Chapter XXIII: Appendix: I (1)

SUMMARY OF NAVIGATION LAWS OF THE UNITED STATES

JASPER YEATES BRINTON[33]

I. SHIP REGISTRY 228
General 228
Registry and Nationality 228
Registry and the Flag 229
Registry and Ownership 229
Vessels Entitled to American Registry 229
Forms of Register, Enrollment and License 231
Restrictions as to Coastwise Trade 231
Procedure for Documenting Vessels 232
1. Presentation of Carpenter's Certificate 232
2. Surveyor's Certificate of Measurement 232
3. Securing and Marking of Official Number 233
4. Marking of Official Tonnage 233
5. Marking of Name and Home Port 233
6. Evidence that Number, Tonnage, Name and Home
Port are Properly Marked 234
7. Owner's Oath 234
8. Master's Oath 235
9. Special Oath by a Corporation 235
10. Evidence of Outstanding Certificate of Inspection 235
Bill of Sale Not Required on Original Documentation 236
Surrender and Reissue of Documents 236

II. RECORDING OF BILLS OF SALE 237

III. PREFERRED MORTGAGES UNDER MERCHANT MARINE ACT 238

IV. CHANGE OF NAME 240

V. ENTRY AND CLEARANCE 241

VI. SHIPPING ARTICLES 242

VII. LICENSING AND QUALIFICATIONS OF OFFICERS 244

VIII. QUALIFICATIONS OF SEAMEN 245
Age 246
Service and Physical Qualification 246
Lifeboat Men 246
Language 246

IX. NATIONALITY OF OFFICERS AND CREW 246
Officers 246
Crew 247

X. WAGES 247
Advances 247

XI. WATCH AND WATCH AND WORK-DAY 248

XII. PROVISIONS FOR CREW 249
Sleeping Quarters 249
Washing Places 249
Provisions Scale 249
Hospital Accommodations 250
Warm Room and Woolen Clothing 250

XIII. PERSONAL INJURIES TO SEAMEN AND RECOVERIES FOR DEATH 250

XIV. OFFENSES BY SEAMEN 251
Mutiny, Desertion and Disobedience 251
Miscellaneous Offenses 252
Assistance in Case of Collision 252

XV. RULES OF THE ROAD 253

XVI. PILOTAGE 253

XVII. LENGTH OF HAWSERS 254

XVIII. INSPECTION OF STEAM VESSELS 255
Barges 255
The Certificate of Inspection 255
Manning of Inspected Vessels 256

XIX. REGISTER TONNAGE 256

XX. TONNAGE TAXES 257

XXI. NAVIGATION FEES 258

XXII. ANNUAL LIST OF MERCHANT VESSELS 258

XXIII. NUMBERING OF UNDOCUMENTED MOTOR BOATS 258

XXIV. ADMINISTRATION OF NAVIGATION LAWS 259
Commissioner of Navigation 259
Steamboat Inspection Service 259
Shipping Commissioners 260

XXV. THE SHIPPING BOARD 260

SUMMARY OF THE NAVIGATION LAWS OF THE UNITED STATES

While the navigation laws of the United States are in many respects the most advanced and progressive of any in the world, the form in which they exist is far from satisfactory and is a serious handicap on their usefulness. They are voluminous and complicated and in much confusion. Even on comparatively simple topics it is often impossible to distinguish the law of to-day from the law of yesterday.

The reason is not hard to find. It lies in the fact that these laws represent one of the oldest bodies of statute law in the books, and for well over a century have been subject to a steady piecemeal amendment, but with little or no attempt at revision or codification. The result is that on almost every subject there is a bewildering overgrowth of laws--law after law covering and partly modifying, but seldom explicitly repealing, the older law, which thus remains as a stumbling block to even the expert reader.

A complete revision is urgently needed and has been undertaken by the Shipping Board. In the meantime, it is of course desirable that knowledge of the laws as they exist shall be made as conveniently accessible as possible and the summary herewith is presented as a contribution towards that end. It does not pretend to be either complete or exhaustive, but merely undertakes to cover very generally the principal topics, with a somewhat more extended reference to the practical aspects of ship registry as embodied not only in the laws but in the regulations and practices which have grown up around them.

Most of the statutes which have been summarized herein except the recent Merchant Marine Act (Jones Bill) and other laws of this year will be found in the 600 page compilation of the Navigation Laws (1919) prepared with the thoroughness and accuracy to be looked for from any work issued under the direction of the present Commissioner of Navigation. It may be procured from the Superintendent of Documents, Washington, at the cost of one dollar. Subject to the obvious limitations on any compilation which must necessarily include a large body of conflicting and practically obsolete statutes, the work is in every respect admirable. The volume, however, is confined to statute law, and for much of the practical information covering those branches of operation of ships involving the agency of the customs service, including the documentation of vessels, reference must be had to the Customs Regulations, the last edition of which was published under date of 1915, and which may also be secured from the Superintendent of Documents.

