Charles Edward Pollock Frederic Philip Maude.

Compendium of the law of merchant shipping online

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U) Jb, t. 284. (ra) See 6 Geo. 4, c. 78, and Burn's

(*) lb. Justice, by Chitty, vol. 5, tit Plague and

(/) Jb. As to the mode in which, and Quarantine. Where by a charter-party

the time when the official log must be the owner covenanted that the vessel

delivered up to the shipping master at should be sufficiently furnished with

the end of the voyage, or upon the everything necessary and needful for

change of the ship's character, or upon the voyage, he was held to be liable for

her loss or abandonment, see sects. 286, not having on board a bill of health, the

287, and post^ p. 100, where the duties of absence of which caused delay. Leay

the mastery at the end of the voyage, v. Costertotit 4 Camp. 889.

Digitized by



ments which may at the time be necessary to evidence her
neutrality (m).

The master is bound, on the requisition of any naval officer
on full pay, officer of the Board of Trade, chief officer of Cus-
toms, shipping master, British consular officer, registrar-general
of seamen or his assistant, to produce his official.log and his
other books and papers, and a list of all persons on board, and
to allow copies to be taken of them. He must also allow the
crew to be mustered on any such requisition (n).

The master must also, whenever any ship (except ships
whose business for the time being is to carry passengers) arrives
at a foreign port where there is a British consular officer, or at
any port in any British possession, and remains there forty-right
hours, deliver to the consular or Customs officer the agree-
ment and the indentures and assignments of apprentices, to be
kept by this officer during the ship's stay in the port (o). And
if during the progress of any voyage the master is superseded,
or for any other reason quits the ship, he must, subject to a
penalty not exceeding 100/., deliver over to his successor all the
documents in his custody relating to the navigation of the ship
and to the crew, and a list of these documents must be entered
by the new master in the official log (p).

Formerly ships sailing by way of Gibraltar were required by
statute to be provided with a Mediterranean pass (q). This
was an indented paper granted by the government of Algiers
to protect British vessels from cruisers belonging to that state.
As the present condition of Algeria renders this pass no longer
necessary, it is no longer required (r).

Flags. We have already noticed what ships may carry the British

flag, and the penalty which attaches to the improper use of it(«).

(m) See pof/, Chap, y II., Insurance. Admiralty would grant a warrant of
(fl) M. S. Act, 1854, s. 13. arrest against a master for wearing the
(o) lb. sect 279. colours of a Queen's ship, as for a con-
(p) lb. sect. 259. tempt. Tfte Minerva, 3 Rob. 34. See
{q) See 8 & 9 Vict c. 89, s. 6, now as to the effect of the earlier statutes
repealed, and the earlier Registry Acts. and proclamations as to flags ; The Mi-
See also 1 Beawes, Lex Merc. 394. nerva, R, v. Miller, 1 Hagg. 197 ; it v.
(r) 12 & 13 Vict c. 90, s. 28.' Benson, 3 Hagg. 96. In these cases a
(i) Jnte, p. 17 ; M. S. Act, 1854, s. warrant of arrest is granted on affi.
105. See also the 8 & 9 Vict c. 87, davits. The Queen (in her qffice qf Jdmi-
s. 10, now repealed. It was held, that ralty) v. Ewen, 2 Jur., N. S. 454.
apart from this statute, the Court of

Digitized by



It 18 proper here to mention the offence of barratry, which^ Barratry.
although common to both masters and other mariners, is of .
more especial importance as regards the former. The word
"barratry"- is derived from the Italian barratrare, to cheat (0.
Any illegal, fraudulent or knavish conduct of the master or
mariners, by. which the freighters or owners are injured is, by
(Hir law, barratry (u). This offence may be considered, first, in
its effects as an act of misfeasance or wilful neglect against the
owner recognized by the common and maritime law; and
secondly, as subjecting the offender to punishments imposed by

In order to constitute barratry, the act must generally be
done fraudulently, and with a criminal intent ; and it is not suf-
ficient that it is merely against the interest of the owner {x).
It is not, however, necessary that the act ^ould have been done
with intent to defraud the owner, if it be illegal and wilful.
Thus where a master traded with an enemy, whereby the ship
was condemned, this was held to amount to barratry, although
his orders were to make the best purchases, and the trading
would have been beneficial to his owner, had the vessel not been
seized (y). Where the owner is a consenting party to the mas-
ter's act, be cannot set it up as barratry (z).

