629 



SHIPS AND SHIPPING. 



SHIPS AND SHIPPING. 



ISO 



with respect to the liability of mortgagees and charterers. Where there 

 is an actual letting of the whole ship^ and the lessee has the entire 

 control and management of her, the master and mariners being subject 

 to his orders, the lessee becomes for the time invested with the cha- 

 racter of owner. But where by the terms of the contract the master 

 and mariners continue subject to the [owner, and he through them 

 retains the control and management of the ship, the contract is merely 

 for carrying the lessee's goods. 



When, however, the ship is abroad, and the necessary expenses can- 

 not otherwise be defrayed, the master has the same power which the 

 owners or part-owners to the extent of their shares under all circum- 

 stances have, to hypothecate the ship and freight as a security for debts 

 contracted on behalf of the ship. The contract of hypothecation is 

 called a contract of bottomry, by which the ship upon its arrival in 

 port is answerable for the money advanced, with such interest as may 

 have been agreed on. By the terms of the contract the repayment of 

 the money is made to depend upon the accomplishment of the voyage, 

 and, in consideration of the risk, the lender is permitted to charge a 

 high rate of interest. By such hypothecation the creditor acquires a 

 claim on the ship. [BOTTOMRY.] When the claim has been created by 

 the master abroad, it may be enforced by suit in the Admiralty Court ; 

 but if the ship has been hypothecated by the owners at home, the 

 parties can only have recourse to the common law or equity courts. 

 The Admiralty and the equity courts will recognise the interest of the 

 assignee of a bottomry bond, though at common law he cannot sue in 

 his own name. In general the master has been held not to be authorised 

 to raise money on bottomry within any part of the same country where 

 the owners reside, on the ground that it is his duty to communicate with 

 them before entering into such a contract. But where by reason of 

 hostilities communication with the owners was almost impossible, and 

 immediate necessity existed for the money, which could not be pro- 

 cured otherwise than upon bottomry, a master was held to have 

 authority to raise it on those terms. When money is lent on bottomry, 

 the owners are not personally responsible. The credit is given to the 

 master and the ship, and the remedy is against them only. The 

 master cannot hypothecate the ship for a debt of his own, nor can he 

 give a bottomry bond for matters not within the scope of his authority. 

 If the sums secured by the bond are not repaid, an application must be 

 made to the Court of Admiralty, founded on the instrument of con- 

 tract and an affidavit of the facts, upon which a warrant issues to 

 arrest the ship, and the persons interested are cited to appear before 

 the court, which then decides what U to be done. If several bonds 

 have been given at different times, the latest in point of time is 

 entitled to be first satisfied, a rule derived from the civil law. (' Dig.' 

 20, tit. 4, s. 5, 6.) If the necessary amount of money cannot be raised 

 by hypothecating the ship and freight, the master may also sell part of 

 the cargo or pledge it. 



Under those circumstances of unavoidable necessity which would 

 authorise the hypothecation of the ship and freight, the master has 

 authority in case of need to hypothecate the cargo for the purposed of 

 the voyage. He may always in these circumstances sell a part of the 

 cargo. He is never allowed to sell the whole for the professed pur- 

 poses of the adventure, as the adventure is by that very act put an end 

 to ; but in case of damage to the cargo, which threatens the destruc- 

 tion of the whole of it before his arrival at the port of destination, he 

 may justify selling part or even the whole, as the only means of saving 

 something for the advantage of the proprietors. To hypothecate the 

 cargo for the purposes of the cargo and the advantage of the pro- 

 prietors, is within the extent of his powers under proper circumstances, 

 and such a bond executed by the master only is available to the holder 

 by the process of the English Court of Admiralty. To sell the ship is 

 the last conceivable act of a master in circumstances of extreme distress. 

 He will not be justified in doing so, nor can he give the purchaser a 

 good title, if she can be repaired and he has the means and oppor- 

 tunity of doing so, under circumstances in which a judicious man 

 would take that coune. But to justify such an act, and make it a 

 binding transfer of property to another, the distress must be so 

 extreme, under circumstances so destitute of assistance, or so void of 

 all occasion for wishing assistance, that either a faithful man can find 

 no better remedy, or a judicious man can wish no other. 



Limitation of Liability of Ownen. The liability of the owners under 

 certain circumstances is either limited or altogether taken away by the 

 law of this country. 



No owner of any British sea-going ship, or share therein, is liable to 

 any extent whatsoever for loss or damage happening without his fault 

 or privity : 1, of or to any goods, merchandise, or other thing what- 

 soever taken in, or put on board any such ship, by reason of any fire 

 happening on board sugh ship ; 2, of or to any gold, silver, diamonds, 

 watches, jewels, or precious stones, taken in, or put on board any such 

 ship, by reason of any robbery, embezzlement, making away with, or 

 secreting thereof, unless the owner or snipper 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. 



