1. Butler, n. 138. to lib. 3. Co. Litt. Pothier's Charter Party, by Gushing, n. 1. Valin's Com. tom. 1, 617. The translation of Pothier's treatises on maritime contracts, by Mr. Cushing, and published at Boston in 1821. is neat and accurate, and the notes which are added to the volume are highly creditable to the industry and learning of the author. It would contribute greatly to the circulation and cultivation of maritime, law in this country, if some other treatises of Pothier, and especially the commentaries of Valin, could also appear in an English dress.
2. Abbott on Shipping, part 3, ch 1, sec. 6.
3. Pothier, Charte-Partie, No. 4. Abbott on Shipping, part 3, ch. 1, sec. 3.
4. Pothier, ibid. No. 8. Abbott, part 3, ch. 1, sec. 4.
5.Putnam v. Wood, 3 Mass. Rep. 481.
6.Havelock v. Geddes, 10 East's Rep. 555.
7. Laws on Charter Parties, 130.
8.Leer v. Yates, 3 Taunton, 387. Harman v. Gandolph, 1 Holt's N. P. 35. The argument is fairly stated, and this rigorous rule ably vindicated, by Mr. Holt, in a note to the case last referred to, and that note was afterwards transferred to his Treatise on Shipping, vol. ii. 17. note.
9.Ord. de la Mar. liv. 3. tit. des Charte-Parties, art. 1, and Valin's Com. ibid. Code de Commerce, art. 273.
10. Molloy, de Jure Mar. b. c. 4. sec. 3. Smith v. Shepherd, cited in Abbott on Shipping, part 3, ch. 4, sec. 1 Boulay Paty, tom. ii. 268, 269.
11.Duffie v. Hayes, 15 Johns. Rep. 327.
12.Ord. du Fret. art. 2. Pothier, Charte-Partie, n. 20, 21, 22, 24, 25. Code de Com. n. 287.
13.Lyon v. Mells, 5 East's Rep. 428. Putnam v. Wood, 3 Mass. Rep. 481. Silva v. Low, 1 Johns. Cas. 184. Ord. de la Marine, liv. 3. tit. 3. Du Fret, art. 12. Valin's Com. h. t. says, that the owner is answerable, on his contract, for latent defects, even though the ship had been previously visited by experienced shipwrights, and the defect had escaped detection; though Pothier, (Charte-Partie, n. 30.) dissents from this opinion of Valin, so far as it relates to latent defects unknown to the owner.
14. Abbott, part 3, ch. 3, sec. 4. Baring v. The Royal Exchange Assurance Company, 5 East's Rep. 99. The same v. Christie, ibid. 398. Baring v. Claggett, 3 Bos. & Pull. 201. Lothian v. Henderson, ibid. 499. Ord. de la Marine, liv. 3. tit. 1. Charte-Parties, art. 10. Valin's Com. h. t.
15.Jackson v. Sharnock, 8 Term Rep. 509.
16. See vol. ii. 472.
17.Cobban v. Downe, 5 Esp. N. P. Rep. 41.
18.Runguist v. Ditchell, 3 Esp. N.P. Rep. 64.
19. Beawes' Lex Mer. 133, 142.
20.Wilson v. Dickson, 2 Barnw. & Ald. 2.
21. See vol. ii. 434. This is also the law in France. Code de Commerce, art. 281.
22.Caldwell v. Ball, 1 Term Rep. 205. 1 Bell's Com. 545.
23. The duties of the captain are prescribed minutely in the French statute codes. Every ship must be inspected by the captain, under the forms prescribed, before she sails, and if he has no such official report of the vessel, he becomes responsible for every accident. He must keep a regular journal of events on the voyage; and the ordinances prescribe very sage regulations in case of the death of any seaman on board, touching his effects. He must be exact in providing the requisite ship's papers before he sails; such as the bill of sale, register, role d'equipage, bill of lading, and charter party, process verbal, clearance at the customs, and a license to sail. He must be on board when the vessel breaks ground. He is answerable for damages even by cas fortuit, when the goods were on deck, unless he had the consent of the owner in writing, or it was a coasting voyage; and if he fails in conformity to the regulations of the ordinances, he becomes responsible for all damages, and cannot invoke the exception of force majeure, when those regulations have not been observed. (Ord. de la Mar. art. 10. tit. Testament, art. 4. Ord. 1720, 1739, and 1779. Code de Com. art. 224, 225, 226, 228, 229. Code Civil, art. 59, 86. 1 Emerig. 374. Boulay Paty, tom. ii. p. 1-35. We have seen, in the preceding part of these lectures, that the master was responsible as a common carrier for the carriage and safe delivery of the goods; and in the case of Sprott v. Brown, in the Scottish courts, (Bell's Com. vol. i. 557. note,) a large mirror was shipped from London to Edinburgh, in a case marked glass, and the master had assumed to carry it safe, and it was found broken, on delivery without any known cause, and the master was held responsible.
24. Roccus, note 56. Ord. of Rotterdam, art. 128.
25.Morley v. Bordieu, Str. Rep. 1265. Lilly v. Ewer, Doug. Rep. 72. Jefferies v. Legendra, Carth. Rep. 216.
26.Webb v. Thomson, 1 Bos. & Pull. 5. Anderson v. Pitcher, 2 ibid. 164. Victorin v. Cleeve, Str. Rep. 1250.
