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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of master, etc. beyond value of ship and freight, 397, 398.
PENAL SUM, in a charter-party, not a limit of liability, 283.
PERSONAL PROPERTY, law of, how related to law of shipping, 25.

rules regulating sale of, how applicable to sale of ship, 69-81. See Sale of
Ship, V.
PENALTY, not enforced against seamen, 445, n. 4.
PILOTS, 479-488.

I. Who Pilots are, and what their Duties are, 479-484.
pilot boats bound to what rules of navigation, 201.
formerly two meanings, — sea pilot and coast pilot, 479.
pilot for many purposes a mariner, 479.
has peculiar duties, 479.
office of, regulated by law, 479.

States ordered by congress to make their own laws as to, 479.
vessel going into or out of any water bounding two States may employ pilot

of either, 479, n.
questions arising under, cognizable in State courts, 479.
United States courts have concurrent jurisdiction, 479, n., 480, n.
State laws entitled to liberal construction, and why, 480, n.
constitutional, 480, n.
differ somewhat, 480, n.
to act as, must be commissioned, 480.

unauthorized person may guide vessel, but can recover no compensation
allowed by law, 480.

nor any compensation, if he fiilsely pretended to have a commission,

and is liable civilly in damages, and criminally for any losses or inju-
ries resulting, 480.
pilot should have evidence with him of his authority, and why, 481.
difficulty of piloting increases with draft of water, 481.
oldest and most experienced, only allowed to pilot largest ships, 481.
no vessel bound to take one on board, 481.
if one offers, and is ready, vessel must pay pilotage fees, 481.
but if he offers and is refused, cannot maintain a claim for work and labor

done, 481, n.
how master must approach pilot ground, 481, n.
what constitutes an offer entitling pilot to his fees, 481.

not necessary to go on board and tender services to master, 481.
when hailing vessel sufficient, 481.
association of pilots in some ports and for what purposes, 481.
in others, each gets what he can, 482.
advantage of latter system, 482.

whether tliose at great distances have same authority, rights, and responsi-
bilities, as when nearer port, 482.
carried by some coasting steamers, 482.

absolute and exclusive control while on board in absence of master, and mas-
ter not then liable for accident, 482.

INDEX. 745

PILOTS — Continued.

his control in presence of master, 482.

has control as soon as he stands on deck, but not such as wholly to supersede
the master, 482.
master not liable for wilful injury by pilot, 482, n.
but when liable in case of a steamboat colliding, pilot being hired by
owners and at wheel, 482, n.
master's duty to observe, 482 and 484, n.

when master may disobey, and dispossess him of his authority, 483.
injury caused by negligence of pilot alone, owners not responsible, 483, n.
othenvise, if negligence in the master, 483, n., 488, n.
duty of pilot to determine when vessel should be brought up, 483, n.
to select time and place of coming to anchor, 483, n.

so when ship taking her berth, time and manner of dropping anchor, 483, n.
and manner of catting pi'cparatory to bringing up to take berth, 483, n.
in California, held, not his duty to select berth, 483, u.
but shall moor the vessel, 483, n.
although pilot on board, master's duty to see that good look-out is kept,

483, n.
pilot to direct the course, master to have the management, of ship, 483, n.
master's duty to give orders to cut rigging when two vessels entangled,
483, n.
or send down top-gallant and main-royal yards, 483, n.
if pilot remiss in duty, how far, and when, master may interfere, 483, n., 484, n-
if pilot leaves deck for a few minutes, and gives command to second mate, and

collision occurs, partly through fault of officer, ship responsible, 484, n.
altering helm, upon being hailed, without exercising Iiis own judgment, own-
ers liable, 484, n.
suggestions to, by master not an interference with, 484, n.
what orders from boatswain or master would be, 484, n.
when master liable for pilot's act or default, 484, n.
II. How FAR Owners responsible for Torts of Pilot, 4S4-4S8.
servant of owner, 484.

for injuries resulting from default of, why owner I'csponsible, 484.
employed by owner, vessel held liable, 485, n.
in England, provided by statute owner not liable, 485, n.
alone in fault, owners not liable, 485, n.

