CHAPTER I.
THE VESSEL.
Title. Bill of sale. Registry. Enrolment. License. Documents. Certificate. Passport. Sea-letter. List of crew. Bill of health. General clearance. Clearing manifest. Invoice. Bill of lading. Charter-party. Log-book. Manifest. List of passengers and crew. Remaining sea-stores. Medicine-chest. Provisions.
Title.—The bill of sale is the proper evidence of title to all vessels. It is the instrument of transfer which is used in all maritime countries, which courts of law look to for proof of title, and which is in most cases absolutely required.[6]
Possession of the vessel should also accompany the bill of sale, whenever it is practicable. If the bill of sale is transferred while the vessel is at sea, possession should be taken immediately upon her arrival in port. The fact of the bill of sale being with one person and the actual possession of the vessel with another, after there has been an opportunity to transfer it, will raise a presumption of fraud, and make the parties liable to losses and difficulties in dealing with creditors, and such as purchase in good faith.[7]
Registry, Enrolment, and License.—The laws of the United States have given many privileges to vessels built, owned and commanded by our own citizens. Such vessels are entitled to be registered, enrolled or licensed, according to circumstances, and are thereupon considered "vessels of the United States, entitled to the benefits and privileges appertaining to such ships." The only vessels entitled to a register are those built in the United States and owned wholly by citizens thereof; vessels captured in war by our citizens, and condemned as prizes; and vessels adjudged to be forfeited for breach of the laws of the United States, being wholly owned by such citizens. No owner is compelled to register his vessel, but unless registered (with the exception of those enrolled and licensed in the coasting and fishing trades) she is not entitled to the privileges and benefits of a "vessel of the United States," although she be built, owned and commanded by citizens thereof.[8]
Vessels employed wholly in the whale-fishery, owned by an incorporated company, may be registered, so long as they shall be wholly employed therein.[9]If not so owned and registered, they must be enrolled and licensed.[10]
The name of every registered vessel, and the port to which she belongs, must be painted on her stern, on a black ground, in white letters, of not less than three inches in length. And if any registered vessel is found without her name and the name of her port so painted, the owners thereof forfeit fifty dollars.[11]
In order to the obtaining of a register, oath must be made that the master is a citizen of the United States.[12]If the master of a registered vessel is changed, or if the vessel's name is altered, such fact must be endorsed upon the register at the custom-house, otherwise she will cease to be considered a vessel of the United States.[13]
If any certificate of registry is fraudulently or knowingly used for any ship or vessel not at the time entitled to it, such ship or vessel, with her tackle, apparel and furniture, shall be forfeited to the United States.[14]If an enrolled or licensed vessel is about to proceed on a foreign voyage, she must surrender her enrolment and license, and take out a register, or she, together with her cargo, will be liable to forfeiture.[15]In case of the loss of a register, the master may make oath to the fact, and obtain a new one.
All vessels engaged in the coasting and fishing trades, above twenty tons' burden, in order to be entitled to the privileges of vessels of the United States in those trades, must be enrolled and licensed; and if less than twenty tons, must be licensed.[16]The same qualifications and requisites in all respects are demanded in order to the enrolling and licensing of a vessel, which are required for registering.[17]The name must be painted on the stern in the same manner, under penalty of $20.[18]
If any vessel licensed for the fisheries engages in any other business not expressly allowed by the license, she is forfeited.[19]Vessels, however, licensed for the mackerel trade are not forfeited in consequence of having been engaged in catching cod, or other fish; but they are not entitled to the bounty allowed to vessels in the cod fisheries.[20]The officers and at least three fourths of the crew of every fishing vessel must be American citizens, or they can recover none of the bounties.[21]
Documents.—Every registered vessel should have acertificate of registry.[22]This is an abstract of the record of registry, showing the names and residences of the owners, the place where the vessel was built, with a particular description of the vessel. This document shows the national character of the vessel, and is important to prove neutrality in time of war between other powers. For the same reasons, an enrolled vessel should have acertificate of enrolment.[23]Vessels bound to Europe should havepassports. A passport is a permission from the government for the vessel to go upon her voyage, and contains a description of the vessel, crew, &c., and the name of the master. Vessels bound round Cape Horn or the Cape of Good Hope should havesea-letters. These contain a description of the cargo, &c., and are written in four languages—English, French, Dutch and Spanish. The two latter documents are rendered necessary or expedient by reason of treaties with foreign powers. Every vessel should have alist of crew. This specifies the name, age, place of birth and residence, &c., of each one of the ship's company; and is, of course, very useful when sailing among belligerents. The other documents are thebill of health,general clearance,clearing manifest,invoiceandbill of ladingfor the cargo,charter-party, if one has been given, and thelog-book. On entering at the custom-house, the papers required in addition to these are themanifest,list of passengersandcrew, and ofremaining sea-stores.
