Of the Persons Employed in the Navigation of Merchants' Ships
NOTES
1. Cleirac, in his Jugemens d'Oleron, ch. 1 says, that the title of master of a ship implies honor, experience, and morals; reverendum honorem sumit quisquis magistri nomen acceperit. The French ordinances of 1584, 1681, and 1725, and the ordinances of the Hanse Towns, of Bilboa, of Prussia, and Sweden, have all required the master to be previously examined and certified to be fit by his experience, capacity, and character. He was, formerly, when trade was so constantly exposed to lawless rapacity, required to possess military, as well as ordinary nautical skill: omnibus privilegiis militaribus gaudet. Roccus de Navibus et Naulo, note 7. Emerigon, Traité des Ass. tom. 1. 182. Valin's Com. liv. 2. tit Du Capitaine, passim. Jacobsen's Sea Laws, by Frick, b. 2. ch. l. Boulay Paty, Cours de Droit Mar. tom. 1. 368, 376, 379. Repertoire de Jurisprudence, tit. Capitaine de Vaisseau Marchand. The English writers go directly to the discussion of these subjects, which they handle dryly, and with mathematical precision; while the foreign, and especially the French jurists, not only rival their neighbors in the accuracy of their minute details of judicial proceedings, and practical rules, but they occasionally relieve the exhausted attention of the reader, by the vivacity of their descriptions, and the energy and eloquence of their reflections. It must be admitted, however, that the decisions of Lord Stowell are remarkable for taste and elegance, and they are particularly distinguished for the justness and force with which they describe the transcendent powers, and define the delicate and imperative duties of the master. And the duties of the master; and particularly the necessity of kind, decorous, and just conduct, on the part of the captain, to the passengers and crew under his charge, and the firm purpose with which courts of justice punish in the shape of damages, every gross violation of such duties, are nowhere more forcibly stated, than in Chamberlain v. Chandler, 3 Mason's Rep. 242, in our American admiralty.
2.Boson v. Sandford, Carth. Rep. 58. Rich v. Coe, Cowp. Rep. 636. Ellis v. Turner, 8 Term Rep. 531. Reynolds v. Toppan, 16 Mass. Rep. 370.
3.Hoskins v. Slayton, Cases temp. Hard. 360. Lord Mansfield. Parmer v. Davies, 1 Term Rep. 108. Lord Ellenborough, Hussy v. Christie, 9 East's Rep. 482.
4.Ord. de la Mer. des Proprietaires, art. 4. Code de Commerce, art, 218. M. Pardessus, tom. 2. 35. M. Dalvincourt, Inst. Com. tom. 2, 294. Boulay Paty, tom. 1. 324-329.
5. Bell's Com. vol. i. 506, 508.
6.Ord. de la Mer. liv. 3, tit. 1, art. 11, and Valin, ibid. tom. i. 629.
7. See vol. i. 344.
8. Abbott on Shipping, part. 2. ch. 2. sec. 5.
9. Dig. 14. 1. 8. and 10, 11. Speerman v. De Grave, 2 Vern. Rep. 643. Sansum v. Braggenton, 1 Vesey's Rep. 443.
10. Dig. 14. 1. 9. Loecenius, lib. 2. c. 6. n. 12. 2 Emerig.440. Boulay Paty, Cours de Droit Com. t. 1. 119.
11. 1 Bro. P. C. 284, edit. 1784. Abbott on Shipping, part 2. ch. 3. sec. 6. S. C. Wainwright v. Crawford, 4 Dallas' Rep. 225. Milward v. Hallet, 2 Caines' Rep. 77. James v. Bixby, 11 Mass. Rep. 34.
12.Ord. liv. 2. tit. 8. Des Proprietaires, art. 2. Code du Commerce, art. 216, 234.
13. Code, art. 216. Emerigon, Cont. a la Grosse, ch. 4. sec. 11. Boulay Paty, tom. 1. 272-278.
14. Van Leeuwen's Com. on the Dutch Law. b. 4. ch. 2. sec. 9.
15. Grot. De Jure belli et pacis, b. 2. ch. 11. sec. 13.
16. 3 Rob. Adm. Rep. 274.
17. 2 Emerigon, 458. Valin's Com. tit. Du Capitaine, art. 19. Boulay Paty, tom. 2. p. 73, 74.
