Read Ebook: The Law of the Sea A manual of the principles of admiralty law for students mariners and ship operators by Brinton J Y Jasper Yeates Canfield George L George Lewis Dalzell George W George Walton

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The duties and powers of masters of vessels in regard to cargo, as they develop out of the exigencies of navigation and the varied situation abroad, are much broader than those of the agents of carriers by land, because the circumstances are so very different. Such a master has authority to do whatever is really necessary to preserve the interests of an absent owner or consignees. He is bound to the exercise of diligence and good faith to give the owner or consignee timely information; and to follow instructions if they can be obtained. If his possession of the goods is interfered with by legal process or seizure, he must give notice, if possible, and in the meantime take all proper steps to protect or recover the goods. He may be bound to take legal proceedings or answer for the damages caused by his failure to do so.

Such dealing with the cargo must be prudent and in the interest of the cargo-owner; the master must not sacrifice the cargo to the ship more than the ship to the cargo. If he can prudently delay for communication with the owner he must do so; the exercise of this power depends upon the necessity and the utmost good faith.

The general principles of law are not in dispute, viz., that the authority of the master of a ship to sell goods of an absent owner is derived from the necessity of the situation in which he finds himself placed; and consequently that, to justify his thus dealing with the goods he must establish the necessity for the sale; and his inability to communicate with the owner and obtain his instructions. Under these conditions and by force of them the master becomes the agent of the owner, not only with power but under the obligation of acting for him; but he is not in any case entitled to substitute his own judgment for the will of the owner in the strong act of selling the goods where it is possible, as hereafter explained, to communicate with the owner and ascertain his will.

The Council defined the necessity of sale as meaning "that the course taken must be clearly highly expedient," "the best and most prudent thing to be done for the interest of the owner of the goods," and said:

A sale of cargo by the master may obviously be necessary in the above sense of the word, although another course might have been taken in dealing with it; for instance, if, in this case, the wool, which had no value but as an article of commerce, could have been dried and repacked and then stored or sent on, but at a cost to the owner clearly exceeding any possible value to him when so treated, it would plainly have been the duty of the master to sell, as a better course for the interest of the owner of the property than to save it by incurring in his behalf a wasteful expenditure. In other words, a commercial necessity for the sale would then arise, justifying the master in resorting to it.

On the subject of the necessity for communicating with the owners of the cargo, the Council say:

The possibility of communicating with the owners must, of course, depend on the circumstances of each case, involving the consideration of the facts which create the urgency for an early sale; the distance of the port from the owners; the means of communication which may exist; and the general position of the master in the particular emergency. Such communication need only be made when an answer can be obtained, or there is a reasonable expectation that it can be obtained before the sale. When, however, there is ground for such an expectation every endeavor, so far as the position in which he is placed will allow, should be made by the master to obtain the owner's instructions.

There can be no doubt that the master is bound to employ the telegraph as a means of communication where it can usefully be done, but in this case the state of the particular telegraph, the way it was managed, and how far explanatory messages could be transmitted by it, having regard to the time and circumstances in which the master was placed, were proper subjects to be considered by the jury, together with the other facts, in determining the practicability of communication.

The law in respect to maritime hypothecations is, in general, well settled. The master of the ship is the confidential servant or agent of the owners, and they are bound to the performance of all lawful contracts made by him, relative to the usual employment of the ship, and the repairs and other necessaries furnished for her use. This rule is established as well upon the implied assent of the owners as with a view to the convenience of the commercial world. As, therefore, the master may contract for repairs and supplies, and thereby, indirectly, bind the owners to the value of the ship and freight, so, it is held that he may, for the like purposes, expressly pledge and hypothecate the ship and freight, and thereby create a direct lien on the same, for the security of the creditor. But the authority of the master is limited to objects connected with the voyage, and, if he transcends the prescribed limits, his acts become, in legal contemplation, mere nullities. Hence, to make a bottomry bond executed by the master a valid hypothecation of the ship, it must be shown by the creditor that the master acted within the scope of his authority; or, in other words, it must be shown that the advances were made for repairs and supplies necessary for effectuating the objects of the voyage, or the safety and security of the ship; and no presumption should arise that such repairs and supplies could be procured upon any reasonable terms, with the credit of the owner independent of such hypothecation. If, therefore, the master have sufficient funds of the owner within his control, or can procure them upon the general credit of the owner, he is not at liberty to subject the ship to the expensive and disadvantageous lien of an hypothecatory instrument.

