cruiser was not superior to the liens of material men under the laws of Virginia.

Ships entitled to such registration or enrollment are:

A capital distinction to be borne in mind is that between vessels entitled to engage in coastwise trade and those not so entitled. No vessel of foreign registry may engage in that trade. No foreign-built vessel of American registry, with certain exceptions, may engage in that trade under penalty of a fine, although it is within the power of the Secretary of Commerce to waive the imposition of such fine, and this has sometimes been done where an emergency arising out of exceptional circumstances has made it necessary for an unauthorized vessel to trade between ports of the United States. Vessels entitled to engage in the coastwise trade are those which, being built within and owned by citizens of the United States, are enrolled for that trade. Vessels owned by corporations may not engage in the coasting trade unless 75 per cent. of the interest therein is owned by citizens.

Trade between the east and west coasts via the Panama Canal or Cape Horn is coastwise. Trade between ports of the United States and those of Hawaii, Porto Rico and Alaska is coasting trade, though the Shipping Board may issue permits to foreign vessels to carry passengers between Hawaii and the Pacific coast until February 1, 1922. Trade between ports of the United States and those of the Philippine Islands is by statute not coasting until February 1, 1922. Thereafter it is governed by Sec. 21 of the Merchant Marine Act, which will be found in the Appendix. Trade between ports of the United States and those of the Panama Canal Zone is not coasting.

The law further requires that every change in the title, command or structure of the ship shall be promptly reported and placed for record in the Collector's office, so that at any time her present status, the name of her commander and entire past history may be fully shown upon its books, and the Collector will furnish on request an abstract of the title which his records disclose. This abstract, of course, becomes important whenever the ship is sold or used as security, although it will not show anything in regard to maritime liens upon it since these are, in their nature, secret.

Under present practice the owners of a ship usually incorporate. Such corporations take the complete title and are treated as the sole owner in all respects. There is nothing in the admiralty law which differentiates corporations from other owners. It is also popular to incorporate as "single ship companies" and in this way a double protection against liabilities in excess of the amount invested may be obtained.

The sale of a ship becomes a necessity within the meaning of the commercial law, when nothing better can be done for the owner, or those concerned in the adventure.... In order to justify the sale, good faith in making it and the necessity for it must both concur, and the purchaser to protect his title must be able to show their concurrence. The question is not whether it is expedient to break up a voyage and sell the ship, but whether there was a legal necessity to do it. If this can be shown, the master is justified; otherwise not. And this necessity is a question of fact, to be determined in each case by the circumstances in which the master is placed, and the perils to which the property is exposed.

If the master can within a reasonable time consult the owners, he is required to do it, because they should have an opportunity to decide whether in their judgment a sale is necessary.

At this point it may be observed that modern means of communication by cable and wireless render consultation with the owner feasible in many instances where it was not formerly possible, and there can be no doubt that it is the master's duty to avail himself of these means before selling the vessel. The court proceeds:

He should never sell, when in port with a disabled ship without first calling to his aid disinterested persons of skill and experience, who are competent to advise, after full survey of the vessel and her injuries, whether she had better be repaired or sold. And although his authority to sell does not depend on their recommendation, yet, if they advise a sale, and he acts on their advice, he is in a condition to furnish the court or jury reviewing the proceedings strong evidence in justification of his conduct.

In this case the ship was surveyed by competent surveyors, who made a full report and advised that the vessel be sold as the cost of repairs would exceed her value. The court continued:

After this advice, the master who was bound to look to the interest of all parties concerned in the venture, had no alternative but to sell. In the face of it, had he proceeded to repair his vessel, he would have been culpable. Being in a distant port, with a disabled vessel, seeking a solution of the difficulties surrounding him; at a great distance from his owners, with no direct means of communicating with them; and having good reason to believe the copper of his vessel was displaced, and that worms would work her destruction, what course so proper to pursue as to obtain the advice "of that body of men who by the usage of trade have been immemorially resorted to on such occasions?" . No prudent man, under the circumstances, would have failed to follow their advice, and the state of things, as proved in this case, imposed on the master a moral necessity to sell his vessel and reship his cargo.

It is insisted, even if the circumstances were such as to justify the sale and pass a valid title to the vendee, he, nevertheless, took the title subject to all existing liens. If this position were sound, it would materially affect the interests of commerce, for, as exigencies are constantly arising, requiring the master to terminate the voyage as hopeless, and sell the property in his charge for the highest price he can get, would any man of common prudence buy a ship sold under such circumstances, if he took the title encumbered with secret liens, about which, in the great majority of cases, he could not have the opportunity of learning anything? The ground on which the right to sell rests is, that in case of disaster, the master, from necessity, becomes the agent of all parties in interest and is bound to do the best for them that he can, in the condition in which he is placed and, therefore, has the power to dispose of the property for their benefit. When nothing better can be done for the interests of those concerned in the property than to sell, it is a case of necessity, and as the master acts for all, he sells as well for the lien holder as the owner. The very object of the sale, according to the uniform current of the decisions, is to save something for the benefit of all concerned; and if this is so, the proceeds of the ship, necessarily, by operation of law, stand in place of the ship. If the ship can only be sold in case of necessity, where the good faith of the master is unquestioned, and if it be the purpose of the sale to save something for the parties in interest, does not sound policy require a clean title to be given the purchaser in order that the property may bring its full value? If the sale is impeached, the law imposes on the purchaser the burden of showing the necessity for it, and this he is in a position to do, because the facts which constitute the legal necessity are within his reach; but he cannot know, or be expected to know, in the exercise of reasonable diligence, the nature and extent of the liens that have attached to the vessel. Without pursuing the subject further, we are clearly of the opinion, when the ship is lawfully sold, the purchaser takes an absolute title divested of all liens, and that the liens are transferred to the proceeds of the ship, which in the case of the admiralty law becomes the substitute for the ship.