neglect in navigation of vessel by, prima facie attributable to him, 485.
burden on owners to show tliat pilot was alone in fault, 485.
in constant employ of owners for fifteen years, owners held not liable, 485, u.
where he has done his duty, but cannot leave the ship by reason of storm,
P owners entitled to legal protection his presence gives, 485, n.

jurisdiction of the high court of admiralty, 48G, n.
special provision in regard to, in particular acts, 486, and n.
ports of Liverpool and Newcastle, 486.

collision of two American vessels in Liverpool, held owners not

liable if pilot on board, 486, n.
master to take on board or pay pilotage, 486.
whether taken on board I)y such compulsion that owner not liable for his
acts, 486.
weight of authority in England, 486.
conflict of decisions, 486, n.

VOL. I. 63



FILOTS— Continued.

being alone to blame owners not liable, 487, n.
in fbis country question unsettled, 486.
opinion of Curtis, J., that owners not liable, 487, n.
opinions of Geiek and Story, JJ., as to act of Pennsylvania that
every vessel shall be obliged to receive a pilot, not compulsorj-, 487, n.
in California vessel in charge of a licensed pilot, owner not lial)le for

injuries through pilot's negligence or misconduct, 487, n.
but if master in fault, otherwise, 487, n.
ship neglecting to take one offering, owners answerable for the neglect, 487.
ship lost by neglect of captors to take pilot ; liability of captors to owners,

487, n.
if none can be obtained, and the most judicious course for master is to go in

without one, owners not liable, 487, n.
pilots themselves answerable for damage by negligence or default, 487.
for negligently running into another siiip, 488, n.
but not for collision when steering by direction of officer in charge,

488, n., 483, n.
where steamboat hired for towing vessel, and they are attached, 488, n.
liable in damages civilly and crimiually for refusing to board a vessel,
488, n.
pilotage, how contributed for, 312.
PLATINA, limitation of carrier's liability for loss of, 404, 405.
PLEDGE, of unfinished vessel, 77, n.

how distinguished from Bottomry, Respondentia, and Mortgage, 118.
, not to be made by factor, 363.
PORT, of registration, or enrolment, 32.
foreign, 415, n.
charges, 312.
of discharge, 444, n.
ports to be Visited in what order, 445.
POTHIER, 6, 13.
POSSESSION, as evidence 'of ownership, 44.

of property by the court, to warrant sale, 67, 68.
as affecting the question of sale, 58, 78-81. See Sale of Ship, V. 4.
what notice of ownership supersedes, 81, n.
of part-owner, 81, n.
of mortgagor, when of mortgagee, 81, n.

of mortgagee, as determining his liability as owner. See Owner.
of party who mans the vessel, 233.
under a charter-party, 233-236.

constructive of vendor, so as to give right to stop in transitu. See Stoppaget
in Transitu, III.
PRECIOUS SIETALS, contributory value of, in general average, 323.

limitation of carrier's liability for loss of, 405.
PREFERRED CLAIMS, four classes of, under JMissomi statute, 109, n.
PRIMAGE, 311,312, 379.
PRIVATEER, powers of master of, 387.

liability of owners of, for the torts and acts of officers and crew, 393.
PRIZE. See Forfeiture.

sale of ship condemned as, 65.

INDEX. 747

PROFITS, of ship, bill in equity filed on account of, 83.

contributory value of, in general average, 328.
PROOF, burden of. See Evidence.

PROMISSORY KOTES. See Bills of Exchange and Promissory Notes.
PROMOTION, of officers and seamen, 448-450.

effect of, upon forfeiture of wages, 469.
PROVISIONS, 452-454. See Seamen, III.

as appurtenant to ship, 72, n.

when average loss. See General Average.
PRUDENT UNINSURED OWNER, doctrine of, 62, and n.
PUNISHMENT, of seamen, 4G3-470. See Seamen, VII.

QUARANTINE, whether delay by, gives claim to demurrage, 263, 264.

detention by, wages and provisions not subject to average, 300, 301.
expenses, contribution for, 312.