18. Doug. Rep. 101.
19. 9 East's Rep. 426.
20. 1 Barnw. & Ald. 575.
21. 2 Rob. Adm. Rep. 232.
22. 1 Paine's Rep. 72.
23. 8 Serg. & Rawle, 118.
24. 1 Peter's Adm. Rep. 227.
25.Ship Packet, 3 Mason's Rep. 255.
26. In the case of the Ship Packet, there is no reference to the decision in Smith v. Plumer, though that decision contained a critical review of all (he authorities, and put at rest, in Westminster Hall, the very point as to the lien on freight, and in opposition to the rule laid down in the Ship Packet.
27. Dig. 42. 5. 26. and 34. 1 Voet's Com. 20. 2. 29. Casaregis, Disc. 18. 1 Valin's Com. 363, 367. The new French code, art. 191, gives the order of privileged debts which are liens upon the ship, and take preference to each other, and to all other debts, in the order in which they are placed. Among them are: (5.) The expenses of repairing the vessel at the last port. (6.) Wages of the master and crew in the last voyage. By the consolato, and the ordinances of Oleron, and of 1681, the wages or sailors for the last voyage had the preference over all other claims. (7.) Moneys borrowed by the captain in the last voyage, for the necessary expenses of the ship, and the reimbursement of the price of the goods sold by him for the same object. If the captain made successive loans or sales of cargo, from necessity, the last loan and sale, in point of time, is preferred, if made at a different port. (8.) Debts due to the vendor, material men, and shipwrights, if the ship has not made a voyage, and to those who furnished stores and necessary supplies before her departure, if she had already made a voyage. The consolato, and the ordinance of 1681, gave those creditors a preference to all others. The vendor loses his preference after the ship has sailed. Code de Commerce, art.191. Boulay Paty, Cours de Droit Com. t 1, p. 110-124.
28.Watkinson v. Barnardiston, 2 P. Wms. 367. Buxton v. Snee, 1 Vesey's Rep. 154.
29. Abbott on Shipping, part 2. ch. 3. sec. 9-14, contains a history of the English cases on the point. The rule is settled in Scotland in perfect conformity to the English law. Hamilton v. Wood, and Wood v. Creditors of Weir, 1 Bell's Commentaries, 527, who says, that the deviation in England from that maritime rule which prevails with other nations, has proceeded rather from peculiar notions of jurisdiction than from any general principle of law or expediency, and that it has been established in Scotland by mere adoption.
30.Stevens v. The Sandwich, District Court for Maryland, 1 Peter's Adm. Rep. 233. note. Gardens v. The Ship New Jersey ibid, 223.
31. 4 Wheat. Rep. 438.
32. 9 Wheat. Rep. 409.
33. The Supreme Court have, in these cases, assumed, that a port of another state was not, as respects this rule, a home port. The Court of Sessions in Scotland, have also held, that Hull, in England, was, in respect to Scotch owners, a foreign port. (Stewart v. Hall, 1 Bell's Com. 525, note.) But that decision was reversed in the House of Lords, as being a point unnecessary; and the question is still open, as to what shall be deemed a home port in respect to repairs. Mr. Bell suggests, that the natural course would be, to adopt the rule of the navigation laws, and to hold all British ports as home ports, because access to the custom house title, and communication with the owners are so easy, and may be so prompt.
34. Laws of New York, sess. 22. ch. 1, sess. 40. ch. 60.
35.The Gratitudine, 3 Rob. Adm. Rep. 240.
36.The Ship Packet, 3 Mason's Rep. 255.
37. Code de Commerce, art. 232.
38. 2 Boulay Paty, 271.
39.Rucher v. Conyngham, 2 Peters' Adm. Rep. 295. Cupisino v. Perez, 2 Dallas' Rep. 194. The Aurora, 1 Wheat. Rep. 96. Rocher v. Busher, 1 Stark. Rep. 27. Roccus, De Navibus, not. 23.