If the fraudulent intent be once shown to have existed any
act by which the owner's interest is prejudiced, although other-
wise of slight moment, is barratrous, as, for example, even the
dropping of an anchor (a). The following are also instances of
acts or omissions which (the intent and effect having been
proved) have been held to be barratry. The neglect to pay

(t) Ducange, in his Glossary, gives other foreign countries, barratry has a

a wider sense to the word " Barralaria,** more extensive signification. It com-

He defines it to mean ** fraus, dolus, qui prebends any fault on the part of the

fit in contracUbus et venditionibus ;" master or mariners, whether fraudulent

and see other definitions in the judg- or merely negligent, by which the owner

ment of the Court in The Patapsco In- is injured. Pothier Trait6 d' Assurance,

smrance Company v. Coulter, 8 Peters chap. 1, s. 65 ; Valin, liv. 3, tit 6, art.

(Amer.). 230. 28 ; Emerigon Trait6 des Assur. c. 12,

(k) Knight V. Cambridge, 2 Lord s. 3. See also as to the sense in which

Raym. 1349 ; S, C, 1 Str. 581 ; Staxnma it is used in modem French law. The

V. Brown, 2 16. 1173 ; Elton v. Brogden, EncyclopMie du Droit, tit. Baratariedu

14. 1264 ; Lockyer v. Qffley, 1 T. R. 252. Patron,

(x) Knight v. Cambridgty ubi sup,; (y) Earle v, Rowcrqft, 8 East, 126.

Stoma y, Broum, ubi tup,, and as cited (z) Per Lord Mansfield, Fallejo v.

by Lawrence, J., 7 T. R. 508 ; Phyn v. Wheeler, Cowp. 153 ; Ross v. Hunter, 4

Royal Exchange • Assurance Company, 7 T. R. 33 ; Everth v. Hannam, 6 Taunt

T. R. 505 ; and see Lord EUenborough's 875.

judgment in Earle v. Rowcroft, 8 East, (a) Ross v. Hunter, ubi sup,
133. By the law of France, and of some

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port dues (b) ; a wilful deviation for the captain's own conveni-
ence (c) ; cruizing for prizes without orders from the owners (d) ;
smuggling (e), or negligently allowing the crew to smuggle (f) ;
criminal delay {g) ; running away with the ship and selling her,
and part of the cargo (A) ; and breaking through a blockade (i).

The master, if also sole owner, cannot commit barratry within
the meaning which our law has attached to the word (A), but
barratry may be committed by a master who is also part
owner (Z). So there may be barratry with the privity of the
freighter against the owner (m) ; but it can be committed only
against the actual owner, or against one who is owner pro h&c
vice; as, for instance, one to whom the ship is let by charter-
party (n), in which case the freighter stands in this respect in
the position of owner, and the original owner may be guilty of
barratry against him (o).

The most malicious in design and mischievous in consequence
of the different acts which constitute barratry have been treated
by the Legislature as crimes, and visited by statutory punish-
ment. The first and most serious of these offences consists in
the maliciously destroying or damaging a vessel. This is go-
verned by two statutes, the 7 & 8 Geo. 4, c. 30, and the 7 Will.
4 & 1 Vict. c. 89 (p). By the former of these acts (y), any
person maliciously damaging otherwise than by fire, any ship
whether complete or not, with intent to destroy or render it
useless, is guilty of felony (r). By the latter, persons who ma-
liciously set fire to, cast away, or in anywise destroy any ship,
either with intent to murder, or whereby any life is endangered,
are guilty of felony, and may be sentenced to death; and a

(6) Knight v. Cambridge, as cited by P. 976, 9th ed.
Lord Mansfield, Cowp. 153. (») Vallejo y. Wheeler, Cowp. 153.