RACING. See Collision.

RANSOM, whether subject of general average, 298, 299.

REAL ESTATE, law of, how related to law of shipping, 25, 47.

RECEIPT, for goods delivered on board ship, its use and effect, 133,, 134.

bill of lading considered as, 136, n., 137, n., 143, n., 358.

of seamen, effect of, 446, 447.
RECONSTRUCTION, of ship, 72, 73, and n. 1, 74, 75.
I. History of, 25-27.

law of shipping stands between real law and law of personal property, 25.

ship personal property, but peculiar, 25, 47.

English registry and navigation acts, origin and provisions of, 26, 27.

character and advantages of British vessels, 26.

restrictions upon foreign vessels, 26, 27.

American registry acts, 27.
11. What Ships may be Registered and what Enrolled, 28-32.

acts of 1789 and 1792, 28.

must be built in the United States, 27.

and owned wholly by citizens resident here, unless, 28, 29 ; 37.

foreign residence as disqualification for ownership, 29 ; 37.

statute of 1804, 29.

transfer of registered ship to foreigner, subjects to forfeiture wlien, 29 ; 36,37.

statute of 1793 as to enrolment, 29.

enrolled and licensed ships cannot proceed on a foreign voyage without tak-
ing out register, 29, 30.

subject to forfeiture if they attempt it, 30.

what constitutes a " foreign voyage," 30.
whaling voyage not, 30.
whether whale ship should be registered or enrolled, 30, 31.

vessel under twcntj^ tons may be licensed and need not be enrolled, 31.

registration of vessels built here belonging to foreigners, 31.

748 . INDEX.


what recital in bill of sale necessary to new registration, 31. Sec also Sale nj

Ship, I.
private acts of .congress, authorizing registration, 31, 32.

III. How Vessels may be Registered ok Enrolled, 32-.34.

at what port, 32.

name to be conspicuously painted on stern, 32.
what oaths and certificates necessary, 32 ; 38, 39.
the disclosure of equitable interests, 32;. 41, 42, n.
mortgagee may take out register, 42.
registration bond and provisions of, 32.
steamboats, how registered, 33.
whale ships, if owned by incorporated company, 33.
temporary registration, 33.
change of captain, to be indorsed, 33.
loss of registCB, 33.

new register, upon sale of vessel, 33, 37.

after seizure, capture, or condemnation by, or sale to, a foreigner, vessel can-
not be again registered, unless, 34.

IV. Effect of Registry and Enrolment, 34-4G.

enrolled vessels must be licensed annually, 34, 35.

provisions of license, 35.

forfeiture for forging, or using another ship's license, 35 ; 38.

penalty for not complying with license, 35.

expiration and renewal of license, 35.

change of register for enrolment and vice versa, 35.

complications of the system, 35.

simpler method proposed, 35.

neither registration nor enrolment required, 36, 39.

disadvantages without, 36.

registration universal, 36.

change of vessel's name, hpw authorized, 36.

sale of enrolled vessel to foreigner subjects to forfeiture, 36, 37.

but of registered vessel, deprives her of American character only, 36, 37.

forfeiture for false oath, 37.

when the property in a forfeited vessel vests in the United States, 37.

sale by part-owner without registration, 33, 37.

false oath taken innocently subjects to forfeiture, 37.

when the master may be an American citizen resident abroad, 37.

but part-owner may not be, unless, 28, 29, 37.

forfeiture for fraudulent use of certificate of registry, 38.

temporary transfer to alien, for purpose of evading law of foreign countiy, 38.

in case of loss, register to be sent where, 38.

proof of infractions of registry law, 38.

enrolment upon oath of master only, 38, 39 ; 32.

productions of the English possessions in the East Indies may be brought

here in British vessel, 39.
registration wholly voluntary, 33, 39.

the register not a public, but a private document, 40, 41, 80, 81.
how far evidence of national character, as against party obtaining, 41.

as between third parties, 41, 46.
how far evidence of ownership, as against party obtaining, 39; 40-46; 80^
81: 389.