40. Reade v. Commercial Insurance Company, 3 Johns. Rep. 352.
41. See Rucher v. Conyngham, 2 Peters' Rep. 307, to that point. The power given to the master to raise money while abroad, for the necessities of the ship, is the most dangerous form in which his authority can be exerted, and all the foreign authorities have recommended and enforced the same precautions, and which have been universally adopted. (Casaregis, Disc. 71. Roccus De Navibus, n. 23. Vinnius ad Peck.) In Boyle v. Adam, in the Scotch admiralty, in 1801, the rule that the lender, on an hypothecation bond, was not bound to see to the application of the money, was qualified in a case where the expenditure was enormous, and the master a weak man. Bell's Com, vol. i. 529. note.
42.The Gratitudine, 3 Rob. Adm. Rep. 240, 263. The United Insurance Company v. Scott, 1 Johns. Rep. 115. Freeman v. The East India Company, 5 Barnw. & Ald. 617.
43.Watt v. Potter, 2 Mason's Rep. 77.
44.Hayman v. Molton. 5 Esp. N. P. Rep. 65. Mills v. Fletcher, Doug. Rep. 219. Idle v. The Royal Exchange Insurance Company, 8 Taunt. Rep. 755. Freeman v. The East Indian Company, 5 Barnw. & Ald. 617. Cannan v. Meaburn, 1 Bingh. Rep. 243. Robertson v. Clarke, ibid. 445.
45.Van Omeron v. Dowick, 2,Campb. N. P. Rep. 42. Morris v. Robinson, 3 Barnw. & Cress. 196.
46. 3 Barnw. & Ald. 237.
47. Abbott on Shipping, part. 2 ch. 3, sec. 20. 22. Chose J., Blaine v. The Ship Charles Carter, 4 Cranch's Rep. 328.
48.Law v. Holligworth, 7 Tern Rep. 160. The William, 6 Rob. Adm. Rep. 316.
49.Bussy v. Donalson, 4 Dallas' Rep. 206. Hugget v. Montgomery, 5 Bos. & Pull. 446.
50. 1 Taunt. Rep. 568.
51. In the case of the Portsmouth, 6 Rob. Adm. Rep. 317. Snell v. Rich, 1 Johns. Rep. 395.
52. The recklessness with which sailors dissipate their wages, and the facility with which they are cheated out of them, are proverbial, and those who have the superintendence of marine hospitals well know, how severely and extensively sailors are afflicted, beyond all other classes of men, by those odious diseases which so terribly chastise licentious desire. Such a scourge is far worse to them than the storms and the monsters or the ocean: than either the praecipitem Africum decertantum aquilonibus, the rabien noti, the monstra natantia, or the infames scopulose acroceraunia.
53. Act of Congress, July 20th, 1790, ch. 29. sect. 1, 2, 3, 5, and 7.
54. Act of Congress, June 19th, 1813, ch. 2. sect, 1 and 2.
55. Wait v. Gibbs, 4 Pickering, 298.
56. Act of Congress, July 20th, 1790, ch. 29, sec. 6.
57. Ibid. sec. 8. and 9, and Act of Congress of March 2d, 1805, ch. 88.
58. Acts of Congress, July 16th, 1798, March 2d, 1799, and May 3d, 1802.
59. Act of Congress, February 28th, 1803, ch. 62.
60. Molloy, b. 2. ch. 3. sec. 12. Thorne v. White, 1 Peters' Adm Rep. 168. Rice v. The Polly and Kitty, 2 ibid. 420. Michaelson v. Denison, 3 Day's Rep. 294. Comersford v. Baker, before Lord Stowel, June, 1825. The United States v. Dewey, New York Circuit, June, 1828.
61.Watson v. Christie, 2 Bos. & Pull. 224.
62.Boyce v. Bayliffe, 1Campb. N. P. 58.
63.Relf v. The Ship Maria, 1 Peters' Adm. Rep. 186. Black v. Ship Louisiana, 2 ibid. 268. Hulle v. Heightman, 2 East's Rep. 145. Sir William Scott, in the case of the Exeter, 2 Rob. Adm. Rep. 261. The French law affords peculiar protection to seamen, and among other things in this, that it prohibits the master from discharging a seaman in any case, in a foreign country. This was by a royal declaration of 18th of December, 1729, art. 1. mentioned in 1 Valin's Com. p. 734. and it is adopted in the Code de Commerce, art 270.
64.Atkyns v. Burrows, 1 Peters' Adm. Rep. 244. Thompson v. Bush, cited in 12 Serg. & Rawle, 267.
