Chapter II

THE MASTER'S RELATION TO VESSEL AND CARGO.

Revenue duties and obligations. List of crew. Certificate. Sea letter. Passport. List of passengers. Manifest. Sea stores. Unloading. Post-office. Report. Citizenship. Coasting license. Power to sell and hypothecate. Keeping and delivering cargo. Deviation. Collision. Pilot. Wages and advances.

REVENUE DUTIES AND OBLIGATIONS.--The master of every vessel bound on a foreign voyage, before clearance, must give to the collector of the customs a list of the crew, specifying their names, places of birth and residence, and containing a description of their persons; whereupon he is entitled to a certified copy of the same from the collector. This copy he must deliver, under a penalty of $400, to the first boarding officer upon his arrival in the United States, and produce the persons named therein, unless the same have been discharged in a foreign country, with the consent of the consul or other commercial agent thereto certified in writing under his hand and official seal; or by showing that they have died or absconded, or been impressed into foreign service.[31] The duplicate list of the crew shall be a fair copy, in one uniform handwriting, without erasure or interlineation.[32]

[31] Act 1803, ch. 62, §1.

[32] Act 1840, ch. 28, §1.

The owners must also obtain from the collector of the customs a certified copy of the shipping articles. This must be produced by the master before any consul or commercial agent who may demand it, and all erasures in it or writings in a different hand shall be deemed fraudulent, unless satisfactorily explained.[33]

[33] Do.

The master of every vessel of the United States, on arriving at a foreign port, must deposit with the consul, or other commercial agent, his certificate of registry, sea letter, and passport (if he have one,) under a penalty of $500. The consul returns them to him, upon his obtaining a clearance.[34]

[34] Act 1803, ch. 62, §2.

Upon arriving in the United States, the master must report to the collector a list of passengers, specifying their names, age, sex, occupation, the country of which they are citizens, and that in which they intend to reside. This is under a penalty of $500.[35]

[35] Act 1819, ch. 170, §4.

Vessels arriving from foreign ports must unlade and deliver their cargoes between sunrise and sunset, unless by special permission of the collector of the port.

In making out manifests of cargoes, the master must specify what articles are to be deemed _sea stores_, and declare the same upon oath. If the collector deems the amount excessive, he may charge them with a duty. If the cargo is found to exceed the manifest, the excess is forfeited to the government, and the master is liable to pay treble the amount.[36]

[36] Act 1799, ch. 128, §45.

If the master land any of the _sea stores_, without first obtaining a permit, such stores are forfeited, and the master becomes liable to pay treble the value of them.[37]

[37] Act 1799, ch. 128, §45.

The master subjects himself to a fine of $200 if the vessel departs on a foreign voyage without a _passport_.

It is the duty of the master, coming from a foreign port, to have a _manifest_ of cargo and a copy of the same made out and ready for delivery to any officer of the customs who may board the vessel within four leagues of the coast.[38] Unless this manifest is produced, no merchandise can be unloaded from the vessel. The manifest shall specify the port where the merchandise was received, the port to which it is consigned, the name, build and description of the vessel, with the name of the master and owner, the marks and numbers of each package of goods, with the name of the consignee; and also the names of the passengers with their baggage, and the account of all remaining sea stores.[39]

[38] Do. §23.

[39] Act 1819, ch. 170, §4.

If any goods are unladed within four leagues of the coast, or within the limits of any district, without authority from the proper officer, except in case of accident or necessity--which must be strictly proved--such goods are forfeited, and the master and mate incur, respectively, a penalty of $1000 for each offence.[40]

[40] Act 1799, ch. 128, §27.

If the master refuses to exhibit his manifest and deliver a copy of the same to the boarding officer, or to inform him of the true destination of the vessel, he incurs a penalty of $500 for each offence.[41]

[41] Do. §26.

The master must deposit all his letters in the post-office before entering his cargo; and if he shall break bulk before depositing his letters, he forfeits $100 for each offence.[42]

[42] Act 1825, ch. 275, §17.

If any merchandise is imported into the United States not contained in the manifest, the master of the vessel forfeits a sum equal to the value of such merchandise; and if any of it belongs or is consigned to the master, or to any officer or seaman on board, it becomes forfeited; unless it shall be made to appear that the omission occurred by accident or mistake.[43]

[43] Act 1799, ch. 128, §24.

The master of a vessel arriving from a foreign port must report himself to the collector within twenty-four hours, and within forty-eight hours he must make a further and more particular report, in writing, under penalty of $100; and if he shall attempt to leave the port without entry he forfeits $400.[44]

[44] Do. §30.

If any articles reported in the manifest are not found on board, the master forfeits $500, unless it shall be made to appear that the same was caused by accident or mistake.

The master of every vessel bound on a foreign voyage must deliver a manifest of cargo to the collector, and obtain a clearance, under penalty of $500.[45]

[45] Do. §3.