While the master is bound to follow instructions as to the course of his voyage, and may not deviate unless forced to do so by stress of weather or for the safety of vessel, crew or cargo, he may always deviate from his course for the purpose of saving life. He is not bound to lie by or delay his voyage for the purpose of preserving the property of third persons, though he may deviate, in the exercises of a sound discretion, to save property in peril.

All cases of offenses or of misconduct by members of the crew are required to be recorded; also all cases of illness, death, birth and marriage on board; the name of any seaman who ceases to be a member of the crew; the wages of any seaman who dies during the voyage; the sale of the effects of any such seaman, and a description of any collision that may occur.

In introducing a ship's log in evidence, it must be proved in the same manner as any other document; that is to say, it enjoys no special evidentiary status.

In case of damage or disaster during the voyage, or suspicion thereof, the master should within twenty-four hours of his arrival in port cause a notary public or consul to "note a protest" in regard to the fact; this "noted protest" should be extended before a notary as soon thereafter as possible, and at any rate, on arrival at destination and while recollection is fresh. The extended protest will be upon the usual form and contain a plain account of the misfortune and damage. As it will form the basis of any claim of underwriters or adjustment of damages, great care should be taken to express the facts clearly and according to their legal results. The master is charged with this duty and should execute the protest, together with his officers and such of the crew as have knowledge of the facts involved.

REFERENCES FOR GENERAL READING

Niagara, 21 How. 7.

Nebraska, 75 Fed. 598.

Rupert, 213 Fed. 263.

Spedden, 184 Fed. 283.

Yarkand, 120 Fed. 887.

Ponce, 178 Fed. 76.

Ancaios, 170 Fed. 106.

Aguan, 48 Fed. 320.

Trigg, 37 Fed. 708.

There are a few instances in which a master need not be licensed. All masters of steamers must be licensed, all masters of sailing vessels of over 700 tons and all vessels of over 100 tons carrying passengers for hire . Other masters need not be licensed.

The rules referred to are "Rules of Practice for the Courts of the United States in Admiralty and Maritime Jurisdiction on the instance side of the court."

"Officers of steamboats and passenger vessels should be exceedingly careful before putting a passenger under arrest. They are the servants of the passengers on their boats, paid for the purpose of treating them kindly. The trouble on this occasion arose from a misapprehension on the part of the captain of the steamer of his power and duty as master of the ship. The master of a passenger steamer is an exceedingly important officer. He should be of exceptional firmness, intelligence and character, and more than ordinarily endowed with common sense and tact and always gentle and courteous. He has vast power in dealing with passengers in situations that are liable to and do arise on his vessel, and he may in a proper case after exhausting pacific measures, place a passenger under arrest, but, to suppose, as he testified he did, that he could delegate this authority to minor officials or others on board, cannot be sanctioned. When the time comes to arrest passengers, an occurrence on a steamboat only second in importance to navigating the vessel in safety, it is his duty to properly care for and protect them as far as is reasonably possible, and personally to exercise the responsible duties at hand, and at least give personal direction to what is being done."

The Lizzie Burrill, 115 Fed. 1015, with reference to the duty of the master toward the crew. The court quotes a number of American and English authorities. The syllabus summarizes the decision as follows:

"It is the duty of the master of a ship while at sea to protect his crew from violence and brutal treatment by other officers under his command.

"The master of a ship while on board is the agent of the owners in respect to all matters which come within the scope of his duty, and the owners and ship are liable in damages to a seaman, not only for the unwarranted ill-treatment of such seaman by the master himself, but for his failure to perform his duty to protect the seaman from assaults and ill-treatment by other officers."