65. Laws of Oleron, art. 13. Laws of Wisbuy, art. 25. Relf. v. The Ship Maria, 1 Peters' Adm. Rep. 193, 194.
66. 2 Mason's Rep. 541.
67. Act of 20th July, 1790, ch. 29.
68. Decision in the District Court of Maryland, by Judge Winchester, 1. Hall's L. J. 209.
69. Act of Congress, 19th of June, 1813, ch. 2. sec. 1 and 2.
70.Harris v. Watson, Peake's N. P. Rep. 72. Stilk v. Myrick, 2 Campb. N.P. 317.
71.Yates v. Hall, 1 Term Rep. 73.
72.The Vanguard, 6 Rob. Adm. Rep. 207.
73.Chandler v. Grieves, 2 H. Blacks. Rep. 606, note. Abbott on Shipping, part 4, ch. 2. sec. 1. Williams v. The Brig Hope, 1 Peters' Adm. Rep. 138.
74.Robinett v. The Ship Exeter, 2 Rob. Adm. Rep. 261. The Beaver, 3 ibid. 92. Keane v. The Brig Gloucester, 2 Dallas' Rep. 36. 2 Peters' Adm. Rep. 403. Rice v. The Polly and Kitty, 2 Peters' Adm. Rep. 420. In this last case the seamen were forced to quit the ship by the cruelty and dangerous threats of the master, and their wages were allowed.
75.Ord. des Loyers des Matelots, art. 3. Pothier's Louage des Matelots, n. 203. Cushing's Translation, p. 123. Roccus, de Nav. et Naulo, n. 43. Ingersoll's Translation, p. 46. Hoyt v. Wildfire, 3 Johns. Rep. 518.
76.Siggard v. Roberts, 3 Esp. N. P. Rep. 71.
77. Anon. 1 Sid. Rep. 179.
78. Malyne's Lex Mercatoria, p, 105. Molloy, de Jure Maritimo, b. 2. c. 3. sec. 7. Hoyt v. Wildfire, 3 Johns. Rep. 518.
79. In Wolf v. The Brig Oder, 2 Peters' Adm. Rep. 1, where the voyage was broken up by seizure for debt, wages up to the time were allowed, and one additional month's pay. In Hoyt v. Wildfire, where the seamen were hired for a voyage from New York to the East Indies, and back to New York, and the vessel was captured and condemned on the outward voyage for having contraband goods on board, wages, according to the rate of the contract, were allowed from the commencement of the voyage until the return of the seamen, with reasonable diligence, to New York, deducting wages received while in other service on the circuitous return. The court observed, that the rule in the French law (Ord. des Loyers des Matelots, art. 3 Pothier, Louage des Matelots, No. 203) ordained, that if the seamen were hired for the voyage, they should, in such a case, be paid their entire wages for the voyage, and if hired by the month, the wages due for the time they had served, and for the time necessary to enable them to return to the port of departure; and that there was no reason to question the soundness of the rule, or the propriety of following it in that case.
80.Ross v. Glassford, and Morrison v. Hamilton, cited in 1 Bell's Com 515. But the rule may be varied by agreement. Appleby v. Dodge, 8 East's Rep. 300.
81.Cutter v. Powell, 6 Term Rep. 320.
82. Heath, J., in Beale v. Thompson, 3 Bos. & Pull. 425.
83.Armstrong v. Smith, 4 Bos. & Pull. 299.
84.Walton v. The Ship Neptune, 1 Peters' Adm. Rep. 142. Sims v. Jackson, ibid. 157, note.
85.Carey v. Schooner Kitty, Bee's Adm. Rep. 255.
86.Natterstrom v. Ship Hazard, 2 Hall's L. J. 359.
87. If the seaman be hired by the voyage, and die during it, the standard books of maritime law, says Mr. Bell, seems to give the outward wages, if he dies during the outward voyage, and the whole if he dies during the homeward voyage. But if he be hired by the month, it rather seems, that wages will be due only to the time of his death. Bell's Commentaries, vol. i, 514.