27.Constable v. Cloberie, Palmer's Rep. 397. Davidson v. Gwynne,12 East's Rep. 381.
28.Shubrick v. Salmond, 3 Burr. Rep. 1637.
29. Roccus on Ins. note 52. Patrick v. Ludlow, 3 Johns. Cas. 10. Post v. Phoenix Ins. Company, 10 Johns. Rep. 79. Reade v. Com. Ins. Company, 3 Johns. Rep. 352. Suydam v. Marine Ins. Company, 2 Johns. Rep. 138. Marshall, Ch. J., Mason v. Ship Blaireau, 2 Cranch's Rep. 257, note.
30.Burgon v. Sharpe, 2 Campb. N. P. Rep. 529.
31. Molloy, b. 2. c. 4. sec. 5. Griswold v. New York Insurance Company, 3 Johns. Rep. 321. Bradhurst v. Columbian Insurance Company, 9 Johns. Rep. 17. Schieffelin v. New York Insurance Company, ibid. 21.
32. Dig. 14. 2. 10. 1.
33. Vinnius, notae ad Com. Peckii, ad Rem Nauticam, p. 294, 295, and Anthony Faber, Com. ad Pand, whom Vinnius cites and follows.
34.Jugemens d'Oleron, art. 4. Laws of Wisbuy, art. 16. Ord. de la Mar. tit. Du Fret, art. 11.
35. Valin, tit. Du Fret, art. 11. tom. i. 618. Pothier, Charte-Partie, n. 68. Emerigon, tom. i. 428, 429.
36. Code de Commerce, art. 296. Boulay Paty, Cours de Droit, Com. t. 2. 400-405.
37. Lord Ellenborough, 10 East's Rep. 393.
38.Mumford v. The Commercial Insurance Company, 5 Johns. Rep. 262. Searle v. Scovell, 4 Johns. Ch. Rep. 218.
39.Herbert v. Hallet, 3 Johns. Cas. 93. Clarke v. Mass. F. & M. Ins. Co., 2 Pickering, 104.
40.Saltus v. The Ocean Ins. Co., 12 Johns. Rep. 107. Tredwell v. Union Ins. Co., 6 Cowen's Rep. 270.
41. Roccus, n. 40. 55. Dale v. Hall, 1 Wils. Rep. 281. Vinnuis, notae ad Peckium, p. 259. 1 Emerigon, 373. Proprietors of the Trent Navigation v. Wood, 3 Esp. N.P. Rep. 127.
42.Cheviott v. Brooks, 1 Johns. Rep. 364.
43. Emerigon has collected all the authorities, pro and con, on this very debatable question. See Hall's Emerigon on Maritime Loans, p. 92. Non nostrum tantas componere lites. In favor of the right of the merchant to be paid, see the laws of Wisbuy, art. 68. Valin's Com. tit. Du Fret, art. 14. vol i. p. 655. Cushing's Pothier on Maritime Contracts, p. 19. Charte-Partie, n. 34, and Cleirac, Judgmens d'Oleron, art. 22. n. 2. In opposition to such a claim, Emerigon reasons from the provisions and omissions in the Consolato del Mare, and the Ordinances of Oleron and Antwerp, that the merchant is not entitled to pay. Pothier also admits, that experienced persons whom he consulted on the subject, were against his opinion. Mr. Abbott, in his Treatise on Shipping, part 3. ch. 3. sec. 10. is also against the claim of the shipper to be paid for the goods sold.
44. Abbott, part 3, ch. 3, sec. 11. Soldergreen, v. Flight, cited in 6 East's Rep. 622.
45. Abbott, ub. supra.
46. Laws of Wisbuy, art, 57. Ord. de la Marine, liv. 3. tit. Du Fret, art. 23.
47.Wardell v. Mourillyan, 2 Esp. N.P. Rep. 693.
48.Hyde v. Trent and Mersey Navigation Company, Term Rep. 389.
49.Strong v. Natally, 4 Bos. & Pull. 16. See vol. ii. 469.
50. Abbott, part. 3, ch. 9, sec. 25.
51.The Constantia, 6 Rob. Adm. Rep. 321. 1 Emerigon des Ass. 317.
52. See vol. ii. 464-473.
53.Pickering v. Barkley, Styles, 132. Barton v. Wolliford, Comb. 56.
54.Forward v. Pittard, 1 Term Rep. 27. Hyde v. Trent and Mersey Navigation Company, 5 Term Rep. 389.
55.Garside v. Trent and Mersey Navigation Co., 4 Term Rep. 581
56.Smith v. Shepherd, cited in Abbott, part. 3, ch. 4, sec. 1.
57. See vol. ii. 470. There is an exemption in Massachusetts by statute of 1818.
58.Lewin v. East India Company, Peake's Rep. 241.
59.Smith v. Elder, 3 Johns. Rep. 105.
60. 1 Peters' Adm. Rep. 206.
61. Roccus, note 72, 73, 74, 75. Edwin v. East India Company, 2 Vern. Rep. 210. Atkinson v. Ritchie, 10 East's Rep. 530. Peters, J., in Giles v. The Brig Cynthia, 1 Peters Adm. Rep. 207.
62. 2 Taunt. Rep. 286.
63. Lawes on Charter Parties, 152.
64. Boulay Paty, tom. ii.
