[† 119] town discretion, as to the skill and honesty of the master; and although he is bound to make good any damage that may happen to the ship or cargo, by his negligence or unskilfulness, if he is of ability to do so, yet he cannot be punished as a criminal for mere incompetence. (1)

At the publication of the earlier editions of this book, there existed one excepted case, arising out of one of the humane provisions made by the British Legislature for the regulation of the African Slave Trade (b); but this trade being now wholly prohibited to her Majesty's subjects, the exception need be no longer noticed.

The other persons employed in the ordinary navigation of a trading ship, fall under the general denomination of mariners and seamen.

For the employment of a British ship it is necessary that the master, and a certain proportion of the mariners, should in many cases be British subjects, from a very obvious principle of public policy, enforced by various provisions of the Legislature. So long ago as the reign of Queen Elizabeth, it was made unlawful to lade or carry any fish, victual, or other things in any bottom, whereof a stranger born was shipmaster, from one part of the realm to another (c). An ordinance made in the time of the usurpation required, in some particular cases, the master and mariners, or the most part of them, to be of the people of the commonwealth (d). The celebrated Navigation Act, which passed immediately after the Restoration, required the master, and three-fourths of the mariners, to be subjects of the King, wherever it required a

trading ship to be either English built or English [† 120] towned (e). And by a statute passed in the following year, "the number of mariners was to be accounted according to what they should have been during the whole

(b) 39 Geo. 3, c. 80, s. 23.

(c) 5 Eliz. c. 5, s. 8, under forfeiture of the goods. To which the ordinance of the 9th of October, 1651, and the Navigation Act, add also the forfeiture of the

vessel.

(d) Ordinance of 9th October, 1651, Scobell's Acts.

(e) 12 Car. 2, c. 18. See Reeves's Law of Shipping and Navigation, pp. 304, 305.

(1) It is a wrong position, that a master of a ship is not answerable for any error of judgment; but only for fault of the heart in civil matters. Reasonable care, attention, prudence and fidelity, are expected of him; and if any misfortune or mischief ensue from the want of them, either in himself or his mariners, he is responsible therefor in a civil action. Per M'Kean, C. Just. in Purviance v. Argus, (1 Dall. R. 184, 185.) And if the owners are obliged to pay damages on this account, they may recover the same from the master. Ibid. Atkyns v. Burrows, 1 Peters, Adm. R. 245; Stone v. Ketland, Wash. Cir. R. 142; Dusar v. Murgatroyd, 1 Wash. Cir. R. 13; Scheiffelin v. Harvey, 6 John. R. 170; Dean v. Angus, Bee's Adm. R. 369, 378.

voyage" (f). These regulations, however, having been found inconvenient in time of war, several temporary statutes (g) allowed, during such periods, the employment of three-fourths foreign seamen: and the two first of those statutes conferred the privileges of British subjects upon foreign seamen after two years' service in the time of war, either on board a ship of war, or a merchant or trading vessel.

This subject was further regulated by a statute passed in the thirty-fourth year of the reign of Geo. 3, as to Great Britain (h); and by another statute passed in the forty-second of the same reign as to Ireland (i). But that statute, and all others relating to the subject, having been repealed in the sixth year of the reign of King George the Fourth, it was, by statute of that year, and subsequently by the 3 & 4 Wm. 4, c. 54, (the Navigation Act now in force) enacted, that no ship shall be admitted to be a British ship, unless duly registered and navigated as such; and that every British registered ship (so long as the registry of such ship shall be in force, or the certificate of such registry retained for the use of such ship), shall be navigated during the whole of every voyage (whether with a cargo or in ballast), in every part of the world, by a master who is a British subject, and by a crew whereof three-fourths at least are British seamen ; and if such ship be employed in a coasting voyage from one part of the United Kingdom to another, or in a voyage between the United Kingdom and the islands of Guernsey, Jersey, Alderney, Sark, or Man; or from one of the said islands to another of them, or be employed in fishing on the coasts of the United Kingdom, or any of the said islands, then the whole of the crew shall be British seamen (j). And it is further enacted, that no person shall be qualified to be master of a British ship, or to be a British seaman, within the meaning of the Act, except natural born subjects of his Majesty, or persons naturalized by Act of Parliament, or made denizens, or who have become British subjects by virtue of conquest, or cession of some newly acquired country, and who shall have taken the oath of allegiance, or the oath of fidelity [† 121] required by the treaty or capitulation or persons who shall have served on board some of his Majesty's ships of war, in time of war, for the space of three years. The natives, however, of places within the limits of the East India Company's charter, although under British dominion, are not, upon the