88. Anon. Holt. Ch. J., 1 Lord Ramy. 639.
89. Notes of Judge Winchester's decisions, 1 Peters' Adm. Rep. 186. note. Abbot on Shipping, part 3. ch. 2. sec. 4. Blanchard v. Bucknam, 3 Greenleaf's Rep. 1.
90. 2 Mason's Rep. 319.
91. Anon. 2 Show. Rep. 291.
92. 4 Rob. Adm. Rep. 143.
93. 3 Esp. N. P. Rep. 36.
94.Hart v. The Ship Little John, 1 Peters Adm. Rep. 115. Howland v. The Brig Lavinia, ibid. 123. Singstrom v. Schooner Hazard, 2 Peters' Adm. Rep. 384. Brooks v. Dorr, 2 Mass. Rep. 39. Wetmore v. Henshaw, 12 Johns. Rep. 324.
95. 4 East's Rep. 546.
96.Harden v. Gordon, 2 Mason's Rep. 541.
97.The Juliana, decided by Lord Stowell, 19th of March, 1822, and mentioned in 2 Mason's Rep. 557. See also, to the same effect, Judge Winchester's decision in the District Court of Maryland, in 1 Peters'' Adm. Rep. 187, note. Mallett v. Stephens, in Mass. 1800, cited in Abbott, p. 490. American edition, 1810.
98. 4 Bos. & Pull. 347.
99. 3 Johns. Rep. 17.
100. 1 Mason's Rep. 104.
101. The laws of Oleron, art 3, of Wisbuy, art. 15. Hanseatic Ord. art. 44. the Ord. of Philip, II. tit. Average, art. 12, the Ord. of Rotterdam, art. 219, and the French Ord. of the Marine, liv. 3. tit. 4. des Loyers des Matelots, art. 9. Code de Commerce, art. 259.
102. Abbott, part. 4. ch. 2. sec. 6.
103.The Neptune, 1 Haggard's Adm. Rep. 227. 1 Peters' Rep. 54, 195. 2 ibid. 426.
104.Dunnett v. Tomhagen, 3 Johns. Rep. 154. The Saratoga, 2 Gallison, 164.
105. Act of July 20th, 1790, ch. 29. sec. 6.
106.Madonna D'Idra, 1 Dodson's Rep. 37. Sydney Cove, 2 ibid. 11. The Ship Mary, 1 Paine's Rep. 180.
107.Ord. de la Marine, tit. De la Saisie des Navires, art. 16. De l'Engagement, art. 19. Code du Commerce, art. 191, 193. The commercial code of Napoleon settles the order and rights of privileged debts, much more fully and precisely than the marine ordinance of Lewis XIV; and this priority in favor of seamens's wages pervades both the maritime ordinances. The venerable code of the Consolato del Mare, ch. 138,expressed itself on this subject with the energy of Lord Stowell, when it declared, that mariners must be paid before all mankind, and that if only a single nail of the ship was left, they were entitled to it. (Consulat de la Mer par Boucher, tom. ii. 205. See also, Cleirac upon the Judgments of Oleron, art. 8. n. 31. and Boulay Paty, Cours de Droit Com. tom. i. 115.) The preference given to seamen for their wages over all other claims, upon the ship and freight, is the universal law of maritime Europe.
108. 11 and 13 Wm III c.7, and 2 Geo. II, c. 36.
109. Act of 20th July, 1790, ch. 29. sec 2 and 5.
110.Whitton v. The Brig Commerce, 1 Peters' Adm. Rep. 160.
111.Limland v. Stephens, 3 Esp. N.P. Rep. 269.
112.Sims v. Mariners, 1 Peters' Adm. Rep. 395.
113.Buck v. Lane, 12 Serg. & Rawle, 266. In the examination of the maritime law concerning seamen, I have been led to consult, very frequently, the admiralty decisions in the District Court of Pennsylvania, and I feel unwilling to take my leave of this branch of the subject, without expressing my grateful sense of the obligation which the profession, and the country at large, are under, to the venerable author of those decisions. They discover a familiar acquaintance with the maritime ordinances of continental Europe, those abundant fountains of all modern nautical jurisprudence. They have investigated the sound principles which those ordinances contain, in a spirit of free and liberal inquiry; and they have uniformly discussed the rights and claims of mariners, under the influence of a keen sense of justice, a strong feeling of humanity, and an elevated tone of moral sentiment.