In addition to these two principal compilations reference should also be made to the series of Rules and Regulations of the Board of Supervising Inspectors, issued by the Steamboat Inspection Service, Department of Commerce, to the various publications of the Department covering the Rules of the Road, the International Rules, the Inland Rules, and the Pilot Rules, respectively, together with the notable series of pamphlets issued by the Department from time to time, covering such special subjects as the Measurement of Vessels, the Comparative Study of Navigation Laws of the Maritime Nations, and other similar topics. So far as the writer is aware, however, there is no volume which contains any general summary of the whole body of our navigation laws.

I. SHIP REGISTRY

=General.=--Under the power to regulate commerce Congress, among its earliest enactments, adopted a system of ship registry for American-owned bottoms and created the class of vessels to be known as "vessels of the United States." The purpose of establishing this system was the double one of encouraging domestic commerce and of building up our national defense. It did not require and (with certain war-time exceptions) has never required that American-owned ships should be registered, but by imposing prohibitory penalties on foreign trade in American-owned vessels which are _not_ registered, and by closing the coasting trade entirely to all except American-owned vessels (or vessels operating during war time under special permission of the Shipping Board) it made the securing of appropriate documents--a register--an enrollment and license--or a simple license, as the case may be,--a practical necessity for American-owned vessels engaged in American trade. In passing it is to be noted that while a ship's registry is a special document, distinguished from the enrollments and licenses of smaller vessels, the word _registry_ is commonly used as covering generally all three classes of documentation.

=Registry and Nationality.=--While vessels, like citizens, are commonly said to have a nationality, their _nationality_ is not necessarily a matter of _registry_. Nationality means rather--To what country does the ship in fact belong and to whose protection is she entitled? As far as the United States is concerned this nationality--this right to protection--depends upon _ownership_.

Therefore, if a ship is actually owned by American citizens, her nationality is American, and she is entitled to the protection accorded to American property all the world over, regardless of the fact that for any reason she may not be entitled to, or may not desire to take, American registry.

=Registry and the Flag.=--In the same way, the right to fly the American flag is not dependent upon American registry, but upon American ownership. The flag is only the symbol of nationality and of a right to protection. It is the signal to other vessels at sea--conveying information as to nationality, just as her other signals are used to convey the name of the private owner or of the line to which she belongs. It follows that the American flag may be flown upon any vessel owned by American citizens. For many years vessels of this character flying the American flag have been familiar in the trade in the Far and Near East.

The rule as to the use of a flag is somewhat different and more strict in England. Under the Merchant Shipping Acts the use of a British flag on board a ship owned either in whole or in part by persons not lawfully qualified to own a British ship, subjects the vessel to forfeiture. But there are no such provisions in the law of the United States and questions as to the improper use of the flag of this country upon vessels have not arisen, although occasional diplomatic negotiations have been undertaken to prevent the use of the American flag in foreign countries. Generally speaking it may be said that the United States has been extremely lax in regulating the use of her flag.

=Registry and Ownership.=--Just as registry is not necessary to give nationality, with its corresponding right to protection, so it is true that the transfer of title to ships is not dependent upon its registry laws. While title to a ship must be passed by bill of sale, this does not depend upon any requirement of the United States law, but arises out of the general maritime law. It is only in the case of ships that are to be registered or enrolled that it is necessary that the transfer be made according to the particular and very specific form prescribed by the registry acts.

=Vessels Entitled to American Registry.=--Under the early ship registry acts, and for a period of over 120 years, American registry was confined to American-built ships. Such alone were "deemed vessels of the United States, and entitled to the benefits and privileges appertaining to such vessels." As already noted, these privileges were, in effect, the right to engage in American trade.

In 1892, a special act was passed granting American registry to certain foreign-built vessels of the American Line under conditions as to the building of other vessels, but this was a special and very limited proviso.

The Panama Canal Act of 1912, however, made a radical change in our policy and opened American registry to foreign-built vessels not over five years old, owned by American citizens, although denying to these vessels the privilege of entering the coasting trade.

The Ship Registry Act of 1914 went a step farther and removed the limitation as to age, and also authorized the President to suspend, as to these vessels, the rigorous provision that the watch officers of all vessels engaged in foreign trade should be citizens of the United States. This authority was exercised by the President and many such vessels have been registered.

In 1915 a law was passed to facilitate the transfer of American-owned vessels from foreign to domestic registry by a repeal of the prohibitory duties on such vessels on condition that before leaving an American port they should secure the necessary documentation.

The Shipping Act of 1916, as amended in 1918, and again by the Merchant Marine Act of 1920, further enlarged the scope of the registry laws by providing that vessels (whatever their previous history) purchased, chartered or leased from the Board by citizens of the United States may be registered, or enrolled and licensed, or both enrolled and licensed, as vessels of the United States and entitled to the benefits and privileges of such documentation.

The various classes of vessels now entitled to registry under these laws may be thus divided:

(1) American-built vessels which have always been American-owned;

(2) American-built vessels formerly owned by foreign owners, but subsequently purchased by American citizens;

(3) Vessels captured in war lawfully condemned and owned by citizens;

(4) Vessels forfeited for breach of the laws;

(5) American-built vessels sold by the government to citizens, and foreign-built vessels bought or chartered by the government and sold to citizens;

(6) Vessels whose documentation is authorized by special act;

(7) Wrecked vessels purchased by citizens and repaired in American shipyards on proof that the repairs are equal to three times the appraised salved value; this is a special permission which is a dead letter except as to the coastwise trade, as wrecks can now be admitted to registry for foreign trade regardless of the amount of repairs;

(8) Vessels for foreign trade wherever built, wholly owned by citizens of the United States;

(9) Vessels purchased, chartered or leased from the Shipping Board by citizens of the United States.