(f) 13 & 14 Car. 2, c. 11, s. 6.

(g) 6 Anne, c. 37; 13 Geo. 2, c. 3; 28 Geo. 2, c. 16; 19 Geo. 3, c. 14; 33 Geo. 3, c. 26; 43 Geo. 3, c. 64.

(h) 34 Geo. 3, c. 68.

(i) 42 Geo. 3, c. 61.

(j) 3 & 4 Wm. 4, c. 54, s. 12.

ground of being such natives, to be deemed British seamen. It is provided, however, that a ship not required to be wholly navigated by British seamen, which shall be navigated by one British seaman for every twenty tons of her burthen, shall be deemed to be duly navigated, although the number of other seamen shall exceed one-fourth of the whole crew (1). But it is provided, and further enacted, that his Majesty may, by his royal proclamation during war, declare, that foreigners, having served two years on board any of his ships of war, in the time of such war, shall be British seamen, within the meaning of the Act (m). And it is further enacted, that no British registered ship shall be suffered to depart any port in the United Kingdom, or any British possession in any part of the world (whether with a cargo or in ballast), unless duly navigated; with a proviso, that British ships trading between places in America may be navigated by British negroes, and ships trading eastward of the Cape of Good Hope, within the limits of the East India Company's charter by Lascars, or other natives of countries within those limits (n). It is further enacted, that if any British registered ship shall at any time have, as part of the crew, in any part of the world, any foreign seamen not allowed by law, the master or owners thereof, shall, for every such seaman, forfeit 107.; but if a due proportion of British seamen cannot be procured in any foreign port, or any place within the limits of the East India Company's charter, for the navigation of any British ship; or if such proportion be destroyed during the voyage by any unavoidable circumstance, and the master shall produce a certificate of such facts, under the hand of any British consul, or of two British merchants, if there be no consul at the place, where such facts can be ascertained, or from the British governor of any place within the limits of the East India Com

pany's charter; or, in the want of such certificate, [† 122] shall make proof of the truth of such facts, to the collector and comptroller of the customs of any British port, or of any person authorized in any other part of the world, to inquire into the navigation of such ship, the same shall be deemed to be duly navigated (o).

And it is further enacted, that if his Majesty shall at any time, by his royal proclamation, declare that the proportion of British seamen necessary to the due navigation of British ships, shall be less than the proportion required by this Act, every British ship navigated with the proportion of British

(7) 3 & 4 Wm. 4, c. 54, s. 16.

(m) Sect. 17.

(n) Sect 18. See also as to the employ

ment of Lascars, and the navigation of ships in India, 4 Geo. 4, c. 80, s. 20 to 28. (0) 3 & 4 Wm. 4, c. 54, s. 19.

seamen, required by such proclamation, shall be deemed to be duly registered, so long as such proclamation shall remain in force (p).

*On this section (6 Geo. 4, c. 109, s. 19), it has been held, that a ship which lost her proportion of British by death at Sierra Leone, and could not on any reasonable terms replace them except with foreigners, was within the exception; and the vessel having been lost on her voyage home, with an over proportion of foreign hands, that although no certificate had been obtained, the insurers were not precluded from recovering against the underwriters, the circumstances of excuse * being satisfactorily proved to a jury at a trial (q). (1)

(p) Sect. 20.

