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Theophilus Parsons.

A treatise on maritime law. Including the law of shipping; the law of marine insurance; and the law and practice of admiralty (Volume 1) online

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leaving one hundred and forty chests of indigo, and thirty casks of tallow, which were
in auotlier warehouse, remaining. Tlie ship and the remaining cargo were afterwards
sold without the knowledge or jirivity of the defendants. The jury found that the
ship might have been repaired and the goods forwarded. The court held that only the
freight of the goods which remained, and whicli might have been sent on, was
li.iblc.

VOL. I. 34



398 ON THE LAW OF SIIIPl'ING. [BOOK I.

his negligence does not deprive the other owners of the benefit
of the statute.! Nor can the negligent part-owner be made
answerable beyond the value of the ship and freight, if the
action is in rem, and he is a party to the suit, merely by reason
of his entering his appearance as owner.^ The owners of a
vessel are, however, personally liable for costs, if the ship and
freight are not sufficient to compensate for the damage done.^

The statute of 26 Geo. 3, c. 86, was designed to apply only
to vessels usually employed in making sea voyages, and
not to small craft, lighters, or boats engaged in inland naviga-
tion.4

Where a liability is incurred by any ownex of a vessel in a
case where he is responsible only to the value of the ship and
freight, and several claims are made or apprehended in respect
to such liability, it is obvious that great injustice would be done
were the owner liable to each party interested, to the full value
of the ship and freight, and this w^ould be true, on the other
hand, in respect to the others having claims against the owner,
were it held that the latter was only liable to the first who
should obtain judgment against him. To obviate this difficulty
it has been provided that the owner may institute proceedings
in the High Court of Chancery in England or Ireland, and in
Scotland in the Court of Sessions, and in any British possession
in any competent court, to determine the amount of his liability,
and to distribute such amount ratably among the several claim-
ants, with power to the court to stop all actions and suits pend-
ing in any other court in relation to the same subject-matter.°
But as a general rule the court in which the case is pending will
not restrain the plaintiff from proceeding because the defendant



1 Wilson V. Dickson, 2 B. & Aid. 2.

2 The Volant, 1 W. Rob. 385.

3 The Volant, 1 W. Eob. 385; Dobroe v. Schroder, 6 Sim. 291 ; The John Dunn,
1 W. Rob. 159. A prohibition was afterwards moved for in this case in the Court of
Queen's Bench, but the rule was discharged, the court being of the opinion that the
true principle had been ado^ited in the admiralty court. Ex parte Eayne, 1 Q. B. 982,
1 Gale & D. 374.

* Hunter v. M'Gown, 1 Bligh, 573. It was held in this case that the owners of a
gabbert, a species of lighter, were liable for the loss of goods on board by an accidental
fire.

5 Act of 17 & 18 Vict. c. 104, § 514.



CH. XI.] now FAR LIABLE FOR TORTS OF THE MASTER. 399

has filed his bill in equity for relief.^ And in order to stay pro-
ceedings the owner must aver that he had incurred liability in
respect of some damage.- If a party obtains judgment in an-
other court before the owner institutes proceedings in chancery,
he is allowed his costs, but is entitled to no other preference
over the other claimants, and must share ratably with them in
the value of the ship and freight.^

Since the liability of the owners of a vessel is limited by
statute, the fact that, if the vessel is arrested, they give bail to a
larger amount, does not increase their liability.*

We shall now proceed to examine, somewhat at length, the
provisions of the statutes which have been passed in this coun-
try, restricting the liability of ship-owners. Local statutes were
first passed in Massachusetts^ and Maine,*^ and it was not till
the year 1851 that any general statute was enacted by congress."
The statutes of Massachusetts and Maine provide that " no ship-
owner shall be answerable, beyond the amount of his interest in
the ship and freight, for any embezzlement, loss, or destruction,
by the master or mariners, of any goods, wares, or merchan-
dise, or any property put on board of such ship or vessel, nor
for any act, matter or thing, damage, or forfeiture done, occa-
sioned or incurred, by the said master or mariners, without the
privity or knowledge of such owner." Neither of these statutes,
it will be seen, gives the right of abandonment, but in a case in
Maine, the statute seems to have been construed as if such a
clause existed;^ but the language of Mr. Justice Story, in a



1 Thiseldon v. Gibbons, 8 Dowl. P. C. 419, nom. Thistlcton v. Gibbous, 4 Jur.
629.

2 Hill V. Andrus, 1 Kay & J. 263.

^ Lcyccster v. Lop;.an, 3 Kay & J. 446.