Barges, lighters and other boats provided with sails or internal motive power, if falling within these classifications, are entitled to documents, as also barges and boats without sails or internal motive power engaged in the Canadian trade or employed upon the marine waters of the United States or engaged in the carriage of passengers.

The following classes of vessels are not within the provisions of the registry laws and therefore require no documents:

(1) Boats or lighters not masted, or if masted and not decked, employed in the harbor of any town or city and not carrying passengers.

(2) Barges or canal boats or boats without sails or internal motive power employed wholly upon canals or on the internal waters of the state and not engaged in trade with contiguous foreign territory and in carrying passengers;

(3) Barges or boats without sail or motive power, plying on inland rivers or lakes of the United States, also not engaged in trade with contiguous foreign territory and in carrying passengers;

(4) Vessels plying waters wholly within the limits of the state having no outlet into a river or lake on which commerce with foreign nations or among the states can be carried on.

=Forms of Register, Enrollment and License.=--The Law provides for three classes of documents; (1) A Register; (2) An Enrollment and License; (3) A License.

Originally the license, which is applicable only in the coasting trade, was an altogether separate document from the enrollment, the form of each document being provided by statute. In 1906, however, the two documents were consolidated into one, so far as enrolled vessels were concerned, leaving the license only to be required in the case of smaller vessels. As the law now stands these documents are distinguished as follows:--

_Registry_ is _required_, for vessels engaged in the foreign trade and in the trade with our insular possessions, except Hawaii and Porto Rico, and is _permitted_ to vessels engaged in the domestic trade under certain requirements as to entry at the Custom House when laden with certain commodities, etc. There is but a single form of register.

_Enrollment of License_ is _required_ for vessels of twenty tons or over when engaging in the coasting trade. Separate forms are issued for the coasting trade or fisheries, and for yachts.

_License_ alone is _required_ for vessels between five and twenty tons when likewise engaged in the coasting and fishing trade.

Vessels of less than five tons may not be licensed, nor may pleasure vessels of less than sixteen tons be documented except under special instructions from the Department of Commerce.

In general form and purpose these documents closely resemble each other and further consolidation and simplification is badly needed.

=Restrictions as to Coastwise Trade.=--From 1817 until the recent war the coastwise trade of the United States was limited to vessels of the United States. This restriction, however, was removed by the shipping Act of 1916. Under this act (§ 9) the Shipping Board was authorized generally (with certain very limited exceptions) to purchase, lease and charter vessels suitable for its purposes, regardless of whether foreign-built or not, and also to sell and charter the same to citizens of the United States, such vessels being entitled to American registry. As to all such vessels the Act specifically provided that they should be permitted to engage in the _coastwise_ trade. This privilege was also extended to vessels owned, chartered or leased by the Emergency Fleet Corporation (see § XXV, below).

In addition, under an act passed in 1917, the Shipping Board was given authority in its discretion to permit vessels of _foreign registry_, and foreign-built vessels which had been admitted to American registry under the Act of 1914, already referred to, to engage in coastwise trade during the war, and for three months thereafter.

This latter act has been in terms repealed by the Merchant Marine Act of 1920, but with the proviso (§ 22) that all foreign-built vessels admitted to American registry, which were owned on February 1, 1920, by citizens of the United States, and all foreign-built vessels owned by the United States on the date of the signing of the Act (June 5, 1920), when sold and owned by citizens of the United States, may engage in the coastwise trade so long as they continue in such ownership.

The general policy above outlined is supplemented by a further proviso of the Merchant Marine Act (§ 27) forbidding the transportation of merchandise between points in the United States, or such of its possessions as are subject to the operation of the coastwise laws, in any other than documented vessels of the United States, owned by citizens of the United States, except in the case of the vessels to whom the privilege has been extended by the provisions above referred to.

=Procedure for Documenting Vessels.=--Marine documents are issued by the Collectors of Customs for the various collection districts, one district frequently including several ports. The District of Philadelphia, for instance, includes Camden, Gloucester City, Chester, Somers Point, Tuckerton, Thompson's Point, Wilmington and Lewes.

Practically each step in the process of securing the ship's papers is marked by the production or issuance of one or other of a number of important documents. These steps are as follows:

_1. Presentation of Carpenter's Certificate._--The Carpenter's Certificate, sometimes referred to as the Master Carpenter's Certificate or Builder's Certificate, is the starting point of the vessel's official status in the eyes of the government, and is the first document to be produced before the Collector. It is the vessel's birth certificate, and is required in order to fix the origin of the vessel, to secure and place on record the best evidence as to the date and place of its building, the name of its builder, and its general description, given under the oath of the builder. For the purpose of this certificate the time of building is the time of completion; the place of building is that where the hull was built. Both of these facts must appear on all marine documents. The Carpenter's Certificate is not a document of title and does not of itself vest any interest in the person holding it. It is sufficient to authorize the vessel to be removed from the district where she has been built to another district in the same or an adjoining State where its owner resides, provided it be in ballast only. This document is filed of permanent record in the Custom House where the vessel receives her papers. The difficulties frequently encountered in the way of securing the certificate of the builder himself have led to the adoption of a regulation permitting other competent evidence establishing the same facts, subject to the approval of the Commissioner of Navigation.