The sale in this case was made by parole; the master delivered the vessel to the purchaser, without, so far as appeared, executing any document evidencing the sale. On this subject, the court said:

The title of Reviere, the claimant, was questioned at the bar, because he did not prove the master executed to him a bill of sale of the vessel. We do not clearly see how this question is presented in the record, for there is no proof, either way, on the subject, but if it is, it is easily answered. A bill of sale is not necessary to transfer the title to the vessel. After it was sold and delivered, the property was changed and no written instrument was needed to give effect to the title. The rule of common law on this subject has not been altered by statute. The law of the United States which requires the register to be inserted in the bill of sale on every transfer of a vessel, applies only to the character and privileges of the vessel as an American ship. It has no application to this vessel in this case.

In the case of a transfer of a vessel at sea, where it is desired to preserve her nationality, it is necessary, upon her arrival at her home port, to deliver up her certificate of registration and obtain a new certificate.

REFERENCES FOR GENERAL READING

John Jay, 17 How. 399.

Rev. St., ? 4170, is as follows:

"Whenever any vessel, which has been registered, is, in whole or in part, sold or transferred to a citizen of the United States, or is altered in form or burden, by being lengthened or built upon, or from one denomination to another, by the mode or method of rigging or fitting, the vessel shall be registered anew, by her former name, according to the directions hereinbefore contained, otherwise she shall cease to be deemed a vessel of the United States. The former certificate of registry of such vessel shall be delivered up to the collector to whom application for such new registry is made, at the time that the same is made, to be by him transmitted to the Register of the Treasury who shall cause the same to be canceled. In every such case of sale or transfer there shall be some instrument of writing, in the nature of a bill of sale, which shall recite at length, the certificate; otherwise the vessel shall be incapable of being so registered anew."

While a vessel is part of the territory of her home jurisdiction for jurisdictional purposes, the doctrine of her territoriality does not extend to treating her as part of the soil for all purposes. Thus the Supreme Court has held that foreign seamen brought to the United States to work on an American ship engaged in foreign commerce, were not engaged "to perform labor within the United States" within the meaning of the contract labor law.

Generally speaking, the part-owners of a ship occupy the legal status of tenants in common. They may, of course, become partners and subject to the legal incidents of partnership. If they so agree, or if they act in such a manner, they assume the attributes of partnership, one of the chief of which is the liability of each individual partner for the entire indebtedness of the firm .

The Daniel Kaine, 35 Fed. 785, was a contest over the surplus remaining in the registry of the court from the sale of a tow-boat. This had been allotted to the several part-owners in proportion to their shares, but the master, who was one of the owners, claimed a lien against the entire fund for advances made by him on the theory that the owners held the vessel in partnership and not merely as individual co?wners. The Court said:

The burden of proof is upon Captain Cowan to establish the allegation contained in his petition, but which is denied in the answer thereto, that the shareholders in the Daniel Kaine were not tenants in common but partners ino sound. She was growing impatient. She took a few steps forward, keeping one hand extended in front of her to avoid collision. Then she turned and retraced her steps.

She paced back and forth in the small space which she had explored and found free from obstruction. Three steps forward and turn--three steps back and turn; pausing each time to hold her breath and listen, while the fingers of her left hand involuntarily crept down and pressed against the keen point of the dagger until it pierced through her glove and entered the tender flesh.

Suddenly a white ray of light shot through the transom above her, falling at an angle against a projection in the wall at her left, and dimly illuminating the entire place. It was six o'clock, and the large arc light just outside was turned on. Then, as she reached the door and whirled quickly in her march, she saw her for whom she waited standing at the extreme farther end of the long hall. Between them was what appeared to be a narrow and ornamented archway.

She could dimly distinguish the figure clad in gray. The face, like her own, was veiled. She noticed with quick satisfaction that her disguise was perfect--the counterpart was exact even to the smallest detail.

Without hesitation, and concealing the dagger in the folds of her dress, she advanced quickly and silently toward her rival, who, somewhat to her surprise, instead of fleeing or crying out, also advanced. She was going to try strength with her.

"I will kill her with a blow," she muttered.

They were now within a few feet of each other--the ornamented arch exactly between them. Suddenly Evelin March snatched the dagger from its concealment and raised it aloft to strike. As she did so her rival made precisely the same movement, and something glittered in her hand also. Both took a quick, forward step, and each, at the same instant, struck fiercely with a swinging, downward blow.

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