* The Eichniond, 3 Ila^'g. Adin. 431 ; The Mary Caroline, 3 W. Rob. 101, 105;
The Duchcsse do Brabant, Eng:. Adni., 21 Law Ileportcr, 243.

5 Hev. Stats. Mass. c. 32, § 1.

6 Rev. Stats. Maine, 1841, c. 47, § 8 ; Rev. Stats. 1857, c. 30, § 5.
T Act of 185U c. 43, 9 U. S. Stats, at Large, 635.

^ Stinson v. Wyman, Davois, 172. The action in this case was on a bill of lading
to recover for damage done to goods by their being improperly carried on deck. It
was held, that the statnte was intended to-limit tlic rcsponsiliility of the owner for losses
occasioned by the Aiult or negligence of the master, as well as for those which arise
from direct and wilful fraud ; and that if the decree should exhaust the whole value of
the ship and freight, tlie respondents, by abandoning, would be released from further
responsibility.



400 ON THE LAW OF SHIPPING. [BOOK I.

subsequent case under the JMassachusetts statute, tends to show
that the value of the ship and freight in cases of tort, as well as
in cases of contract, is to be taken at the time when the right of
action accrues to the injured party. ^

The United States statute, passed in ISol,^ differs in some
respects from the statutes previously referred to. The third sec-
tion provides, " That the liability of the owner or owners of any
ship or vessel, for any embezzlement, loss, or destruction, by the
master, officers, mariners, passengers, or any other person or per-



1 Pope V. Nickerson, 3 Story, 465. The action in this case was in personam against
the owners of the vessel to recover a cargo of fruit and wine consigned to the plaintiffs.
The vessel sailed in a sea-worthy condition, but was obliged, on the voyage, to put into
an intermediate port in distress. Part of the cargo, which was in a damaged condi-
tion, was sold and the proceeds applied to defraying the expenses of repairing the ves-
sel. This amount not being sufficient the master obtained the rest on a bottomry bond
intended to cover the vessel, cargo, and freight. The vessel then sailed, but was
obliged to put back, and the rest of the cargo, part of which was in a perishing condi-
tion and part not, was sold together with the ship. The proceeds of vessel and cargo
were applied to the payment of the bond, and the surplus paid over to the master.
There were three questions presented under the statute of Massachusetts. First,
whether the statute applied to cases of contracts made by the master within the scope
of his authority. Second, admitting the statute applied, at what time the value of the
ship and freight was to be taken ; and, third, as to the time of the valuation in case
of tort. On the first point Mr. Justice Story was of the opinion, in accordance with
the authorities cited ante, p. 396, note 1, that the statute was not applicable. He then
was of the opinion that if the statute did apply to the case where the master appro-
priated the proceeds arising from the sale of a perishable cargo, to the repairing of the
ship, the value of the ship and freight was to be taken as it existed at the time of such
appropriation, and not subsequently, when it was burdened with a bottomry bond. He
said, p. 498 : " But at what time is this value to be ascertained and fixed ? It must be the
value at the time when the right of action against the owners first accrues, and not at
any subsequent period. Suppose, after the right of action has attached, the ship
perislies, tliat will not affect the right of recovery of the shipper in a case of tort ; and
a fortiori it will not in a case of contract made by the master, by and under the au-
thority of the owners." In regard to the third question, as to the liability of the owners
for the goods finally sold, Mr. Justice Story said, p. 504 : " They are liable therefor to
the extent of their interest in the schooner and freight, and no further, at the time of the
misconduct and tortious sale. But at that very time the ship was under a bottomry
bond greater than her value, and by the breaking up of the voyage, and the sale of the
schooner, the bond became absolutely due to the bond holders. These were acts of the
master contemporary with the voluntary sale of the cargo, and indeed they may all be
treated as one and the same transaction, constituting parts of the res gestce, and done, as
it were, uno flatu ct ttno intuitu. So that, at the time, the owners had, in effect, no
interest whatsoever in the schooner or freight, but the value of both had been ex-
hausted."

2 Ch. 43, 9 U. S. Stats, at Large, 635.



CH. XI.] now FAR LIABLE FOR TORTS OF THE MASTER. 401

sons, of any property, goods, or merchandise, shipped or put on
board of such ship or vessel, or for any loss, damage, or injury
by collision, or for any act, matter, or thing, loss, damage, or for-
feiture, done, occasioned, or incurred, without the privity or
knowledge of such owner or owners, shall in no case exceed the
amount or value of the interest of such owner or owners respec-
tively, in such ship or vessel, and her freight then pending."