_2. Surveyor's Certificate of Measurement._--The measurement of the boat contained in the Carpenter's Certificate not having been made by a government officer, is not an official measurement. It is therefore specifically required that there shall be produced a certificate of such an official measurement made, prior to every registry, by the Surveyor of Customs or by some person appointed by him, at the port where the vessel is, or if there be no such officer, by some one appointed by the Collector. The Surveyor is the "outside man" in the Custom House administration, the official who superintends and directs the inspectors and weighers, who visits all vessels as they arrive in port each day, and who incidentally is charged with this particular duty of measuring vessels for register. His certificate of measurement is required to show not only the measurement of the vessel, i.e., length, breadth, depth, etc., but her build, her tonnage, number of decks and masts. It is also required to state that the vessel's name and the place to which she belongs are painted on her stern. Once measured, it is not necessary that the vessel shall be measured again upon each successive register. Like all the other documents incident to the registration of the vessel, the form of this document is provided by the government and must be countersigned by an owner, or by the master, or by the owner's agent.

_3. Securing and Marking of Official Number._--The Secretary of Commerce has been authorized to provide a system of numbering all documented vessels. An application for such number must be made through the Collector of Customs by the master or owner. Each vessel so numbered must have her number "deeply carved or otherwise permanently marked on her mainbeam," preceded by the abbreviation "No."

Prior to 1866 the penalty for the violation of this requirement was the severe one of forfeiting her status as a vessel of the United States. To-day the penalty is a fine of $30 upon every arrival of the vessel in a port.

_4. Marking of Official Tonnage._--The law also requires that the net tonnage of a vessel shall be deeply carved or otherwise permanently marked on her mainbeam. This tonnage--representing the entire cubic contents of the interior of the vessel, excluding the spaces occupied by the crew and the propelling machinery, and known as the "registry tonnage" or "register tonnage"--is defined by elaborate provisions of a law passed in 1864, which has been several times amended. It is fixed in the first instance by the surveyor or other officer measuring the boat.

_5. Marking of Name and Home Port._--The law requires that the name of the vessel shall be marked upon each bow and upon the stern, and that the home port shall also be marked upon the stern. These names may be painted or gilded, or they may consist of cast or carved Roman letters in a dark color on a light ground, or in a light color on a dark ground, secure in place, distinctly visible, and not less in size than four inches. Originally the names of vessels were required to be in white on a black ground. In 1875 yellow and gilt letters were permitted. The rule as we now have it dates from 1891. The penalty for violation of this law is $10 for each name which is omitted.

In addition to this, every steam vessel of the United States is required to have her name conspicuously placed in distinct, plain letters not less than six inches high, on each outer side of the pilot house, and in case the vessel is a side-wheeler, then also upon the outer side of each wheel-house. "Double-enders" may place the names on the parts corresponding to the bow and stern; and on vessels whose sterns do not allow sufficient space for lettering, the letters may be placed on adjacent parts so as to conform as closely as possible to the requirements, and provided always that the home port shall be marked at _one_ end of the vessel.

Scows, barges and other vessels with square bows may be marked on the bow instead of the side, where such marking would be speedily worn out by chafing against other vessels.

The "home port" as required to be marked on the stern of the vessel, may mean either the _port_ where the vessel is documented, _or_ the place in the _same_ district where the vessel was _built_, _or_ where one or more of the _owners reside_. From this it follows that the home port need not be the port of documentation, for, as already noted, the law is that the vessel must be _registered_ in the district which includes the port to which the vessel at that time _belongs_, such port being defined by law as that at or nearest to which the owner, or if there be more than one, the managing owner of the vessel, usually resides.

Questions as to what is a vessel's "home port" frequently arise in connection with contracts for repairs and supplies and liens arising from the same. As will be seen the port of registry and the home port may often be quite different places.

_6. Evidence that Number, Tonnage, Name and Home Port are Properly Marked._--The Surveyor's Certificate under the form now in use should have covered all of these various points. However, if for any reason they have not been so covered, as for instance, if the vessel is out of the district in which she is being documented, the law requires that evidence be produced by the owner that all these requirements have been complied with. Thus, if the vessel is elsewhere, the owner may make an affidavit that the necessary has been done, but as soon as the vessel arrives within the vessel's home district, where the inspection certificate of a customs officer can be secured, such a certificate must be produced.

_7. Owner's Oath._--Before a vessel can be documented, the owner, or an officer or agent of the owner, whether individual or corporate, must make an affidavit disclosing the general facts as to the ownership of the boat, giving the names of its various owners, their proportions of ownership, and the citizenship of each of them, etc. It must also include a statement as to the name and tonnage of the vessel, and the place and nature of her construction. This oath is an absolute requirement, and if the vessel is documented without it, the document is void, and the vessel is not entitled to be considered a vessel of the United States.