Where all or any of the following events occur without his actual 

 fault or privity ; namely, 1, where any loss of life or personal injury 

 u caused to any person being carried in such ship ; 2, where any damage 

 or low us caused to any goods, merchandise, or other things whatsoever 



ABT8 A>'D SOL DIV. VOL. TIL 



on board any such ship ; 3, where any loss of life or personal injury is 

 by reason of the improper navigation of such sea-going ship caused to 

 any person carried in any other ship or boat; 4, where any loss or 

 damage is by reason of any such improper navigation of such sea- 

 going ship caused to any other ship or boat, or to any goods, mer- 

 chandise, or other things whatsoever, on board any other ship or boat'; 

 no owner of any British sea-going ship or share therein, is answerable 

 in damages to an extent beyond the value of his ship and the freight 

 due, or to grow due, in respect of such ship during the voyage which 

 at the time of the happening of any such events is in prosecution 

 or contracted for, subject, however, to this proviso, namely, that in 

 no case where any such liability is incurred in respect of loss of life 

 or personal injury to any passenger is the value of any ship and the 

 freight thereof to be taken as less than 15J. per registered ton. The 

 benefit of these provisions is not obtainable, even in our courts, by any 

 foreign ship, nor is it available for a British sea-going ship when sued 

 for injury done by her to a foreign vessel, unless at the time of the 

 accident both ships were in British waters. 



2. Tlie Na.riija.tion of Ships. Rules of the Sea. For the government 

 of ships in their course over the sea, convenience and necessity 

 early gave rise to certain accustomed practices which have ultimately 

 resulted in rules that are known as the rules of the sea. Those rules, 

 which are still recognised by all maritime nations, were set forth in a 

 notice published by the Trinity House on the 30th October, 1840, in 

 the following terms : " The recognised rules for sailing-vessels is, that 

 those having the wind fair, shall give way to those on a wind ; that 

 when both are going by the wind, the vessel on the starboard tack 

 shall keep her wind, and the one on the larboard tack bear up, thereby 

 passing each other on the larboard hand ; that when both vessels have 

 the wind large or a-beam, and meet, they shall pass each other in the 

 same way on the larboard hand, to effect which two last mentioned 

 objects, the helm must be put to port." Steam-vessels, for the pur- 

 poses of these rules were regarded as vessels navigating with a fair 

 wind, and were to give way to sailing-vessels on a wind on either tack. 

 With regard to steamers passing each other, it was at that time the 

 rule that each should put her helm to port, and in narrow channels 

 that a steamer should always leave the vessel she is passing on the 

 larboard hand. 



The rules already given are still in force on the high seas among 

 other nations,~and consequently must be observed also by British 

 ships when passing a foreign ship. It seemed good, however, to the 

 British parliament to introduce new rules into the Merchant Shipping 

 Act of 1854, which are now compulsory on all British vessels when 

 passing each other. These rules are the following : 1. " Whenever 

 any ship, whether a steam or sailing ship, proceeding hi one direction, 

 meets another ship, whether a steam or sailing ship, proceeding in 

 another direction, so that if both ships were to continue their respec- 

 tive courses, they would pass so near as to involve any risk of a 

 collision, the helms of both ships shall be put to port, so as to pass on 

 the port side of each other. This rule shall be obeyed by all steam- 

 ships and by all sailing-ships, whether on the port or starboard tack, 

 and whether close-hauled or not ; unless the circumstances of the case 

 are such as to render a departure from the rule necessary in order to 

 avoid immediate danger ; and subject also to the proviso, that due 

 regard shall be had to the dangers of navigation, and as regards sailing- 

 ships on the starboard tack close-hauled, to the keeping such ships 

 under command. 2. Every steam-ship, when navigating any narrow 

 channel, shall, whenever it is safe and practicable, keep to that side 

 of the fair-way or mid-channel, which lies on the starboard side of 

 such steam-ship." 



A code of rules respecting the exhibition of lights on board, and the 

 use of fog signals, has been published by the Admiralty under the 

 authority of the statute. Steamers between sunset and sunrise are to 

 exhibit a bright white light at the foremast head ; a green light on 

 the starboard side, and a red light on the port side, except that when 

 they are proceeding under sails only, the light on the mast is to be 

 dispensed with. Sailing-vessels are to exhibit the red and the green 

 side lights in accordance with the above rule, but no white light on 

 the mast. Pilot vessels are to carry only a white light at the mast- 

 head, and to exhibit a flare-up light every fifteen minutes. Sea-going 

 vessels at anchor in roadsteads or fair-ways, must exhibit, on a con- 

 spicuous part, not more than 20 feet from the hull, a white light in an 

 eight-inch globular lantern. As fog signals, sailing-vessels when under 

 way, are in all cases of fog required to use, when on the starboard 

 tack, a fog-horn, and, when on the port tack, to ring a bell, sounding 

 the one or the other respectively, once at least every five minutes; and 

 steamers when under way and their steam up, are to use a steam- 

 whistle before the funnel, sounding it once at least every five minutes ; 

 but when their steam is not up they are to use a fog-horn or bell, as in 

 the case of sailing-vessels. 



CoUisumi, Notwithstanding these rules for the guidance and pro- 

 tection of ships in their progress at sea, aud in the fair-ways of mari- 

 time traffic, collisions do occur, and questions of fact, difficult to 

 determine, arise as to the existence of negligeuce in either vessel or in 

 both. It would bo quite impossible here to enter upon a detail of 

 cases illustrative of this part of the law. Those who are desirous of 

 considering the subject when exhibited in the occurrences of maritime 

 life must consult those works, the titles of some of which we have 