(c) Vall^o V. Wheeler, Cowp. 153 ; see (o) Soares v. Ttiomton, 7 Taunt. 627.
also Hibbert ▼. Martin, 1 Camp. 538 ; (p) See the earlier acts collected and
Hueks V. Thornton, Holt, 30. reviewed in Abbott on Ship. p. 185.

(d) Moss V. Byrom, 6 T. R. 879. (9) 7 & 8 Geo. 4, c. 30, s. 10. AU

(e) Lockyer v. Qfficy, I T. R. 252. the sections of this act which relate to
(/} Pipon y.Cope, 1 Camp. 434. shipping, except sect 10, are repealed
ig) Rotcow V. Corson, 8 Taunt. 684w by the 7 Will. 4 & 1 Vict. c. 89.

(h) lb, ; Dixon v. Reid, 5 B. & A. {r) lu R, v. Bowyer, 4 C. fit P. 559,

597 ; see also Toulmin y. Anderson, 1 Patteson, J., expressed an opinion that

Taunt. 227. a pleasure boat eighteen feet long was

(t) Goldschmidt ▼. Whitmore, 3 Taunt within this act. See also R, v. Smith,

508. ib, 569, where a similar question arose

(k) Nutt V. Bordieu, 1 T. R. 323. as to a barge. R. v. Ptdlp, 1 Moo. C

(/) Jones V. NiehoUon, 10 Exch. 28. C. 263 ; and R, v. Neville, ib. 458. The

See the authorities cited in this case as offence of destroying a vessel may be

to barratry generally. committed by one of the part owners.

(m) Boutfiower v. WUmer, 2 Selw. N. Reg. ▼. Wallace, 1 Car. & Marsh. 200.

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similar penalty is imposed upon any one who exhibits false
lights, or signals, with intent to bring any ship into danger, or
does anything tending to the immediate loss or destruction of
any ship in distress. By the same act, persons maliciously
setting fire to or destroying any ship, whether complete or not,
or setting fire to, casting away, or destroying any ship, with in-
tent to prejudice the owners of the ship, or of any goods on
board, or the underwriters of any policy of insurance upon the
ship, freight, or goods, are guilty of felony. And it is made a
felony maliciously to destroy any part of any ship in distress,
wrecked, or cast on shore, or any part of her cargo {$),

The next offence of this description is that of turning pirate,
running away with the ship or cargo, or revolting against the
master. By the 11 & 12 Will. 3, c. 7 (0, if the master or any
seaman in any place where the admiral has jurisdiction, betrays
his trust, and turns pirate, enemy or rebel, or runs away with
the ship, or any barge, boat, ordnance, ammunition or goods,
or yields them up voluntarily to any pirate, or brings seducing
messages from any pirate, enemy or rebel, or consults, combines
or confederates with, or attempts or endeavours to corrupt any
master, officer or mariner to commit such an offence, or lays
violent hands on his commander, or hinders him from fighting
in defence of his ship and goods, or confines his master, or makes
or endeavours to make a revolt on board, he is declared to be
pirate, felon and robber.

When the voyage is ended the master should make the earliest Duties after
possible report to his owner, and should take the ship according ^^^ voyage.
to the orders he may then, or previously, have received, to the
place where she is to discharge her cargo. He must also, if his
ship be a " foreign going ship," deliver to the shipping master
within forty-eight hours of the ship's arrival at her final port of
destination in the United Kingdom, or upon the discharge of the
crew, whichever first happens, the agreement with the crew(w).
He is also bound, whether ys ship be a " foreign going" or a
"home trade" ship, to make out, whenever the crew is dis-
charged in the United Kingdom, a list in a form sanctioned by

(«) 7 Win. 4 & 1 Vict. c. 89» as. 4, 5, sequent acts relating to piracy, are mo.