The fourth section provides, " That if any such embezzlement,
loss, or destruction shall be suffered by several freighters or
owners of goods, wares, or merchandise, or any property what-
ever, on the same voyage, and the whole value of the ship
or vessel and her freight for the voyage, shall not be sufficient to
make compensation to each of them, they shall receive compen-
sation from the owner or owners of the ship and vessel, in pro-
portion to their respective losses ; and for that purpose the said
freighters and owners of the property, and the owner or owners
of the ship or vessel, or any of them, may take the appropriate
proceedings in any court, for the purpose of apportioning the
sum for which the owner or owners of the ship or vessel may be
liable amongst the parties entitled thereto.^ And it shall be
deemed a sufficient compliance with the requirements of this
act, on the part of such owner or owners, if he or they shall
transfer his or their interest in such vessel and freight, for the
benefit of such claimants, to a trustee, to be appointed by any
court of competent jurisdiction, to act as such trustee for the
person or persons who may prove to be legally entitled thereto,
from and after which transfer, all claim and proceedings against
the owner or owners shall cease."

Several questions of great difficulty and importance have
arisen in respect to the construction of these two sections.
First, Is the value of the ship and freight to be estimated imme-
diately prior to the occurrence of the event which imposed the
liability on the ship-owner, or is that existing at the time of suit
brought to be taken ? Second, Does the same rule apply to cases
of a breach of a contract of aflrcightment and those of collision,
under the third section ? Third, How far does the right of



1 The 2d section of the Massacliusctts statute ami the 9tli section of the Maine stat-
ute are very similar to this. Ilev. Stats. Mass. c. .'52 ; Rev. Stats. Maine, c. 47. Tliis
is substantially rcenactecl by Rev. Stats. Maine, 1857, c. 3G, § 5.

34*



402 ON THE LAW OF SHIPPING. [BOOK I.

abandonment given by the fourth section correspond with the
provisions of the maritime law, and what effect does it have upon
the third section as determining the time when the value of the
ship and freight is to be taken ? Fourth, Is an abandonment
allowed in a case of collision under the fourth section ?

It is a primary rule in the interpretation of a statute, that all
the sections thereof are to be construed together, so that one
section may often be explanatory of another.^ We shall, there-
fore, first consider the effect of the fourth section relative to the
right of abandonment.

The first part of this section, we think, clearly does not apply
to a case of collision. It is limited in express terms to the case
of loss suffered by freighters or owners of goods or any property
whatever on the same voyage ; and is intended to allow the pro-
ceedings therein set forth only in a case of a breach of a contract
of affreightment, where several claims are pending against, or
apprehended by, the owners of the ship. The omission of the
subject of collision seems to have arisen by the framers of the
statute following the statutes of Massachusetts and Maine,
which, like the early English statutes of 7 Geo. 2, c. 15, and 26
Geo. 3, c. 86, limited the owner's liability to cases of affreight-
ment and did not apply to collision. We infer this because the
language of the 53 Geo. 3, c. 159, which applies to collision, is
so clear and explicit on this point that it must have been fol-
lowed, had it not been overlooked, or intentionally passed over.
This statute provides that "if several persons shall suffer any
loss or damage in or to their goods, wares, merchandises, ships,
or otherwise," etc.

The question then is, whether the last part of the fourth sec-
tion, which commences, " And it shall be deemed a sufficient
compliance with the requirements of this act," applies solely to
the former part of the same section, or to the third section. If
the former construction be the true one, the right of abandon-
ment is but an extension of the right given by the English and
American statutes alike of applying to the court where there are
several claims pending or apprehended. So that the ship-



1 See The Dundee, 1 Hagg. Adm. 109, 121 ; Wattson v. Marks, U. S. D. C, Penn.,
2 Am. Law Register, 157.



CH. XI.] HOW FAR LIABLE FOR TORTS OF THE MASTER. 403

owner has the right of ceasing to be a party to the suit by
transferring his interest (which must then be construed to mean
the amount of his liability) to a trustee.