Medicine-chest.—Every vessel belonging to citizens of the United States, of the burden of one hundred and fifty tons or upwards, navigated by ten or more persons in the whole, and bound on a foreign voyage, must be provided with a medicine-chest, put up by some apothecary of known reputation, and accompanied by directions for using the same. This chest must be examined and refitted by the same or some other apothecary at least once in a year.[24]The same rule applies to vessels of seventy-five tons and upwards, navigated by six persons in the whole, and bound to the West Indies.[25]
National Character of Crew.—In order to be placed upon the most favorable footing as to duties, bounties, &c., it is necessary that the master, officers, and two thirds of the rest of the crew of vessels in the foreign trade, and officers and three fourths of the crew of fishing and coasting vessels, should be citizens, or "persons not the subjects of any foreign prince or state."[26]Nevertheless, while foreigners are employed in our vessels, they are under the protection of our laws as "mariners and seamen of the United States."[27]
Provisions.—Every vessel of the United States bound on a voyage across the Atlantic, shall, at the time of leaving the last port from which she sails, have on board, well secured under deck, at least sixty gallons of water, one hundred pounds of salted beef, and one hundred pounds of wholesome ship bread, for every person on board, (over and above any stores that the master or passengers may have put on board;) and in like proportions for shorter or longer voyages. If any vessel is not so provided, and the crew are put upon short allowance of bread, flesh or water, they can recover an additional day's wages for every day they are so allowanced.[28]
Passengers.—The same provision, with the addition of one gallon of vinegar, must be made for every passenger; and if, in default of these, the passengers are put on short allowance, each passenger can recover three dollars for every day he is so allowanced.[29]
If any vessel takes on board a greater number of passengers than two for every five tons, custom-house measurement, the master forfeits $150 for every such passenger; and if the number by which they exceed two for every five tons shall amount to twenty, the vessel becomes forfeited.[30]
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]
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]
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]
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]
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 deemedsea 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]
If the master land any of thesea stores, without first obtaining a permit, such stores are forfeited, and the master becomes liable to pay treble the value of them.[37]
The master subjects himself to a fine of $200 if the vessel departs on a foreign voyage without apassport.
It is the duty of the master, coming from a foreign port, to have amanifestof 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]
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]
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]
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]
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]
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]
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]
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]
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]
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 toprosecute 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]
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]
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]
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]
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]
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]
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 adeviationis 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 aprotestin 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]
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]
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]
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 admiraltyin personam, but notin 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]
CHAPTER III.
THE MASTER'S RELATION TO PASSENGERS AND OFFICERS.
Treatment of passengers. Removal of officers.
Passengers.—The contract of passengers with the master is not for mere ship-room and personal existence on board, but for reasonable food, comforts, necessaries, and kindness. In respect to females, it extends still further, and includes an implied stipulation against obscenity, immodesty, and a wanton disregard of the feelings. An improper course of conduct in these particulars will be punished by the court, as much as a personal assault would be.[67]
Officers.—The master may remove either of his officers from duty for fraudulent or unfaithful conduct, for gross negligence and disobedience, or for palpable incapacity. But the causes of removal must be strong and evident;[68]and much more so in the case of the chief mate than of the second mate. Any temporary appointments, made by the master, are held at his pleasure, and stand upon a different footing from those of persons who originally shipped in the character in question.[69]
When a man ships in a particular capacity, as carpenter, steward, or the like, he is not to be degraded for slight causes. He stipulates for fair and reasonable knowledge and due diligence, but not for extraordinary qualifications.[70]
The right of the master to compel an officer, who has been removed, to do duty as a seaman before the mast, has never been completely established; but the better opinion would seem to be that he may do it in a case of necessity. Merchant vessels have no supernumeraries, and if the master can show that the officer was unfit for the duties he had undertaken, and thus made it necessary to take some one from the forecastle to fill his place, and that, by this means, the ship had become short-handed, he may turn the officer forward, assuming the responsibility for the act, as well as the risk of justification. He would be required to show a much stronger cause for removing the chief mate than would be insisted upon in the case of a second mate; and probably this necessity for exacting seaman's duty would be held to extend no further than an arrival at the first port where other hands could be shipped.
Nothing but evident unfitness or gross and repeated misconduct will justify the master in turning a person forward who shipped in another capacity, as carpenter, cook, or steward. But in such cases, he undoubtedly may do so. Still, when before the mast, he cannot require of them the duty of able seamen, unless they are such in fact.
CHAPTER IV.
THE MASTER'S RELATION TO THE CREW.