The frequently misused term "freight" means the compensation for carrying the cargo and not the goods thereunder.

Hence, from the ancient sea codes to the most recent legislation, there is a constant provision for their welfare and protection. Their occupation is an honorable one and has its privileges accordingly; it is also one of great responsibility and has its duties and the law has both in mind.

Corporal punishment is no longer permitted; its infliction is a misdemeanor punishable by the courts, and it also renders the owner and master liable for damages. The master may, however, use a deadly weapon when necessary to suppress mutiny but only when mutiny exists or is threatened.

That any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such action shall be under the court of the district in which the defendant employer resides or in which his principal office is located.

This provision, which seeks to confer upon seamen the rights enjoyed by railway employees under the Federal Compensation Act, has not yet been construed by the courts.

The rights of railway employees thus conferred upon seamen are those given by acts of Congress approved April 22, 1908, and April 5, 1910. These acts gave to the employees of railroads engaged in interstate and foreign commerce, a right of action against the employing carrier in case of injury or death of the employee, notwithstanding that the accident may have been caused by acts of a fellow servant or may have been due to one of the risks naturally incident to the employment, and notwithstanding that the plaintiff may have been guilty of contributory negligence, although in the latter case the damages are to be diminished in proportion to the amount of the employee's negligence. Suit may be brought in the state or federal courts, which are given concurrent jurisdiction in such cases.

It should be observed that under neither the Merchant Marine Act nor the Railway Employers' Liability Acts is the jurisdiction to be exercised by the court sitting in admiralty. The jurisdiction invoked is that of the courts of common law.

Where, however, there is negligence on the part of the shipowner in providing a seaworthy ship, or on the part of the officer in caring for the injured man, the admiralty will award damages; if there has been contributory negligence, it will not prevent recovery but the damages will be apportioned or divided .

The principle on which vessels are held liable for injuries to seamen due to unseaworthiness is simply an application of the rule of law that every master is bound to provide his servant with a safe place to work; that is to say, a place as safe as any prudent man would provide for the performance of work of similar character, and that failure to provide such a safe place is actionable negligence. In the Joseph B. Thomas, 86 Fed. 658, it was held that where an employee on a vessel placed an empty keg on a pile of hatchway covers in such a position that an accidental jar caused it to fall in the hatch and injure a stevedore, the master and the owners were liable and the ship was held for violation of the duty to provide a safe place to work.

In the Shawnee, 45 Fed. 769, the ship had suffered greatly from a severe storm and went under Mackinac Island for shelter. Much extra work was required by the crew and when the time came to proceed on the voyage they told the master that they would not go on unless an extra allowance of each was guaranteed. Under the stress of circumstances the master was constrained to acquiesce in the demand, but on arrival the owners refused to pay this extra amount although they tendered the regular wages. The sailors thereupon libeled the ship, but the Court, in a very emphatic opinion, declared that their conduct had amounted to mutiny and that their wages should be entirely forfeited.

Numerous decisions illustrate these rules.

In the Troop, 118 Fed. 769, a sailor fell from a yardarm and fractured his thigh shortly after the ship sailed; the captain might have put him in the port hospital but instead applied splints himself and sent the man to his bunk; he did nothing more for him until the vessel arrived at her destination, thirty-six days after, and even then neglected him for an additional five days before supplying proper medical care. The sailor suffered greatly during the voyage and became permanently injured. The Court held that the ship was liable for the master's failure to observe the rule of care to an injured sailor and awarded him ,000 with 6 per cent interest.

In the Margharita, 140 Fed. 820, the ship sailed from a port in Chili for Savannah. While off the west coast of South America and about to round Cape Horn a sailor lost his footing aloft and was precipitated into the sea. As he struck the water a shark, or some other marine monster, bit off his leg at the knee, but he was rescued by another of the crew who jumped after him. The ship was then about 7,000 miles from her destination. The master gave the sailor all the attention which the ship afforded and controlled the hemorrhage and inflammation by placing the stump in tar; he continued to give him regular attention during the voyage, detailed a man to supply his wants and provided him with a suitable diet; on arrival at Savannah he was immediately sent to the hospital. The Court held that there could be no further recovery inasmuch as the master had fully discharged all the obligations of the rule.

