[53] Do.

[54] 3 Mason, 255. 1 Wash. C. C. 49; 2 Do. 226. 3 Rob. 240.

In no case can any of the cargo be sold or hypothecated to repair or supply the ship, unless these repairs and supplies are to be for the benefit of the cargo. The strictest proof is always required that the repairs were in the first place necessary, and, in the next place, that they were for the benefit of the cargo, and not merely for the good of the ship-owner.[55]

[55] 2 Wash. 226. 3 Rob. 240.

A further question arises, whether the master has ever, and when, the right to sell the whole cargo and the ship itself. If it should be impossible to repair the ship and send her on the voyage by any of the means before mentioned, it then becomes the master's duty to forward the cargo to the port of destination by some other conveyance. If neither of these things can be done, then he becomes, from necessity, agent of the owner of the cargo, and must make the best disposition of it in his power. If the goods are perishable, the owner cannot be consulted within a reasonable time, and has no agent in the port, and something must be done with the cargo, and there is no one else to act--then the master must dispose of it in such a way as best to subserve the interest of its owner. He should take the advice of the commercial agent or other suitable persons, should also use his own judgment and act with good faith, and take care to preserve evidence that he has so done. If all these requisites are not complied with, he will incur the danger of having his acts set aside.[56]

[56] 2 Wash. C. C. 150. 3 Rob. 240.

The rule as to the sale of the ship is very nearly the same, except that it is, perhaps, still more strict. If all means for repairing the vessel and sending her on her voyage have failed, and a case of absolute necessity arises, the master may make a sale of her. As a prudent man, he should have the sale made, if possible, under the authority of the judicial tribunals of the place. Even this will not, of itself, render the sale valid, but will go far toward sustaining it.

He should consult the consul, or other suitable persons; should have a survey made; should take care to have the sale conducted publicly and with the best faith in all parties, and to preserve evidence of the same. Although a person should buy in good faith, yet the sale will be set aside unless it can be shown that there was the strictest necessity for it. The master must not become a purchaser himself, and even if he afterwards buys of one who purchased at the sale, this transaction will be very narrowly watched, and he will be bound to show the very highest good faith in all parties.[57]

[57] 5 Mason, 465. 2 Sumner, 206. Edwards, 117.

The strictness of these rules should not deter the master from acting, where the interest of all requires it, but will show him the risk that is run by acting otherwise than with prudence and entire honesty. He should remember, too, that, in taking command of a vessel, he not only covenants that he will act honestly and with the best of his judgment, but also holds himself out as having a reasonable degree of skill and prudence.[58]

[58] 1 Dallas, 184.

As to the safe keeping, transportation, and delivery of the cargo, the master's duties and obligations are those of a common carrier upon land. He is bound to the strictest diligence in commencing and prosecuting the voyage, a high degree of care both of vessel and goods, and is held liable for all losses and injuries not occasioned by inevitable accident, or by the acts of public enemies. He is answerable also for unnecessary delays and deviations, and for the wrongful or negligent acts of all persons under his command. At the termination of the voyage, he must deliver the goods to the consignee or his agents. A landing upon the wharf is a sufficient delivery, if due notice be given to the parties who are to receive them. He is not, however, bound to deliver until the freight due is paid or secured to his satisfaction, as he has a lien upon the goods for his freight; but the consignee can require the goods to be taken from the hold, in order that he may examine them, before paying freight. In such case they should not go out of the possession of the master or his agents.

DEVIATION.--The master must not deviate from the course of the voyage.

By a _deviation_ is meant, technically, any alteration of the risk insured against, without necessity or reasonable cause. It may be by departing from the regular and usual course of the voyage, or by any unusual and unnecessary delay. A deviation renders the insurance void, whether the loss of the vessel is caused by the deviation or not. It is not a deviation to make a port for repairs or supplies, if there be no unnecessary delay, nor to depart from the course of the voyage in order to succor persons in distress, to avoid an enemy, or the like.

It is the master's duty, within twenty-four hours after arriving at his first port, to make a _protest_ in case of any accident or loss happening to vessel or cargo. The log-book also should be carefully kept, without interlineations or erasures. The master must also enter a protest in case any American seaman is impressed, and transmit a copy of the same to the secretary of state, under a penalty of $100.[59]

[59] Act 1796, ch. 36, --5.

COLLISION.--A vessel having the wind free must make way for a vessel close-hauled. The general practice is, that when two vessels approach each other, both having a free or fair wind, the one with the starboard tacks aboard keeps on her course, or, if any change is made, she luffs, so as to pa.s.s to windward of the other; or, in other words, each vessel pa.s.ses to the right. This rule should also govern vessels sailing on the wind and approaching each other, when it is doubtful which is to windward. But if the vessel on the larboard tack is so far to windward that if both persist in their course the other will strike her on the lee side, abaft the beam, or near the stern; in such case, the vessel on the starboard tack must give way, as she can do so with less loss of time and greater facility than the other. These rules are particularly intended to govern vessels approaching each other under circ.u.mstances that prevent their course and movements being readily discerned with accuracy, as at night or in a fog. At other times, circ.u.mstances may render it expedient to depart from them. A steamer is considered as always sailing with a fair wind, and is bound to do whatever would be required of a vessel going free.[60]

[60] Report of Benjamin Rich and others to District Court of Ma.s.s.