It is an undoubted principle, that statutes which are in
derogation of the common law are to be construed strictly,
and this, and similar statutes, limiting the liability of ship-
owners, are clearly subject to this rule.^ Now by the common
law the owner was liable to the full extent of the damage done.
But the right of action did not accrue in all cases at the same
time. In a case of tort, the right of action existed the moment
the tort took place, while in an action for a breach of contract,
no right existed till the time when the contract was broken, or
when it became evident that it could not be performed. It
would, therefore, follow that if the right of abandonment does
not apply to any thing more than the first part of the fourth sec-
tion, the value of the ship and freight in a case of collision
should be taken at the time when the right of action accrued,
and this, according to the English decisions, is the value imme-
diately prior to the accident. In cases of contracts of affreight-
ment the right of action may accrue at different times accord-
ing to circumstances. Thus, if on a voyage the goods are
embezzled, it may well be that the right does not accrue till the
end of the voyage because the master may obtain possession of
the goods and deliver them, in accordance with the terms of the
bill of lading. But where the goods are wrongfully sold by the
master and the voyage broken up, we think it equally clear that
the right of action accrues at once and that the value of the ship
and freight should be estimated at that time.^

It only remains, then, to consider to what the last part of the
fourth section was intended to apply, ^he term "for such
claimants " would seern clearly to refer to the claimants men-
tioned in the former part of the section, and not to extend to the
third section, in which the word does not occur. It may be said



1 Pope V. Nickerson, 3 Story, 463; The Rebecca, Ware, 188; The riiebc. Ware,
263, 271 ; Stinson v. AV3-man, Davcis, 172, 175; The Karasan, 5 Rob. Adm. 291 ; The
Benares, 1 Eng. L. & Eq. 637 ; Low v. Mumford, 14 Johns. 426 ; Patten v. Gurncv,
17 Mass. 182.

2 See Pope I'. Nickerson, 3 Story, 465 ; Wilson v. Dickson, 2 B. & Aid. 2 ; Cannan
V. Meabum, 1 Bing. 465.



404 ON THE LAW OF SHIPPING. [bOOK I.

that since the trustee is authorized to hold for the benefit of " the
person or persons who may prove to be entitled thereto," it fol-
lows that the act had reference to a case where there was but
one claimant, and this could only be under the third section.
But the answer is, that although there be several claimants, yet
only one may be entitled to recover, and the word " person " is
meant to apply to him.

Our confidence in this position is somewhat shaken by a
learned and elaborate decision in the District Court of the Penn-
sylvania District,! but we think further adjudication is necessary
to determine the various points which have arisen under this
statute. It was also held, in this case, that the fact of the ves-
sel's being insured and a loss paid, would confer no rights upon
the shipper, this not being an " interest in the vessel " within the
meaning of that term, in the Act of 1851.

In respect to the "freight then pending," it has been held that
the earnings of the vessel in transporting the goods of the own-
ers are to be included.^

The second section of the Act of 1851,^ provides " that if any
shipper or shippers of platina, gold, gold dust, silver, bullion, or



1 Wattson V. Marks, U. S. D. C, Penn., 2 Am. Law Register, 157. The point
actually decided in this case does not conflict, we think, with any of the English cases.
And the opinion of the court, though veiy learned and elaborate, does not seem to be in
eveiy respect accurate, especially in stating the points decided in cases cited in the course
of the decision. The libel was in personam upon a contract of affreightment. The vessel
was wrecked on the coast of California, and at some time, cither shortly before or after
she struck, the goods of the libellant were stolen by some person unknown. Kane, J.,
said, p. 163 : "But whether the robbery preceded or followed the moment of wreck, or
was contemporaneous with it, is in my judgment of no importance." This opinion
proceeds on two grounds, first, that aside from the fourth section of the statute the
value of the^ip and freight is to be taken at the time the right of action accrued to
the shipper, and that " the right of action, in a contract of affreightment against the
carrier, unlike that which grows out of a collision, does not accrue till the end of the
voyage, or the lapse of a reasonable time for the delivery of the cargo." Artd, second,
because under the fourth section the measure of the ship-owner's liability must be, " in
cases of affreightment at least, the value of the vessel and freight at the time of suit
brought." The reason given for this is, that the transfer of his interest could not pass
more than he had at the time. But the words "interest in such vessel and freight"
may mean something more than merely his share in the vessel, and niay be construed
as the amount due by reason of such ownership, or in other words, his interest in
the ship and freight at the time the right of action accrued.

2 Allen v. Mackay, U. S. D. C, Mass., 16 Law Reporter, 686.

3 Ch. 43, 9 U. S. Stats, at Large, 635.



en. XI.] now far liable for torts of the master. 405

other precious metals, coins, jewelry, bills of any bank or public
body, diamonds or other precious stones, shall lade the same on
board of any ship or vessel, without, at the time of such lading,
giving to the master, agent, owner, or owners of the ship or ves-
sel receiving the same, a note in writing of the true character
and value thereof, and have the same entered on the bill of lad-
ing therefor, the master and owner or owners of the said vessel
shall not be liable, as carriers thereof, in any form or manner.
Nor shall any such master or owners be liable for any such valu-
able goods beyond the value and according to the character
thereof so notified and entered."

