637 



SHIPS AjSTD SHIPPING. 



SHIPS AND SHIPPING. 



538 



sengers as well as over the crew. A passenger may quit the ship, but 

 while he remains on board he is bound in case of necessity to do work 

 that is required for the service of the ship and to fight in her defence. 

 If he thwart the master in the exercise of his authority or otherwise 

 misconduct himself, he may lawfully be put under restraint or impri- 

 soned. If the conduct of a passenger be unbecoming, or if he threaten 

 the master with personal violence, he may be excluded from those 

 parts of the ship which are frequented by the superior passengers, 

 although he has paid such a fare as entitles him to be admitted there. 

 If a passenger feels himself aggrieved by the manner in which he has 

 been treated, he may bring an action against the master, and it will be 

 for the jury, tinder the direction of the judge, to say whether he has 

 any ground for complaint. In addition to this general right of action, 

 a general statute (18 & 19 Viet. c. 119) has been passed to regulate the 

 conveyance of passengers from places in the United Kingdom to 

 places out of Europe, and [not within the Straits of Gibraltar. It 

 regulates the proportion of passengers carried to the tonnage of the 

 ship, provides security for the sea-worthiness, cleanliness, outfit, and 

 proper storing of the ship, for the presence of a surgeon and medicines, 

 for the delivery of a list of passengers to the collector of customs at 

 the port of departure, and attaches penalties to a violation of the 

 regulations which it contains. It also subjects the master to a penalty 

 in case of his improperly landing passengers at any place not con- 

 tracted for, 'or wilfully delaying to sail, and provides for the mainte- 

 nance of the steerage passengers for 48 hours after their arrival at the 

 destined port. The agreement with the passengers must be in 

 writulg, and have a scale of provisions attached. Prepayment of the 

 fare by a steerage passenger within the statute is imperative. If a 

 passenger fails to pay his fare, the master or owners have a lien on his 

 luggage for the amount. Nothing is due for the conveyance of an infant 

 born during the voyage. Where there is a contract for the convey- 

 ance of men or animals, freight is not due for those which die before 

 the completion of the voyage, unless there be in effect a stipulation 

 that freight is to be paid for the lading of them. The statute provides 

 for the forwarding of all passengers found at any place short of their 

 port of destination, and as this is done at the expense of the owners 

 of the ship that should have conveyed them, all who accept of this 

 kind of assistance forego 'their right of action against them. 



Dutia under Contract of Affreightment. It is the duty of those who 

 have contracted to convey, to do everything and be provided with 

 everything necessary for the safe and expeditious accomplishment of 

 the voyage ; and if, through their failure to perform these duties, any 

 damage results to the merchant, they will be answerable for it. At 

 the commencement of the voyage the ship must be sea-worthy, tight, 

 staunch, and sufficient, and properly equipped with all necessary 

 tackle. He who lets the ship is not excused by his ignorance of any 

 deficiency in these respects. The ship must also be provided with a 

 master and crew competent to command and work her, and to guard 

 the cargo on board, and also with a pilot when necessary either from 

 circumstances or from the law of the country. [PiLOT.] 



It is the duty of the master, unless in case of any usage which 

 relieves him from such duty, to provide things necessary for the 

 lading of the vessel, and to stow away the goods so that they do not 

 injure each other or suffer from the motion or leakage of the ship. 

 The master must procure and keep all documents, papers, clearances, 

 Ac. required by the authorities in respect of the ship and cargo ; and 

 he must abstain from taking or keeping on board contraband goods or 

 false papers. He must wait during the time appointed for loading the 

 vessel, and, if required, also during that appointed for demurrage. He 

 must pay the charges and duties to which the ship is subject. The 

 statutes 16 * 17 Viet. c. 107; 23 Viet. c. 22; 23 & 24 Viet. c. 110, 

 contain the enactments relative to what is necessary to be done in 

 respect of the custom-house regulations by ships carrying goods from 

 the United Kingdom beyond seas. When all things are prepared, the 

 voyage must be commenced as soon as the weather is favourable. If 

 the ship is to sail under convoy, she must sail first to the rendezvous 

 assigned. Convoy means such ships of war as, in time of war, are 

 appointed by the proper authorities to take charge of trading ships 

 during their voyage to their respective destinations. Before sailing it 

 is the duty of the master to obtain all the sailing orders and other 

 necenary instructions which are issued by the commander of the 

 convoy ; and during the voyage to obey these and any others which 

 may afterwards be issued, and to keep company with the convoy. 

 Curing the time of war it is often rendered imperative upon merchant 

 ships, by acts passed for that purpose, not to sail without the pro- 

 tection of convoy. After the commencement of the voyage, the master 

 is bound, without delays, deviations, or stoppages, to sail direct to the 

 port of destination. But stress of weather, the appearance of enemies 

 or pirates, or the presence of any urgent necessity, will justify him in 

 breaking through this rule ; and he ought to do so for the purpose 

 of succouring another ship which he finds in imminent peril or 

 distress. 