PILOT.--The master must take a pilot when within the usual limits of the pilot's employment.[61] If he neglects or refuses so to do, he becomes liable to the owners, freighters, and insurers. If no pilot is at hand, he must make signals, and wait a reasonable time. The master is to be justified in entering port without a pilot only by extreme necessity. After the pilot is on board, the master has no more control over the working of the ship until she is at anchor.[62]

[61] 6 Rob. 316. 7 T. R. 160.

[62] 2 B. & Ad. 380. 3 Kent's Com. 175 c.

WAGES, ADVANCES, &C.--The master has no lien upon the ship for his wages.[63] He is supposed to look to the personal responsibility of the owner. He has a lien on freight for wages, and also for his advances and necessary expenses incurred for the benefit of the ship.[64] He can sue in admiralty _in personam_, but not _in rem_;--that is, he can sue the owner personally, but cannot hold the ship. It does not seem to be settled in the United States whether the master has a lien on the ship for advances made abroad for the benefit of the vessel.[65] In case of sickness, the master's right to be cured at the expense of the ship seems to be the same as that of the seamen.[66]

[63] 3 Mason, 91. 11 Pet. R. 175.

[64] Ware, 149. But see 5 Wend. 314.

[65] 3 Mason, 255.

[66] 1 Sumner, 151.

CHAPTER III.

THE MASTER'S RELATION TO Pa.s.sENGERS AND OFFICERS.

Treatment of pa.s.sengers. Removal of officers.

Pa.s.sENGERS.--The contract of pa.s.sengers with the master is not for mere ship-room and personal existence on board, but for reasonable food, comforts, necessaries, and kindness. In respect to females, it extends still further, and includes an implied stipulation against obscenity, immodesty, and a wanton disregard of the feelings. An improper course of conduct in these particulars will be punished by the court, as much as a personal a.s.sault would be.[67]

[67] 3 Mason, 242.

OFFICERS.--The master may remove either of his officers from duty for fraudulent or unfaithful conduct, for gross negligence and disobedience, or for palpable incapacity. But the causes of removal must be strong and evident;[68] and much more so in the case of the chief mate than of the second mate. Any temporary appointments, made by the master, are held at his pleasure, and stand upon a different footing from those of persons who originally shipped in the character in question.[69]

[68] 4 Wash. 334.

[69] Gilpin, 83.

When a man ships in a particular capacity, as carpenter, steward, or the like, he is not to be degraded for slight causes. He stipulates for fair and reasonable knowledge and due diligence, but not for extraordinary qualifications.[70]

[70] 4 Mason, 84. Abbott Shipp. 147 n. Ware, 109.

The right of the master to compel an officer, who has been removed, to do duty as a seaman before the mast, has never been completely established; but the better opinion would seem to be that he may do it in a case of necessity. Merchant vessels have no supernumeraries, and if the master can show that the officer was unfit for the duties he had undertaken, and thus made it necessary to take some one from the forecastle to fill his place, and that, by this means, the ship had become short-handed, he may turn the officer forward, a.s.suming the responsibility for the act, as well as the risk of justification. He would be required to show a much stronger cause for removing the chief mate than would be insisted upon in the case of a second mate; and probably this necessity for exacting seaman's duty would be held to extend no further than an arrival at the first port where other hands could be shipped.

Nothing but evident unfitness or gross and repeated misconduct will justify the master in turning a person forward who shipped in another capacity, as carpenter, cook, or steward. But in such cases, he undoubtedly may do so. Still, when before the mast, he cannot require of them the duty of able seamen, unless they are such in fact.

CHAPTER IV.

THE MASTER'S RELATION TO THE CREW.

Shipment. Shipping papers. Discharge. Imprisonment. Punishment.

SHIPMENT.--The master of every vessel of the United States, bound on a foreign voyage, and of all coasting vessels of fifty tons burden, must make a contract in writing (shipping articles) with each seaman, specifying the voyage, terms of time, &c.; and in default thereof shall forfeit $20 for every case of omission, and shall be obliged to pay every such seaman the highest rate of wages that have been paid for such voyages at the port of shipment within three months previous to the commencement of the voyage.[71] And when the master ships a seaman in a foreign port, he must take the list of crew and the duplicate of the shipping articles to the consul or commercial agent, who shall make the proper entries thereupon; and then the bond originally given for the return of the men shall embrace each person so shipped. All shipments made contrary to this or any other act of Congress shall be void, and the seaman may leave at any time, and claim the highest rate of wages paid for any man who shipped for the voyage, or the sum agreed to be given him at his shipment.[72]

[71] Act 1790, ch. 56, --1.

[72] Act 1840, ch. 23, --1.

At the foot of every such contract there shall be a memorandum of writing of the day and hour on which such seaman shall render himself on board. If this memorandum is made and the seaman neglects to render himself on board at the time specified, he shall forfeit one day's pay for every hour he is so absent, provided the master or mate shall, on the same day, have made an entry of the name of such seaman in the log-book, specifying the time he was so absent. And if the seaman shall wholly neglect to render himself on board, or, after rendering, shall desert before sailing, so that the vessel goes to sea without him, he then forfeits the amount of his advance and a further sum equal thereto, both of which may be recovered from himself or his surety.[73]

[73] Act 1790, ch. 56, --2.

There is no obligation upon the master to make these memorandums and entries, other than that the forfeitures cannot be inflicted upon the seamen unless they have been made literally according to the form of the statute.