The ordinary offenses of seamen are classed as mutiny, inciting revolt, desertion, disobedience, assaults, theft, fighting, and tampering with the cargo; but, in addition, they are liable for all crimes and offenses which would be punishable as such if committed on shore.

It should be remembered that the power of punishment on shipboard is vested in the master personally and that the law does not permit his delegating it to others. A mate has no legal right to enforce his orders by beating one of the crew. Up to about seventy years ago corporal punishment of seamen was permitted by law, owing to the nature and supposed necessities of the service, and no doubt officers find it hard to give it up. Courts of admiralty endeavor to deal with these cases in a practical way. Altercations and assaults between master and crew have never been treated by them like those redressed in the common law courts, where the slightest blow may be treated as a trespass to one's dignity and feelings of self-respect. The crew are to be protected from injury and the maritime law will amply vindicate all beatings, woundings and maltreatment, criminally and civilly. The right of self-defense is only a last resort and will seldom need to be invoked.

This lien is said to inhere in the last plank of the ship and will be paid in preference to claims for penalties against the ship in behalf of the United States and port dues.

The lien for wages exists in the home port of the vessel as well as in foreign ports.

Where as sometimes in the case of a fishing voyage the crew has an interest in the result of the venture this does not affect the right to liens.

The weight of authority in the more recent decisions, reversing the older rule, is to give a lien to stevedores, longshoremen, watchmen and ship carpenters against foreign vessels while the authorities are in conflict as to whether such liens lie against domestic vessels.

The Merchant Marine Act of June 5, 1920, which is printed in full in the Appendix, ? 30, Subsection M, expressly confers a lien for wages of stevedores, "when employed directly by the owner, operator, master, ship's husband, or agent of the vessel", and makes no distinction between the home port and any other.

In the Ole Olson, 20 Fed. 384, a schooner was libeled for seamen's wages and two men intervened and sought to recover who had been employed as stone-pickers by the master, who was also managing owner, to gather stone on the shores of Lake Michigan and assist in loading the stone on board as cargo to be carried to Chicago. While engaged in this service they lived and slept on the vessel as she lay off shore and when the weather was such that stone could not be gathered, the schooner would run into port and on such occasions these men would lend a hand in hoisting sail. They did not accompany the vessel on her voyages as she had a full crew without them. The only question was whether they rendered maritime services and were therefore entitled to the seaman's lien for wages. The Court held that they were not, distinguishing the Ole Olson from the case of the Ocean Spray, 4 Sawy. 105, and several others. In the case of the Spray the libellants were shipped as sealers and were hired to take seal for the vessel at a stipulated sum per month. Their contract also bound them "lend a hand on board whither they were wanted." On the voyage they helped make and reef sail, heave the anchor and clear decks, but did not stand watch. They also procured driftwood and water for the use of the vessel. They thus aided in the navigation and preservation of the vessel and were colaborers in the leading purpose of the voyage. "Upon the principle applicable to surgeons, stewards, cooks and cabin boys they were to be considered as mariners." They were accordingly entitled to their maritime lien on the vessel.

Sections 8287-8297 provide for the appointment of shipping-commissioners in such ports of entry and ports of ocean navigation as require them; where no commissioners are appointed, the collector of customs or his deputy may so act; the duties of such commissioners are to afford facilities for engaging seamen by keeping a register of their names and characters; to superintend their engagements and discharge according to law; to provide means for securing their presence on shipboard according to their engagements; to facilitate the making of apprenticeships to sea service and to perform such other duties relating to merchant seamen and merchant ships as may be required by law. Section 4554 amended by the Act of August 19, 1890, provides that the commissioners shall arbitrate disputes between owners or masters and the crew on mutual application.

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