IXDEX. • 749

as against third parties, .39 ; 40-46; 80, 81.
the oath of ownership applies to legal and not equitable ownership, 41,

42 ; 32.
mortgagee may take out register, 42.
legal owner may contradict the register by showing cquit:lble title in

another party, 42, 43.
trasts bj' acts of parties, and operation of law, 43.
rights under a prior, unrecorded mortgage, agreement for sale, or claim,
as against subsequent party holding recorded title, 42, 43. *
the registry as evidence of the continuation of ownership, 43, 44 ; 80, 81.
under British registry acts conclusive, except, 43.
under American acts not conclusive, or exclusive, 33, 34.
possession, assertion of ownership, and notoriety, as evidence of own-
ership, 44.
the register as evidence in favor of parties to it, 39 ; 44-46.
V. In other Respects :

sale, or transfer, of ship, how affected by registration act. See Sale of

Ship, I., II.
registration of builder's certificate, 78.

share of part-owner to be inserted in register or enrolment, 82, n. 2.
whether charter-party must be registered, 231.
RELEASE, liability of part-owner in solido, notwithstanding, 90.
REPAIRS, cost of, and ability to obtain, criterion of master's power to sell ship, 60, n.
61 n. See Sale of Ship, III.
however extensive do not change ship, 72, 73, n. 1, 74, 75.
authority of one part-owner to procure, 87, n. 1.
liability of part-owners for, 89-93. See Part-Oicmers, III.
liability of owners for. See Oicmers.
duty of owners to keep in repair. Sec Owners.
warranty for, in charter-party, 238.

bottomry bond for. See Bottomry and Respondentia, IV., F.
when the subject of general avei-agc. See General Average.
authority of master to bind owners for. See Master.
REPLEVIN by one part-owner against another, 85.
as affecting sale of ship, 69.

in charter-party, as to burden of ship, 237, and n., 238, n.
as to national character, 238.
as to standing of ship, as "A 1," 238.
of sea-worthiness, 238-240, and n.
Jis to repairs, 238, 240, n.
RESPONDENTIA. See Bottomry and Respondentia.
RETURNS, duty of ship's husband as to, 98, 99, n. 2.

liens on, 102.
RHODIAN LAWS, 6, 7, 286.
RIGGING, as appurtenant to ship, 72, n.

RUBRICS, of the civil law, 6^ 7.
RUDDER, as appurtenant to ship, 72, n.


750 • INDEX.


SAILS, as appurtenant to ship, 72, n.
SAILORS. See Seamen.
SALE OF SHIP, 47-81.

I. Sale without Wkiting, 47-55.

transfers of real and of personal estate compared, 47.

by English and American registry acts, change of title in the vessels must be
• indorsed on certificate of registry ; and the certificate of registry must be
recited at length in instrument of sale, 31, 48.
■ English act avoids sale otherwise made, 48, 56, n., and 57, n.
American act of 1792 withholds the privileges of American vessels simply,
48, 57, n.
oral sale valid under this act, 52-55.
the want of constitutional power in congress the cause of this difference, 48-50.
provisions and eifect of the registration act of 1850, 51, 55. See also fos<, II.
its constitutionality, 51, 55.

independent of statute no bill of sale, or writing, necessary to sale, 51-55, 56, n.
transfer without writing does not absolutely avoid national character, and bill
of sale may be executed at any time before application for new register, 56, u.
effect of forfeiture, 56, 57, n.
executory agreement to sell, 57, n.
misrecital of certificate in bill of sale, 57, n.
transfer by operation of law, not affected by registry acts, 57, n.

II. Tkaxsfer by Bill of Sale, 56-59.

grand bill of sale, 56, 57, 76, 77.
form of, 57.

effect of U. S. statute of 1850, upon State statutes, as to the recording of per-
sonal property mortgages, 57, 58. See also ante, I.
must be recorded at custom-house, where vessel last registered, 59, n. 1 .
this act does not apply to charter-parties, 59, n. 1.
whether it abolishes State statutes, 59, n. 1.

■ lien on vessels for supplies need not be recorded under this statute, 59,
n. 1.
if ship is at sea when mortgaged, 58.
mortgage of goods at sea, 58.