6 and 8. dified by the 7 Will. 4 & 1 Vict. c. 88.

(/) 11 & 12 WiU. 3, c. 7, s. 9. The («) M. S. Act, 1854, s. 161.
punishments imposed by thb and sub-


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the Board of Trade, containing particulars as to the tonnage of
the ship, the voyage, the names, ages, place of birth and qualities
of the crew, and as to the wages due to, and the effects belong-
ing to any of the crew that have died. These lists must also
mention any deaths, births, or marriages, and any injuries to the
crew, which have occurred on board (x). In the case of home
trade ships, they must be transmitted half yearly to a shipping
master, but in that of foreign going ships, they must be de-
livered to the shipping master before whom the crew is dis-
charged, within forty-eight hours of the ship's arrival, or on the
discharge of the crew, whichever happens first (y).

In the case of foreign going ships the master must also,
within the last-mentioned periods, deliver to the shipping mas-
ter before whom the crew is discharged, the official log. In the
case of home trade ships, this log must be transmitted half
yearly to a shipping master {z),

Customi laws. The master is also bound to conform to all the regulations
which are contained in the Customs Consolidation Act, the 16
& 17 Vict. c. 107. The entry of the cargo and payment of the
duties on it, which attach upon the merchant or his agent, need
not here be mentioned, but the following requirements of the
statute fall within the scope of the master's employment.

The ship must be brought quickly to the proper place of
mooring or unlading, without touching at any other place. The
master must bring to at the stations appointed for the boarding
of the officers of customs, and he must provide sufficient room
and shelter under the deck for any of these officers who may be
stationed on board (a). The officers of customs must be allowed
to board the ship and to stay on board until all the goods have
been delivered, and they must be permitted to have free access
to all parts of the ship, and to lock up, mark or secure any of
the goods. Any goods found concealed on board are liable to
forfeiture, and the master is liable to heavy penalties if any lock,
mark or seal placed by the custom house officers is wilfully
opened, altered, or broken, or if any goods are secretly conveyed
away, or the hatchways are opened after having been fastened
down (b),

(x) M. S. Act, 1854, sect. 273. (a) 16 & 17 Vict, c 107, e. 47.

iy) lb. sects. 274, 275. (6) lb, sect. 48.

(s) lb, sect. 286.

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No goods (except diamonds, buUioD, lobsters and fresh fish of
Britisfa taking, and in British ships) may be landed without
report or entry ; nor at any hours except those sanctioned by
the Commissioners of Customs ; nor may any goods be un-
shipped or landed except in the presence of a custom house
officer within the prescribed hours, and at a duly appointed place
for the landing of goods (c). The master must also whenever
any ship, whether laden or in ballast, arrives from parts beyond
the seas, duly report her arrival within twenty-four hours, and
before bulk is broken, according to the requirements of the sta-
tute. This report must contain the particulars and description
of the goods in a form given by the act, and must also mention
among other detaib the name and tonnage of the ship, and the
number of the crew, and the master must state that he has not
broken bulk since the ship's departure from the last foreign
place of loading (^).

At the time when the report is made the master must deliver
to the officers of customs, if required, the bills of lading or copies
of them, and must answer any questions put to him as to the
ship, cargo, crew or voyage ; and he is liable to a heavy penalty
if bulk is brdken, after the arrival of the ship within four leagues
of the coast, or if any alteration is made in the stowage of the
cargo so as to facilitate the unlading of any part of it, or if any
pert of it is staved, destroyed or thrown overboard, or any pack-
age is opened, unless this is accounted for to the satisfaction
of the Commissioners of Customs {e).