It is also required that the owner's affidavit shall name the master of the vessel together with a statement that the master is a citizen, with a note of the means whereby he acquired his citizenship. The person thus named by the owner is thereby deemed her master for all legal purposes, regardless of the question of his competency, or as to who actually commands the vessel, but no name of a master who has not the necessary license to command a vessel of the class in question will be accepted by the Collector. Thus, while in the case of a _barge_ any citizen may be _named_ as the master, or one citizen may be named as master for any number of barges, in case of a tug or larger vessel requiring a licensed master, the person named as master must be licensed and qualified to perform this duty. This, however, is entirely irrespective of whether he has in fact assumed or does in fact assume actual command over the vessel. For such purposes the command may be a nominal one.

The importance of this document is illustrated by the fact that the penalty for a statement knowingly false is a forfeiture of the vessel, or of its value, to be recovered from the person by whom the oath was made.

_8. Master's Oath._--In addition to the oath of the owner as to the name and qualification of the master, it is specifically required that if the master is within the district where the registry is made at the time of application for it, an oath must be taken by _him_, instead of by the owner, covering his citizenship. In the case of a false oath by the master the vessel is not forfeited, but the master is liable to a penalty of $1,000. Every change of master must be reported at the first port and indorsed on the document.

_9. Special Oath by a Corporation._--Under recent legislation a special oath is required in the case of corporations, covering any question of a possible foreign interest in the corporation. This oath must set forth "that the controlling interest in the said company free from any alien trust or fiduciary obligation, or any understanding that it may be exercised directly or indirectly on behalf of any alien, is owned by citizens of the United States, and that the President and Managing Directors are citizens of the United States and that the corporation is organized under the laws of some particular State".

_10. Evidence of Outstanding Certificate of Inspection._--It is specifically forbidden to issue a ship's document on any vessel subject to the inspection laws until a copy of the certificate of inspection as issued by the Local Inspectors, has been filed with the Collector of Customs. If the original certificate is not available, a certified copy can always be secured from the office of the proper Collector of Customs.

=Bill of Sale Not Required on Original Documentation.=--The foregoing completes the steps or documents necessary for the original registration of a vessel.

It will be observed that no reference has been made to a bill of sale. This is because no such bill is required by law to be produced at the first registration. In fact the only bill of sale recognized by statute is a bill which _itself_ contains a copy of the ship's document, and therefore such a bill could not be produced before the registration had actually taken place. All that is required in the first instance, therefore, is the Carpenter's Certificate with the affidavits as to ownership, etc. These documents are taken as establishing the ownership, and laying the foundation for registry in a particular name. However, the bill of sale may be actually in existence, having been given either by the builder himself or by some one who had subsequently acquired title to the vessel before her documentation. In such case the bill of sale should be produced to complete the chain of title, and will be retained at the Custom House with the Carpenter's Certificate as a link in the chain. But it will not be recorded, for the law makes no provision for the recording of bills of sale except in the sense of transfers of documented vessels, as hereafter referred to.

=Surrender and Reissue of Documents.=--The foregoing summarizes the steps to be followed in the case of an _original_ registration. But on every change in the status of the vessel a new registry must be secured, and the vessel must be documented anew. This is the case where a vessel is _sold_ in whole or in part to a citizen of the United States, or where it is _altered_ in whole or in part, by being rebuilt or lengthened or built upon, or is changed from one classification or denomination to another, by alteration in its mode or method of rigging or fitting. It also applies to the case of a change of name as hereafter referred to, and, in case of corporations, to the death of the officer in whose name vessel is documented.

It should be borne in mind that the penalty for failure to effect such a new registration is the severe one that the vessel shall cease to be considered a vessel of the United States. No time limit for the accruing of this penalty, however, has been fixed by law.

In case of such new registration the process is the same as above outlined, but omitting the earlier steps relative to the measurement and marking of vessel, official number, etc., all of which are certified to by the previous document.

In the case of the _sale_ of the vessel, it is of course the bill of sale that furnishes the foundation for the transaction, which must be accompanied by the owner's and master's oaths as already outlined.

The bill of sale, as the all-important and indispensable document, must be made to comply strictly with the requirements covering registry, the most important of which is that it will recite at length the last previous certificate issued to the vessel. This proviso is of great importance in England. The inaccurate recital of such a certificate voids the sale entirely. In the United States the penalty is not so severe, but still severe enough, as the ship is deprived of her American character.

The bill of sale when produced is recorded in the office of the Collector of Customs in accordance with the law hereinafter referred to, and is returned to the owner producing it, as in the case of any other bill of sale which the owner may desire to have recorded.

It frequently happens that it becomes necessary to secure new documents for a vessel which is distant from the port where her new owners reside, and where it is desired that she shall be documented. In such case it is often impractical at the time to secure the outstanding papers for surrender. The practice is to secure certified copies of the same either from the office of the Collector where they were issued or from the office of the Commissioner of Navigation at Washington, giving the necessary oath for the production of the original documents when they come to hand.