III. Sale by the Master, 59-65. See Master.

valid, when justified by necessity, 59.

no power to sell under several foreign ordinances, 59, n.

but might borrow on ship's credit, 59, n.

power not originally recognized in England, 59, n.

how the present doctrine grew up, 59, n.

not sufficient that sale be honest and for the benefit of all concerned, 59, n.,

there must be a necessity, 59, n.
what is a necessity, 60, and n., 386.
moral necessity, 60, n.

cost of, and ability to obtain, repairs, criterion of necessity, 60, n.
may sell, if ship is total wreck, 61, n.

or if cost of rcpairs would exceed value of ship, 61, n.
the master's opinion of the necessitj^ 61, n.
sale at Bhering's Straits to three sea captains held invalid, 61, n.

INDEX. "^^1

SALE OF SllW — Continued.

whether the validity of the sale is to depend on the event of the vessel s

safety, 61, n.
actual danger, creating the necessity, not inconsistent with speedy escape, 6-
whether master may sell if prudent owner would have sold, 62.
the doctrine of " prudent uninsured owner," 62, and n.
whether want of funds will authorize such sale, 63.
sale must be of necessity, not of expediency, 64.
no distinction between sale on home and foreign shore, 64.
duty of master to communicate with owners before selling, 64.
if necessity existed, owners bound, 65.
IV. Sale under a Decjiee of Admik.vlty, 65-6S.

when valid and binding, 65. i i ■ i f

when the courts of the country wlierc the ship belongs will look behmd a tor

eign decree, 65, 66.
sale of sliip condemned as prize, 65.
on ground of forfeiture, 65.
to pay salvage, 65.

to pay bottomry bond or satisfy lien, 65.
on ground of unseaworthiness, 65, 66.
little known here, 66, 67.
decree of admiralty in rem binding everywhere, 67.
reason of the rule, 67.
notice of sale, 67.
court must have possession of property sold, 67.

constructive possession, 67, 68.
the court must be regularly constituted, 68.

its sufficiency inquirable into, 68. , . .

consixl or party holding a commission in neutral port from his o^vn country

cannot act as judge for such purpose, 6S. , • , ^ o

after wreck and abandonment, sale by foreign court conveys good title, 68.
may be impeached for fraud, 68, n. 4.


Ship, 69-81. ^ *

1 Evidence, agency, and warranty, 69-71.
ship built for particular purpose, implied wanranty of fitness, 69.
the rule of caveat emptor, 69.
material representations, 69.

parol evidence to vary bill of sale, or other written contract, 69, -0, n. 1.
fraud vitiating bill of sale, 70, n. 1 .
sale of sliip " with all her faults ; " disclosure of faults, 69, 70.

in Louisiana, 69.
representation that ship was l)uilt in a certain year, 70, n. 1.

that she was copper-fastened, 70, n. 1.
if certain representations are made and ship sold " with all her faults," 70, n. 1 .
representations as to dimensions and burden, 70, n. 1.
2. Tlie appurtenances of a ship, 71-74. „

what passes by the words "ship," "ship and appurtenances, apparel,

"furniture," 71.
ballast, 71, n. 3.
kentledge, 71, n. 3.
boats, rigging, and stores, 72, n.

752 * INDEX.

SALE OF SHIP — Continued.

fishing-lines, tackle, and stores, 72, n.

provisions; "fishing stores," 72, n.

cable and anchor, 72, n.

nidder and cordage purchased for ship, 72, n.

articles purchased for ship, 72, n.

sails and cordage detached, 72, n.

meaning of tlie word appurtenances, 72, 73, n.

furniture, 73, n.
different meanings when used in statute and in contract of insurance, 73, n.
cai'go not appurtenances, 73, n.
chronometer, whether, 73, n.
ship remains tlie same, however extensively repaired, and although all old

materials replaced by new, 72, and 73, n. 1.
how if taken in pieces and reconstructed, 74, 75.