If the ship is lost or the goods injured during a deviation without 

 any of these grounds of justification, the owner and master will be 

 answerable for the loss to the merchant, even if it does not appear to 

 have been a necessary consequence of the deviation. If the ship during 

 the voyage is so damaged that she is unable to proceed without 

 repairs, the master may detain the cargo, if not of a perishable cha- 



racter, till the repairs are made. If the cargo is of a perishable 

 kind, he ought to transship for the port of destination, or sell it where 

 she lies if there be no opportunity of transshipment, or that course 

 appear to be obviously injudicious. He may in all cases, where the 

 circumstances require it, exercise a discretion as to transshipping the 

 cargo ; as, for instance, when the ship is wrecked or in imminent 

 danger. 



Hypothecation of a cargo, like hypothecation of a ship, is " a pledge 

 without immediate change of possession." The party to whom the 

 goods are hypothecated immediately acquires a right to have possession 

 of them if the money advanced is not paid at the time agreed on. This 

 power of the master under circumstances of urgent necessity to sell 

 or hypothecate the goods must be exercised with great circum- 

 spection ; and the exercise of it can only be justified when it is con- 

 sistent with what would have been the conduct o a discreet and 

 able man under the circumstances. During the voyage the master is 

 bound to take every possible care of the cargo, and to do all things 

 necessary for its preservation, and he and the owners will be answer- 

 able for all damage which might have been avoided by the exercise of 

 skill, attention, and forethought. When the voyage is completed, the 

 master must see that the ship is properly moored, and all things done 

 relative to her which are required by the law or usages of the country. 

 The statutes 16 & 17 Viet. c. 107 ; 23 Viet. c. 22; 23 & 24 Viet. c. 

 110, contain the regulations relative to customs to which it is necessary 

 to conform in this country. Upon payment of freight and the pro- 

 duction of bills of lading, the cargo must be without delay delivered 

 to the parties entitled to receive it. If the freight due on any goods 

 is not ready to be paid, the master may detain the goods or any part 

 of them. 



When the master is compelled, by an act of parliament, to land the 

 goods at any particular wharf, he does not thereby part with the 

 possession of the goods, and consequently does not lose whatever right 

 he may have to detain them. If goods are sold by the custom-house 

 officers before the freight is paid, the master is entitled to receive the 

 first proceeds of the sale in discharge of the freight. In foreign 

 countries, where any accidents have occurred to frustrate or interfere 

 with the objects of the voyage, or any one of the parties to the con- 

 tract feels himself aggrieved by the conduct of any otheV, it is 

 customary to draw up a narrative of the circumstances before a public 

 notary. This narrative is called a protest, and in foreign courts is 

 admissible in evidence generally ; but in our courts it is not admissible, 

 except as evidence against those who made it. 



Non-performance. Certain circumstances operate as an excuse to the 

 master and owners for non-fulfilment of their contract. " The act of 

 God " is understood to mean those accidents over which man has no 

 control, such as " lightning, earthquake, and tempest." The " perils of 

 the sea," interpreted strictly, apply only to the dangers caused merely 

 by the elements, but these words have received a wider application, 

 and in litigated cases the jury, after hearing evidence as to the' usage 

 which prevails among merchants, will determine what interpretation 

 has been intended to be given to them. In the exercise of this dis- 

 cretion, juries have determined that the taking of ships by pirates is a 

 consequence of the perils of the sea ; and the verdict has been the 

 same where the loss was caused by collision of two ships without any 

 fault being attributable to those who navigated either of them ; and 

 also where the accident was caused wholly by the fault of those on 

 board another ship. But all cases in which the loss happens by 

 natural causes are not to be considered as arising from the perils of 

 the sea. If the ship is placed in a dangerous situation by the careless- 

 ness or unskilfulness of the master, and is in consequence lost, this is 

 not a loss from the perils of the sea, although the violence of the" 

 elements may have been the immediate cause of it. If a ship is reason- 

 ably sufficient for the purposes of the voyage, the master will not be 

 liable for a loss arising from the perils of the sea, because a ship might 

 have been built strong enough to resist them. The "restraint of 

 princes and rulers " is understood to mean a really existing restraint, 

 not one which is anticipated, however reasonably or honestly. 



The merchant must use the ship only for lawful purposes, and not 

 do anything for which it may be forfeited or detained, or the owners 

 made liable for penalties. In case of any violation of the agreement, 

 by employment of the ship for purposes other than those contem- 

 plated, or failure to perform the terms as to lading, &c., the amount 

 of compensation, in case of dispute, is determined, as the circumstances 

 of the case may require, by a jury. The words primage and average, 

 which appear in the bill of lading, mean, the first, a small sum paid to 

 the master; the second, as there used, certain charges, varying accord- 

 ing to the usage of different places, for towing, beaconage, &c. 



Freight. When an agreement for conveyance is expressed in the 

 general form, or when there is no actual agreement, but only one 

 implied by law from the circumstances of the case, there results from 

 it a duty upon the master and owners, first to deliver the goods at the 

 place of destination, whether the ship is hired by the voyage or by the 

 month. It is only by the entire performance of this duty that they 

 can entitle themselves to the payment of freight. The parties may, 

 however, so express the contract that the payment of all or part of 

 the freight may be due before or during the course of the voyage ; 

 in such case the word freight is used in a sense which does not 

 properly belong to it ; for in, strict usage it means only money earned 