It also frequently happens that the certified copies, or indeed sometimes the original documents themselves, do not bear upon their face, as they should, a notation as to the date of expiration of the certificate of inspection of the vessel. In this case some evidence of an outstanding inspection must be produced to the Collector. The simplest plan is to secure, by wire if necessary, a statement from the appropriate Collector of Customs that such an inspection is outstanding.

The law is very strict on the surrender of the old documents upon the issuing of new ones, as also in those cases where a ship loses her right to continue as a vessel of the United States. The old law, passed in 1792, provided for the giving of a bond by the ship's husband or the acting or managing owner, varying in amount according to the tonnage of the boat from $400 to $2,000, guaranteeing that the registry should be used only for the vessel for which it was granted, and should not be sold, lent or otherwise disposed of, and that in case the vessel were lost or taken by an enemy or otherwise prevented from returning to the port, the certificate, if preserved, should be delivered up within eight days of her return to port, etc. The present law substitutes for this bond a penalty of $500 and declares the Certificate of Registry to be void after a violation of any of the requirements as to its surrender.

It frequently happens that a document is lost or wrongfully withheld from the possession of the owner. In this case, upon the oath of the master or other person having charge of the vessel, a new document may be issued either temporary in form, if the vessel is out of her own port, or permanent, if she is in her own port.

II. RECORDING OF BILLS OF SALE

The present law on the subject of recording bills of sale is included in the general mortgage provisions of the new Merchant Marine Act, under which it is provided that no sale of a vessel shall be valid against a ship unless the bill of sale is recorded by the Collector of Customs in an official register, which is required to show

(1) The name of the vessel; (2) The names of the parties to the sale; (3) The time and date of receiving the bill of sale; and (4) The interest in the vessel so sold.

It is also provided that no bill of sale can be recorded unless the interest of the grantor in the vessel is stated, also the interest sold, nor unless the bill has been acknowledged before a notary public or other officer authorized to take acknowledgements. In the case of a change in the port of documentation, no bill of sale may be recorded at the new port unless a certified copy of the record of the vessel at the former port is furnished by the collector of that port.

III. PREFERRED MORTGAGES UNDER MERCHANT MARINE ACT

The law in regard to ship mortgages is highly technical and reference only will be made here to the general provisions of the Merchant Marine Act which makes far-reaching changes in the existing system in an effort to give added value to mortgage security on a ship, a form of security which heretofore has been of very limited value on account of the subordination of the mortgage, which is not a maritime contract, to all maritime liens, whether arising out of contract or tort.

The present law gives to a duly recorded preferred mortgage priority except as to (1) liens arising prior to the recording of a mortgage in strict conformity to the provisions of the act; (2) liens for damages arising out of tort; (3) liens for wages of stevedores when employed directly by the owner, operator, master, ship's husband or agent of the vessel; (4) liens for wages of the crew of the vessel; (5) liens for general average; (6) liens for salvage, including contract salvage; and (7) court costs and expenses.

If a mortgage covers a ship of over 200 gross tons the material facts regarding it must be endorsed on the ship's papers. There must also be filed an affidavit that the mortgage was made in good faith, without the intent to delay or defraud. It must appear that the mortgagee is a citizen of the United States and that the mortgage does not stipulate that the mortgagee waives its preferred status. If the mortgage includes property other than a vessel it must provide for the separate discharge of such property by the payment of a specified amount, and if it includes more than one vessel it must similarly provide for the separate discharge of each vessel on the payment of a specified amount, in default of which, the court, in a suit on the mortgage, is to determine the proportionate charge.

Two certified copies of every preferred mortgage are to be delivered by the collector to the mortgagor, who is required to use due diligence to retain one copy on board the vessel, and to cause it and the ship's documents to be exhibited by the master to any person having business with the vessel which may give rise to a maritime lien or to the sale of the vessel. Upon request, the master is required to exhibit to such person the ship's documents and this copy of the mortgage. Upon request of the mortgagee, the mortgagor is required to disclose in writing, before the execution of any preferred mortgage, the existence of any maritime lien prior to the mortgage, that is known to the mortgagor, and, without the consent of the mortgagee, the mortgagor is forbidden, after the execution of the mortgage and before the mortgagee has had reasonable time to record the mortgage and have the necessary endorsements made, to incur any obligations creating liens on the vessel other than those for wages, for general average or for salvage.

The law permits the preferred mortgage to bear any rate of interest agreed to by the parties. It provides severe penalties upon the master for failing to exhibit the ship's documents or the copy of the mortgage, when demanded, and permits local inspectors to suspend or cancel the master's license for any such violation. As to the mortgagor who fails to make disclosure of liens already referred to, or who incurs new liens with attempt to defraud, the law provides a maximum fine of $1,000 and imprisonment for two years, and makes the mortgage then immediately payable. It also subjects the collectors of customs and the mortgagor to personal liability for loss occasioned by their failure to perform their duties under the act and opens the federal courts to such suits.

Under the same act jurisdiction of all suits to foreclose a preferred mortgage is vested exclusively in the District Courts of the United States. Authority is also given to bring suit _in personam_ in the admiralty, in the United States District Courts, against the mortgagor.