When the master has complied with the customs regulations Delivery of
his remaining duties are to obey the regulations of the harbour ^^^^^'
or port in which his vessel may be (/), and to deliver the cargo
to the consignee named in the bills of lading, or to his agent on
payment of the freight and of any other charges which he is
aititled to make (g).

Fifthly, as to the liability of the master, and that of the owners
and of the freighters, arising out of his acts,

(c) 16 & 17 Vict, c 107, a. 49. must be, from time to time, entered of all

id) lb. secL '50. the goods taken on board, and of their

(e) lb. sect. 53. The masters of delivery out of the ship. lb. sect 155.

coastinf^ ships are bound to keep a The custom house officers may search

cargo book stating the names of the these ships at any time and examine all

ship, the master and the ports to which the documents on board. lb. sect. 158.

the belongs, and to which, on each (/) See ante, "p. S6.

voyage, she is bound. In this book, (g) Post, Chap. VI., Contract of

which must be produced on demand to Affreightment.

the officers of customs, a full account

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liability on

As the master is not merely an ordinary agent, but to some
extent, and for some purposes, the owner of the ship for the
time being, his acts not only bind his principal, as those of an
ordinary agent, but he is personally bound by them, unless he
expressly confines the credit to the owner, and excludes any
liability on his own part (A). He is also usually liable for all
acts of negligence or misfeasance on the part of the crew, by
which the cargo or the property of others is injured (t). But he
is not liable for trespasses committed by them wilfully, or for
acts done beyond the scope of their ordinary employment (A) ;
nor does the ordinary rule with reference to the master's liability
apply to the captain of a Queen's ship, who has no power of
selecting his oflicers and crew, and who could not, therefore, in
fairness be made answerable for those whom he has not em-
ployed (Z). We have seen (m) that the clauses of the Merchant
Shipping Act, 1864, which limit the liability of owners, do not
apply to a master who is also part owner. If, however, the
master be joined as defendant in an action against the owners,
he will obtain the benefit of this protection since the damages
awarded must be joint (w).

Power to


The master, under the general authority which he possesses,
may do all things necessary for the due and proper prosecution
of the voyage in which the ship is engaged (o). And contracts
entered into by him relative to her usual employment are bind-
ing on the owner (p). This implied authority does not, however,
usually exist in cases in which the owner can himself personally
interfere ; as, for instance, when the ship is in a port where the
owner resides, or at which he has beforehand appointed an agent.

(h) Garnam v. Bennett, 2 Str. 816 ;
Hoskim y. Stay ton, Cas. temp. Hardwicke,
376; Story on Agency, s. 116; Essery
V. Cobb, 6 C. & P. 858.

(i) MoUoy, B. 2, c 3, s. 18. Where
a master (an infant) contracted to bring
goods to England, but did not deliver
them, it was held that he was liable in
the Admiralty Court notwithstanding
his infancy, the suit being in the nature
of detinue or trover at common law.
1 Roll. Abr. 530, Fumes v. Smith. In
Afichell V. Brown, 28 L. J., M. C 53, it
was held, that the owner of a vessel
might be convicted of throwing rubbish
into a navigable river contrary to the
£4 Geo. 3, c. 159, s. 11, although he was

not on board when the act was done.

{k) Bowcher v. Noidstrom, 1 Taunt

(/) Nicholson v. Mounsey, 15 East,

(m) jfnte, p. 51. See M. S. Act, 1854,
ss. 508, 504, 516.

(n) Wilson v. Dickson, 2 B. & A. 2.

(o) Per Lord Abinger, in Arthur v.
Barton, 6 M. & W. 138.

( p) Boson V. Sanford, Carth. 58 ; EUit
V. Turner, 8 T. R. 581 ; Speering v. De-
grave, 2 Vern. 643. See also as to the
authority of the master to settle claims
for freight and demurrage. Alexander
v.i)oiaie,lH. &N. 152.