(9) Suart v. Powell, 1 B. & Ad. 266.

(1) At the publication of the former American edition of this work (in 1810) there was no statute of the U. States, which prohibited the employment of foreign seamen in our ships. By the Ship Registry Act, indeed, the master was required to be an American citizen, and unless he was, the ship was no longer entitled to her American privileges. Act of 1792, ch. 45, § 4, § 15.

But by an act passed in 1813, (Act of 3d of March, 1813, ch. 184,) which was in this respect to take effect at the termination of the then war with Great Britain, it is enacted, that it shall not be lawful to employ on board any of the public or private vessels of the U. States any persons except citizens or persons of color, natives of the U. States; nor so to employ any naturalized citizen, unless he produces a certificate of his naturalization to the commander of a public ship, or to the proper Collector of the Customs, in other cases. Provisions are also made by the same act for an examination and certificate of the list of the crew of every private ship by the proper Collector. And further to enforce this provision, there is a prohibition to take on board any foreigners in foreign ports, as passengers, without the consent of the local authorities. And suitable penalties are imposed to enforce these prohibitions. But the act is to have no effect with respect to the employment of foreigners, who belong to any nation, that shall not by treaty or special convention with the U. States have prohibited on board of her own ships the employment of citizens of the U. States, who have not been naturalized.

<Foreigners, while employed as seamen, in the merchant ships of the United States, are deemed to be "mariners and seamen of the United States" within the Act of the United States 1803, ch. 62, which makes it the duty of our Consuls and Vice Consuls, &c. to provide for destitute seamen within their districts, &c. Matthews v. Offley, 3 Sumner, 116. >

By the Navigation Act of 1st of March, 1817, ch. 204, no fishing bounty is allowed to vessels engaged in the fisheries, unless the officers and three-fourths of the crew are citizens. And a foreign tonnage duty is payable by all vessels in the coasting trade, unless three-fourths of the crew are citizens. And in respect to vessels employed in foreign trade, the foreign tonnage duty is in like manner payable by them, unless their officers and two-thirds of their crew are citizens. Act of 1817, ch. 204, § 3, $5, $6.

It may be proper to add, that it has been decided under the British Navigation Acts, that goods imported in a British ship, not manned and navigated according to law, are not liable to forfeiture, if the imperfect manning of the ship was matter of uncontrollable necessity. The Pelican, 2 Dodson, R. 194.

OF THE AUTHORITY OF THE MASTER WITH REGARD TO THE EMPLOYMENT OF THE SHIP; AND HEREIN,

(Ss.)1. Of the different kinds of Contract under which Merchant Ships are employed.

2. Owners of Ships are bound by Contracts of the Master, relative to the usual course of the Ship's employment.

3. Cases upon this subject.

4. Master's authority, when limited.

5. Ground of the liability of Owners on the Contracts of the Master.

1. A trading ship is employed by virtue of two distinct species of contract: First, The contract by which an entire ship, or at least the principal part thereof, is let for a determined voyage to one or more places. This is usually done by a written instrument, signed and sealed, and called a charter-party. Secondly, The contract by which the master or owners of a ship destined on a particular voyage, engage separately with a number of persons unconnected with each other, to convey their respective goods to the place of the ship's destination. A ship employed in this manner is usually called a general ship.

The nature of each of these contracts will form the subject of particular discussion hereafter (a). In the present chapter it is proposed to consider only the power of the master to bind the owner of the ship by these engagements (b).

2. The owners rarely navigate a trading ship by themselves; the conduct and management of it are almost always entrusted to the master, whether he has or has not a [† 124] partial property in it. In the latter case he is the confidential servant or agent of the owners at large; in the former, of his co-partners. In either case by the law of England, and in conformity to the rules and maxims of

(a) Part 3, ch. 1 and 2.

(b) Now perhaps more frequently by a

written instrument not under seal, called

a Memorandum of Charter.