The surrender of the documents of mortgaged vessels without the approval of the Shipping Board is prohibited, and the Board is directed to withhold such approval unless the mortgagee consents to the surrender. By resolution of the Board this law is interpreted as not applying to cases in which owners merely renew licenses or change documents incident to change of trade and where the ownership remains the same.

Elaborate provisions are also to be found covering the formal procedure in case of sales of mortgaged vessels, together with a provision that no rights under a mortgage shall be assigned to any person not a citizen of the United States without the approval of the Board, and that no vessel shall be sold in a suit in the admiralty to any person who is not a citizen.

The legality of the provisions conferring upon the federal courts the right to enforce mortgage liens which are of a nonmaritime character, is much debated and must await final decision by the Supreme Court. If the court should decide against the legality of these provisions serious and difficult questions will be presented as to whether the act as it now stands will be effective to give preferred status to such a mortgage, under the radically different procedure which must then be resorted to.

The act also revises the law on the subject of the creation of maritime liens for necessaries. It provides that persons furnishing repairs, supplies, towage, etc., on order of the owner or an authorized agent shall have a maritime lien on the vessel without being required to prove the credit was given to the vessel; defines the persons who are to be presumed to have authority from the owner to procure repairs, etc., including the agents of a charterer; and permits the waiving of such liens by those furnishing the supplies or services, subject to certain existing specified rules of law.

IV. CHANGE OF NAME

The American law has always been very strict in regard to changing the names of vessels. Such change can only be made by the Commissioner of Navigation, and if made _by_ the master or owner or agent of the vessel subjects the vessel to forfeiture. Since 1881 the Secretary of the Treasury, and later, the Commissioner of Navigation, has been authorized to permit the change of names of vessels "duly enrolled and found seaworthy and free from debt." Under this law it became necessary to secure a special act of Congress, which was frequently done, to change the name of a mortgaged vessel. To cure this defect the law of February 19, 1920, which took effect thirty days after its passage, provides for a change of name _by_ the Commissioner of Navigation upon compliance with regulations issued by him.

All that is required in the first instance is a duplicate application by the owner, addressed to the Commissioner of Navigation and forwarded to him through the Collector of Customs at the home port of the vessel, which is required to state the change desired, the reasons in support of it, place of build, official number, rig, gross tonnage, and the owner's name. It must also include a detailed list of liens of record from all custom houses where the vessel has been previously documented, together with the consent in writing of the mortgagee or other beneficiary under each lien to the change desired. To this the Collector of Customs, forwarding the application, must add his certificate as to liens on record in his office, and must also state the date and place of last inspection, a requirement which presupposes the presentation to him of satisfactory evidence of the vessel's inspection, that is, either the original certificate, or a certified copy of it, or a statement from the office of the Commissioner of Navigation at Washington that such a certificate is outstanding. In the case of vessels not usually inspected, as, for instance, barges, inspectors are authorized to make special examinations at the owner's expense and to furnish a certificate of the seaworthiness of the vessel, the object of course being to prevent old and unseaworthy vessels from concealing their condition and antiquity by a change of name.

After the application has been passed by the Commissioner and permission has been granted, it is required that the change shall be published in a daily or weekly paper nearest to the port of documentation in at least four consecutive issues, the cost of procuring the evidence and of publication to be paid by the applicant. The permission for change is not effective until this fee is paid. Upon its payment the issuance of a new document is then required, which presupposes the production, as in other cases, of the owner's affidavit, and of the master's affidavit, as already explained.

The Collector thereupon records the change of name in his prescribed reports and the transaction is completed.

Vessels formerly documented and which have been sold to the United States and resold to citizens, must be documented under the old name and official number, but vessels never before documented and sold by the United States to citizens, may be redocumented under any name selected that is approved by the commissioner.

In forwarding the application for change of name the Collector of Customs is required to submit his recommendations giving any reasons for or against the change. The usual reasons in support of a change are a desire on the part of the company to carry out some established policy in the naming of its vessels, or a desire to shorten or lengthen a name, as the case may be.

The fee required is prescribed by law upon a sliding scale from $10 to $100, according to gross tonnage, the former figure being for vessels of 99 gross tons and under, and the latter for vessels of 5,000 gross tons and over.

V. ENTRY AND CLEARANCE

Whether or not a vessel is required to enter and clear depends, first, upon whether she is registered, and second, upon her tonnage and the service in which she is engaged.

_All_ vessels under _registry_ (as distinguished from vessels enrolled or licensed) are required to enter and clear at every port, except when bound from a point in one state to that of an _adjoining_ state.

If _not_ registered the question depends in the first instance upon the size of the vessel. The law, as inherited from the early days, when smuggling was frequent in small vessels, and it was considered important to keep them under close supervision, makes a distinction between vessels under twenty tons and those above that tonnage.