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The TDBBter may bind the owners for repairs necessary for the
prosecution of the voyage, and for money borrowed and em-
ployed for this purpose, and these powers are not confined to
cases arising abroad, but exist also in a port in England, when
the owners have no resident agent there (q). And in a recent
case where a master borrowed a small sum of money at an Eng-
lish port to purchase provisions necessary for the use of the ship,
the Court held, that the jury was justified in inferring that there
was a reasonable necessity for this act, although there was no
proof that the goods could not have been obtained on credit, and
the owner lived within one day's post (r). It is usually other-
wise where the owner's residence is so little distant from the port
that the master may readily communicate with him(^). But
in all these cases the authority of the master is confined to such
outlay as is immediately necessary for the purpose of bringing
the ship to her destination ; therefore, although he may borrow
money where ready money is necessary, that is to say, where
certain payments must be made in the course of the voyage for
which credit is never given ; he may not borrow to pay for work
previously done on credit. Where a master borrowed money to
pay for repairs and towage already done, it was held that the
owner was not liable, although he might have been liable upon
the original contract under which the repairs and towage were
done (0.

An owner who has become owner since the ship sailed, and
who has not in any way recognized the agency of the master, is
not usually bound as such, by contracts for necessaries made
by the master abroad (u).

It is doubtful whether the master has authority to bind the
owner by stipulations in a charter-party with respect to ad-
vances to be made to the master by the charterer against the
freight (x).

The term '^ necessaries," in cases of this kind, means such
things as are fit and proper for the ship upon her voyage, and

(q) Gary ▼. White, 5 Bro. P. C. 32-5 ; or supplies famished to ships.
BobiasoH V. Lyall, 7 Price, 692 ; Arlhur (r) Edwards v. Haoill, 14 C. B. 107.

▼. Barton, 6 M. & W. 138; John* v. Si- («) Stonehoute v. Gent, 2 Q. B. 431,

mon; 2 Q. B. 424. By 19 & 20 Vict. note.

c. 97. B. 8. all ports within Great Britain {t) Beldon v. Campbell, 6 Exch. 886,

and Ireland, the Channel! slauds and the where see the observations of Martin,

blands adjacent, if part of the Queen's B., on Robinson v. Lyall, ubi sup,
dominions, are to be deemed home ports {u) Mackenxi€ v, Pooley, 11 Exch.

m rebdon to the rights and remedies of 638.
pcrsont haYing claims for repairs done (x) Oibbt ▼. Ckarleton, 26 L. J., Exch.

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such as a prudent owner would, if present, have ordered (y).
Where the master obtains credit, or borrows money to repair or
i^ctual the ship, the proof of the necessity for so doing, and of
the proper application of the money, rests with the person who
gives such credit or lends the money {z). If there was no oc-
casion for it, the master alone is debtor, and not the owners (a).
The master has no power to bind his owners in respect of
matters connected with the voyage but not necessary for its pro-
secution. Therefore, where disabled sailors had been landed,
and there was no probabihty that they would be able to return
to the ship and resume their duties, it was held that the mas-
ter could not pledge the owner's credit for their board and
lodging (J).

Hypothecation The authority of the master to sell or pledge the ship or
orS4o. * *^ cargo in cases of necessity will be noticed in Chapter VIII. on
Hypothecation, It is right, however, to mention here, that
the master has no authority to hypothecate the ship for money
advanced for repairs, unless the payment is made to depend on
her arrival ; nor can he pledge the ship herself and also the per-
sonal credit of the owners. An instrument providing that if
bills drawn by «i master on his owners were not accepted or
paid the lender might take possession of the ship, was held to be
void (c).

Although the immediate control of the ship as to her employ-

Online LibraryCharles Edward Pollock Frederic Philip MaudeCompendium of the law of merchant shipping → online text (page 16 of 101)