The master of every vessel enrolled and licensed in the coasting trade must be a citizen of the United States; and if the vessel trades to any other than an adjoining state, three fourths of the crew must be citizens. If the master of a coasting vessel is changed, such change must be reported to the collector of the port where the change is made.[46]

[46] Act 1793, ch. 52, §12.

The master of every coasting vessel must deliver up his license within three days after it expired, or, if the vessel was then at sea, within three days after her first arrival thereafter, under a penalty of $50.

The master of a coasting vessel departing from one great district to another, must deliver to the collector duplicate manifests of all the cargo on board, under penalty of $50; and within forty-eight hours after his arrival at the port of delivery, and before breaking bulk, he must deliver to the collector the manifest certified to by the collector of the former port, under penalty of $100.[47] If the vessel shall at any time be found without a manifest on board, the master forfeits $20, and if he refuses to inform the officer of his last port of departure, he forfeits $100.[48]

[47] Do. §17.

[48] Do. §18.

POWER TO SELL AND HYPOTHECATE.--The master has, in certain cases, power to hypothecate the ship and cargo, and also to sell a part of the cargo; and in certain extreme cases a sale of the ship and cargo, made from necessity, and in the utmost good faith, will be upheld. His right to do any of these acts is confined to cases of necessity, in distant ports, where he cannot get the advice of the owner. The safest rule for the master is, to bear in mind that his duty is to _prosecute the voyage_, and that all his acts must be done for this purpose, and in good faith. If a necessity arises in a foreign port for the repairing or supplying of the ship, he must, in the first instance, make use of any property of the owner he may have under his control, other than cargo.[49] If, however, he has money of the owner in his hands, put on board for the purpose of procuring a cargo, he is not bound to apply this first; but must use his discretion, bearing in mind that all repairs have for their sole object the prosecution of the voyage, which might be defeated by making use of these funds.[50] His next recourse should be to the personal credit of the owner, by drawing bills, or otherwise.[51]

[49] 3 Mason, 255.

[50] Do.

[51] 2 Wash. C. C. 226.

If these means fail, he is next to hypothecate (that is, pledge) the ship (bottomry,) or cargo (respondentia,) or freight, or sell part of the cargo, according to circumstances. If the owner of the ship is also owner of the cargo, the better opinion seems to be, that the master may take whichever of these means can be adopted with the least sacrifice of the owner's interest; though, probably, selling part of the cargo would in almost all cases be the least favorable course for all the purposes of the voyage.[52] If the owner of the ship is not owner of the cargo, the master should bear in mind that he is agent of the former, and has generally no further control over the cargo than for safe keeping and transportation.[53] He should, therefore, first exhaust the credit of the ship and freight by hypothecation; and if these means fail, he then becomes, by necessity, agent for the owners of the cargo for the purposes of the voyage, and may hypothecate the whole, or sell a part, according to circumstances. As to selling part, he should remember that his duty is to carry forward the objects of the voyage, and that selling a large part would probably impair these objects more than hypothecating the whole.[54]

[52] 2 Wash. C. C. 226.

[53] Do.

[54] 3 Mason, 255. 1 Wash. C. C. 49; 2 Do. 226. 3 Rob. 240.

In no case can any of the cargo be sold or hypothecated to repair or supply the ship, unless these repairs and supplies are to be for the benefit of the cargo. The strictest proof is always required that the repairs were in the first place necessary, and, in the next place, that they were for the benefit of the cargo, and not merely for the good of the ship-owner.[55]

[55] 2 Wash. 226. 3 Rob. 240.

A further question arises, whether the master has ever, and when, the right to sell the whole cargo and the ship itself. If it should be impossible to repair the ship and send her on the voyage by any of the means before mentioned, it then becomes the master's duty to forward the cargo to the port of destination by some other conveyance. If neither of these things can be done, then he becomes, from necessity, agent of the owner of the cargo, and must make the best disposition of it in his power. If the goods are perishable, the owner cannot be consulted within a reasonable time, and has no agent in the port, and something must be done with the cargo, and there is no one else to act--then the master must dispose of it in such a way as best to subserve the interest of its owner. He should take the advice of the commercial agent or other suitable persons, should also use his own judgment and act with good faith, and take care to preserve evidence that he has so done. If all these requisites are not complied with, he will incur the danger of having his acts set aside.[56]

[56] 2 Wash. C. C. 150. 3 Rob. 240.