If _under_ 20 tons (and properly documented, that is licensed) and laden wholly with American goods, or with foreign goods in packages as imported not exceeding $400 in value, or of aggregate value not over $800, they may trade from a customs district in one state to a customs district in the same or an adjoining state, without entering or clearing. But if _over_ twenty tons, such vessels are permitted to trade, without entering or clearing, from one customs district in the same Great District to another in the same Great District, or from a State in one Great District to an adjoining State in another Great District: Except as thus provided _all_ vessels engaged in the coasting trade must enter and clear on their arrival at, or departure from, each port.

The five Great Districts referred to have been defined as follows and should not be confused with the customs collection districts:--

1. Atlantic coast from Canada to Mexico. 2. Porto Rico. 3. Pacific Coast. 4. Alaska. 5. Hawaii.

It is worth noting, however, that enrolled vessels which are not _required_ to enter and clear _may_ do so, if they desire for any purpose to have a record of their entrance and their clearance. This might occur in the case of a vessel intending to undergo extensive repairs and which might desire such a record to secure a rebate of insurance premium.

In the case of vessels in the foreign trade or coming from one Great District into another, and which are required to be registered, the law requires the surrender and filing of manifests, bill of health and crew list. When these formalities have been complied with, the vessel is posted in the Custom House as entered. The manifest is produced to the boarding officer and includes the original manifest issued at the foreign port as well as a certified copy. The crew list is the list issued by the Collector of the last port of clearance from the United States, the Collector having retained the original sworn to by the master, and having furnished the master with a certified copy. Bills of health should have been secured from the American consular office at the last port of touch, but bills are not required from ports where there is no such officer. The ship's register is deposited in the Custom House and obtained before clearance.

In the case of the clearance of a vessel in the coastwise trade, and which is under registry, or which for any other reason desires a clearance, the master is required to produce a coasting manifest to the Collector. Upon making affidavit to this document the necessary coastwise clearance and permit is issued. If, however, as in the case of tugs, there is no cargo to be manifested, a coastwise permit is issued upon affidavit by the master that the vessel contains no cargo whatever other than sea stores.

In the case of vessels bound to foreign ports the documents take the form of the customary foreign manifest, which is followed by the official clearance in the form familiar to the export trade for a hundred years.

VI. SHIPPING ARTICLES

Shipping articles are required in both the foreign and in the coastwise trade, but with certain important differences.

In the _foreign_ trade the articles, which must be in government form, are required to be signed before a Shipping Commissioner. This, however, does not apply to trade between the United States and the British North American possessions and the West Indies, and Mexico. The nature of these articles is sufficiently familiar to require no comment. Generally speaking the articles must contain the following particulars:--

1. The nature and, as far as practicable, the duration of the intended voyage or engagement, and the port or country at which the voyage is to be terminated.

2. The number and description of the crew, specifying their respective employments.

3. The time at which each seaman is to be on board to begin work.

4. The capacity in which each seaman is to serve.

5. The amount of wages which each seaman is to receive.

6. A scale of the provisions which are to be furnished each seaman.

7. Any regulations as to conduct on board and as to fines, short allowances of provisions, or other lawful punishments for misconduct, which may be sanctioned by Congress or authorized by the Secretary of Commerce, not contrary to or not otherwise provided for by law, which the parties agree to adopt.

8. Any stipulations in reference to allotment of wages or other matters not contrary to law. In 1898 this provision was repealed so far as it relates to allotments in trade between the United States, Dominion of Canada, Newfoundland, the West Indies and Mexico, and the coasting trade of the United States, except between Atlantic and Pacific ports.

In the _coasting_ trade the law merely requires that every _master_ of a vessel of fifty tons or over, bound from a port in one State to a port in any other than a port in an adjoining State (with the exception of voyages from the Atlantic to Pacific ports, which are included under foreign trade) shall make an _agreement in writing_ with his seamen declaring the voyage or term of time for which the seaman is shipped. This agreement _may_ be signed before a Shipping Commissioner, but this is not compulsory. The agreement required in the coasting trade requires only the voyage, or term of time for which the seaman is shipped.

Question has been raised as to whether the requirement as to written articles applies to cases where the "adjoining State" is reached by a waterway running through other States, as, for instance, a voyage from New York to Philadelphia. It seems clear, however, that the law should be strictly interpreted, according to its terms, and that articles would not be required on such a voyage.

In neither case does the law provide a limit in the matter of length of voyage. In England shipping articles are frequently for long periods of a year or more. Our practice is more limited. Clauses for one or more continuous voyages are commonly found with a provision for the termination of the contract by authority of the master, or any member of the crew, upon twenty-four hours' notice.

A provision of law which sometimes occasions difficulty is that which permits a seaman discharged "without fault on his part justifying such discharge" and without his consent, before the commencement of the voyage or before one month's wages are earned, to receive a compensation of one month's wages. This question, like all other questions relating to wages, comes up in the first instance before a Shipping Commissioner, and in the hands of a competent commissioner there should seldom be any difficulty in determining whether the discharge was or was not due to the fault of the seaman or to his inability properly to perform his duties.

The right to overtime is not provided for by statute, and before the war was not generally recognized. In July, 1919, however, an informal agreement was made between the Shipping Board and the steamship association and the unions, under which this right to claim overtime is recognized, provided it is covered by special contract.

VII. LICENSING AND QUALIFICATIONS OF OFFICERS