3. Sale of ship by the builder, 74-78.
builder first owner, 74.

English statutes as to builder's certificates, 74.

builder's certificates, how to be delivered and registered, 78.

when the property passes, if vendee is to pay by instalments, 74, 75, n. 1.

instalments payable at fixed times, 74, 76, n.

with reference to the forwardness of the vessel, 74, 76, n., 77, n.
whose loss, if ship to be paid for by instalments is destroyed while build

ing, 74.
if vendee appoints superintendent to take charge of building, 75 and 76, n.
distinction between sale, and contract to sell, 75, n. 1, 77, n.
conveyance of keel, after it is laid, conveys subsequent additions, 77, n.
agreement to pledge unfinished vessel, 77, n.

whether property passes, cjuestion of construction, and intent, 77, n., 78, n.
if property passes when vessel is unfinished, builder has right to complete and

lien for full price, 75, 78, n.

4. Possession of the purchaser, 78-81.
ship chattel, but peculiar, 78 ; 25.

y possession of ordinary chattel should accompany sale, 78. Seep. 112, and n.
possession of ship may be taken soon as practicable, 78.

whether at sea (^r elsewhere out. of reach, 81, n.
transfer of papers and registry, 78, 79.
purchaser may wait vessel's arrival at home port, 79.

should send notice to master, 79.
sale passes not merely inchoate right, but full property liable to be divested by

laches, 78, 79.
importance of this distinction, 79.
which of two innocent transferrees holds, 79.

why vendee must take possession within reasonable time, 79, n. 1, 112, and n.
conveyance of vessel by deed, 80, n.
actual and symbolical delivery, SO, n.
distinct sales by diff"erent partners ; vendee who first obtains possession

holds, 80 and 81, n.
what notice supersedes necessity of taking possession, 81, n.
possession of part-owner, 81, n.

mortgagor when possession of mortgagee, 81, n.
eff'ect of custom-house registration of change of ownership, 80, 81 ; 40, 41.

INDEX. 753

SALE or SUIF — Continued.
VI. In other Eespects :

how affected by registry law. Sec Registrij and Navlijatlon Laws.

under lien by Indiana statute, 107, n.

seamen entitled to their wages uj) to time of, 460, n.
SALVAGE, sale of ship, to pay, 65.

settled on a general average loss, 310, 311.

upon bottomry Ijond, 422.
SEAL, charter-party under, 231, and n.

master's power to make contract under, 384.

effect of, in admiralty, 447.

and signature, must be distinct and legible to secure official respect, 460, n.
SEAMEN, 441-478.

I. How Seamex ake regarded ey the Courts, 441, 442.

peculiarly in need of, and entitled to, protection of courts, 441 .

reasons therefor, 441.

wai'ds of admiralty, 441, n.

their contracts regarded with rigid scrutiny, 441, n.

and set aside as inequitable, if unjust and unreasonable, 441, n., 446, n.

statutes in behalf of, 441, 442.

prohibition against foreign, in our ships, 441.

applied to subjects and citizens of what countries, 441.

statute seldom regarded, 442.

most important points of statutory provisions for, 442.

fii-st, shipping articles, 442.

second, wages, 442.

third, provisions and substance, 442.

fourth, sea-wortliiness of ship, 442.

fifth, care of seamen in sickness, 442.

sixth, bringing them home, 442.

seventh, regulation of punishment, 442.

eighth, respecting desertion, and discharge either at the beginning or during
the voyage, 442.
II. Of the Shipping Articles, and Wages, 442-452.

every master bound to have, 442.

penalty for each person not signing, 442.

must be signed by every seanum, 442.

must describe accurately voyage, and terms for which seaman shipped, 442.

general coasting and trading voyage v,'itliin the act, 442, n.

extends to lakes and inland navigation, 442, n.

master must produce log-l)Ook and contract when rcipiired, or parol evidence
of them may be given, 442, n.

depositing originals with collector of port, at time of contract, 442, n.

distinct and reasonable notice if seamen want them, 443, n.

in absence of statement of seamen in libel, evidence of what, 443, n.

if owners prove reasonable excuse for not producing, may contradict by parol

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 95 of 99)