The rule as to the sale of the ship is very nearly the same, except that it is, perhaps, still more strict. If all means for repairing the vessel and sending her on her voyage have failed, and a case of absolute necessity arises, the master may make a sale of her. As a prudent man, he should have the sale made, if possible, under the authority of the judicial tribunals of the place. Even this will not, of itself, render the sale valid, but will go far toward sustaining it. He should consult the consul, or other suitable persons; should have a survey made; should take care to have the sale conducted publicly and with the best faith in all parties, and to preserve evidence of the same. Although a person should buy in good faith, yet the sale will be set aside unless it can be shown that there was the strictest necessity for it. The master must not become a purchaser himself, and even if he afterwards buys of one who purchased at the sale, this transaction will be very narrowly watched, and he will be bound to show the very highest good faith in all parties.[57]

[57] 5 Mason, 465. 2 Sumner, 206. Edwards, 117.

The strictness of these rules should not deter the master from acting, where the interest of all requires it, but will show him the risk that is run by acting otherwise than with prudence and entire honesty. He should remember, too, that, in taking command of a vessel, he not only covenants that he will act honestly and with the best of his judgment, but also holds himself out as having a reasonable degree of skill and prudence.[58]

[58] 1 Dallas, 184.

As to the safe keeping, transportation, and delivery of the cargo, the master's duties and obligations are those of a common carrier upon land. He is bound to the strictest diligence in commencing and prosecuting the voyage, a high degree of care both of vessel and goods, and is held liable for all losses and injuries not occasioned by inevitable accident, or by the acts of public enemies. He is answerable also for unnecessary delays and deviations, and for the wrongful or negligent acts of all persons under his command. At the termination of the voyage, he must deliver the goods to the consignee or his agents. A landing upon the wharf is a sufficient delivery, if due notice be given to the parties who are to receive them. He is not, however, bound to deliver until the freight due is paid or secured to his satisfaction, as he has a lien upon the goods for his freight; but the consignee can require the goods to be taken from the hold, in order that he may examine them, before paying freight. In such case they should not go out of the possession of the master or his agents.

DEVIATION.--The master must not deviate from the course of the voyage. By a _deviation_ is meant, technically, any alteration of the risk insured against, without necessity or reasonable cause. It may be by departing from the regular and usual course of the voyage, or by any unusual and unnecessary delay. A deviation renders the insurance void, whether the loss of the vessel is caused by the deviation or not. It is not a deviation to make a port for repairs or supplies, if there be no unnecessary delay, nor to depart from the course of the voyage in order to succor persons in distress, to avoid an enemy, or the like.

It is the master's duty, within twenty-four hours after arriving at his first port, to make a _protest_ in case of any accident or loss happening to vessel or cargo. The log-book also should be carefully kept, without interlineations or erasures. The master must also enter a protest in case any American seaman is impressed, and transmit a copy of the same to the secretary of state, under a penalty of $100.[59]

[59] Act 1796, ch. 36, §5.

COLLISION.--A vessel having the wind free must make way for a vessel close-hauled. The general practice is, that when two vessels approach each other, both having a free or fair wind, the one with the starboard tacks aboard keeps on her course, or, if any change is made, she luffs, so as to pass to windward of the other; or, in other words, each vessel passes to the right. This rule should also govern vessels sailing on the wind and approaching each other, when it is doubtful which is to windward. But if the vessel on the larboard tack is so far to windward that if both persist in their course the other will strike her on the lee side, abaft the beam, or near the stern; in such case, the vessel on the starboard tack must give way, as she can do so with less loss of time and greater facility than the other. These rules are particularly intended to govern vessels approaching each other under circumstances that prevent their course and movements being readily discerned with accuracy, as at night or in a fog. At other times, circumstances may render it expedient to depart from them. A steamer is considered as always sailing with a fair wind, and is bound to do whatever would be required of a vessel going free.[60]

[60] Report of Benjamin Rich and others to District Court of
Mass.

PILOT.--The master must take a pilot when within the usual limits of the pilot's employment.[61] If he neglects or refuses so to do, he becomes liable to the owners, freighters, and insurers. If no pilot is at hand, he must make signals, and wait a reasonable time. The master is to be justified in entering port without a pilot only by extreme necessity. After the pilot is on board, the master has no more control over the working of the ship until she is at anchor.[62]

[61] 6 Rob. 316. 7 T. R. 160.

[62] 2 B. & Ad. 380. 3 Kent's Com. 175 c.

WAGES, ADVANCES, &C.--The master has no lien upon the ship for his wages.[63] He is supposed to look to the personal responsibility of the owner. He has a lien on freight for wages, and also for his advances and necessary expenses incurred for the benefit of the ship.[64] He can sue in admiralty _in personam_, but not _in rem_;--that is, he can sue the owner personally, but cannot hold the ship. It does not seem to be settled in the United States whether the master has a lien on the ship for advances made abroad for the benefit of the vessel.[65] In case of sickness, the master's right to be cured at the expense of the ship seems to be the same as that of the seamen.[66]

[63] 3 Mason, 91. 11 Pet. R. 175.

[64] Ware, 149. But see 5 Wend. 314.

[65] 3 Mason, 255.

[66] 1 Sumner, 151.