Under this statute it has been held, that where the contract of
carriage has been clearly defined in all its particulars by the par-
ties in the bill of lading, and there is no imputation of fraud or
mistake against the shipper, but he has fully executed his part
of the contract, the ship-owner shall not relieve himself from
liability by alleging that there has been a want of literal con-
formity to the provisions of this section; and that the carrier is
estopped from denying his liability, if the bill of lading contains
a substantial and clear recognition of all the facts which the
statute required the shipper to inform the master of.^

The English statute of 17 & 18 Vict. c. 104, § 503, exempts
the owners of a vessel from loss occasioned by reason of rob-
bery, embezzlement, making away with or secreting similar arti-
cles, " unless the owner, or shipper thereof, has, at the time of
shipping the same, inserted in his bills of lading, or otherwise
declared in writing to the master or owner of such ship, the true
nature and value of such articles." Under this statute it has
been held, that the description in the bill of lading of a parcel
of gold shipped as " one box containing about two hundred and
forty-eight ounces of gold dust," is not a sufficient statement of
its value.2



1 Wattson V. Marks, U. S. D. C, Penn., 2 Am. Law Register, 157. The case of
Greyor v. The Black AVanior, U. S. I). C., La., Boston Courier, March 18, 1858,
seems to be opposed to so liberal a construction, but the report of the case does not
state whether or not the bill of lading contained a statement of the facts required by
the statute to be in the note.

- Williams v. African Steamship Co., 1 II. & N. 300, 37 Eng. L. & Eq. 462. lu
Gibbs V. Potter, 10 M. & W. 70, on a shipment of a cargo from Valparaiso to Eng-



406 . ON THE LAW OF SniPPINQ. [BOOK I.

We have already seen that both in England and in this coun-
try the owner of a vessel is not liable for damage done to goods
by an accidental fire happening to, or on board, of a vessel.^
The act of 1851 does not apply to any canal boat, barge, or
lighter, or to any vessel of any description whatsoever, used in
river or inland navigation.^ Under this section it has been held,
that a vessel on Lake Erie is not a vessel used in inland navi-
gation, the lakes not being considered as inland waters.^



SECTION IV.

OF TnE CONTRACTS OF BOTTOMRY AND OF RESPONDENTIA.

A. Of the purpose of a Bottomry Bond.

One of the most important of the powers of the master is
that of making a bottomry bond. By this instrument the ship
is hypothecated for the payment of money borrowed.* As
usually defined, its essentials are, that it shall bind the ship for
the payment of the money, provided the ship perform a certain
voyage and arrive in safety ; and if the ship be lost, no part of



land, the bills of lading described the property as " 1,338 hard dollars," which was a
coin current at Valparaiso at the time. It was held to be a sufficient compliance with
the provisions of the statute of 26 Geo. 3, c. 86, s. 3, which is similar to Dhat above,
on the ground that it is enough to state the value at the port of shipment. Lord Ahin-
ger also doubted whether the act could apply to countries not subject to British rule,
and was clearly of the opinion that if it did, it could only be when the goods were
shipped to an English port.

1 See ante, p. 183, note.

2 § 7, 9 U. S. Stats, at Large, 636.

3 Moore v. American Transp. Co., Supreme Ct., Mich., Boston Courier, Aug. 3,
1858.

* The contract of bottomiy is so called because the keel or bottom of the ship is
pledged, a part being figuratively used for the whole. The Atlas, 2 Hagg. Adm. 48, 53 ;
Scarborough v. Lyrus, Latch, 252, Noy, 95. In Blaine v. The Charles Carter, 4
Cranch, 328, Chase, J., said : " A bottomry bond made by the master, vests no abso-
lute indefeasible interest in the ship on which it is founded, but gives a claim upon her,
which may be enforced, with all the expedition and efficiency of the admiralty process."
See also, Johnson v. Shippen, 2 Ld. Eaym. 982 ; Johnson v. Greaves, 2 Taunt. 344 ;



Online LibraryTheophilus ParsonsA treatise on maritime law. Including the law of shipping; the law of marine insurance; and the law and practice of admiralty (Volume 1) → online text (page 55 of 99)