Shipment. Shipping papers. Discharge. Imprisonment. Punishment.
Shipment.—The master of every vessel of the United States, bound on a foreign voyage, and of all coasting vessels of fifty tons burden, must make a contract in writing (shipping articles) with each seaman, specifying the voyage, terms of time, &c.; and in default thereof shall forfeit $20 for every case of omission, and shall be obliged to pay every such seaman the highest rate of wages that have been paid for such voyages at the port of shipment within three months previous to the commencement of the voyage.[71]And when the master ships a seaman in a foreign port, he must take the list of crew and the duplicate of the shipping articles to the consul or commercial agent, who shall make the proper entries thereupon; and then the bond originally given for the return of the men shall embrace each person so shipped. All shipments made contrary to this or any other act of Congress shall be void, and the seaman may leave at any time, and claim the highest rate of wages paid for any man who shipped for the voyage, or the sum agreed to be given him at his shipment.[72]
At the foot of every such contract there shall be a memorandum of writing of the day and hour on which such seaman shall render himself on board. If this memorandum is made and the seaman neglects to render himself on board at the time specified, he shall forfeit one day's pay for every hour he is so absent, provided the master or mate shall, on the same day, have made an entry of the name of such seaman in the log-book, specifying the time he was so absent. And if the seaman shall wholly neglect to render himself on board, or, after rendering, shall desert before sailing, so that the vessel goes to sea without him, he then forfeits the amount of his advance and a further sum equal thereto, both of which may be recovered from himself or his surety.[73]
There is no obligation upon the master to make these memorandums and entries, other than that the forfeitures cannot be inflicted upon the seamen unless they have been made literally according to the form of the statute.
If any seaman who has signed the articles shall desert during the voyage, the master may have him arrested and committed to jail until the vessel is ready to proceed, by applying to a justice of the peace and proving the contract, and the breach thereof by the seaman.[74]
Every vessel bound on a foreign voyage shall have on board a duplicate list of the crew, and a true copy of the shipping-articles, certified by the collector of the port, containing the names of the crew, which shall be written in a uniform hand, without erasures or interlineations. This copy the master must produce to any consul or commercial agent of the United States who shall require it; and it shall be deemed to contain all the conditions of the contract. All erasures and interlineations shall be deemed fraudulent unless proved to be innocent and bonâ fide. Every master who shall go upon a foreign voyage without these documents, or shall refuse to produce them when required, shall forfeit one hundred dollars for each offence, beside being liable in damages to any seaman who may have been injured thereby.[75]
Discharge.—If the master discharges any seaman in a foreign port, with his own consent, he shall pay to the consul three months' wages for every such seaman, in addition to the wages then due to him, two-thirds to go to the seaman upon his taking passage for the United States, and the remainder to be retained by the consul to make a fund for the relief of destitute seamen.[76]The master of every vessel bound to the United States shall, upon the request of the consul, take on board any seaman and transport him to the United States, on terms not exceeding ten dollars for each seaman, under penalty of one hundred dollars for every refusal. He is not, however, bound to receive more than two men to every hundred tons.[77]
The whole policy of the United States discourages the discharge of seamen in foreign ports. If the seaman is discharged against his consent, and without justifiable cause, he can recover his wages up to the time of the vessel's return, together with his own expenses. The certificate of the consul will not, of itself, prove the sufficiency of the cause of discharge. Though the seaman shall have made himself liable to be discharged, yet if he repents and offers to return to duty, the master must receive him, unless he can show a sufficient cause of refusal.[78]If the master alleges, as a cause for discharging a seaman, that he was a dangerous man, it must be shown that the danger was such as would affect a man of ordinary firmness.[79]
In addition to the master's liability to the seaman, he is criminally liable to the government for discharging a mariner without cause. The statute enacts that if the master shall, when abroad, force on shore or leave behind any officer or seaman without justifiable cause, he shall be fined not exceeding five hundred dollars, or imprisoned not exceeding six months, according to the aggravation of the offence.[80]
Notwithstanding these liabilities, the master may discharge a seaman for gross misconduct; yet the right is very strictly construed.[81]
Imprisonment.—The master has the right to imprison a seaman in a foreign port, in a case of urgent necessity, but the power has always been very closely watched by courts of law. "The practice of imprisoning seamen in foreign jails is one of doubtful legality, and is to be justified only by a strong case of necessity."[82]"The master is not authorized to punish a seaman by imprisonment in a foreign jail unless in cases of aggravated misconduct and insubordination."[83]If he does so punish him, he is not permitted to deduct his wages during the time of imprisonment, nor charge him with the expense of it.[84]If the imprisonment is without justifiable cause, the master is not excused by showing that it was ordered by the consul.[85]And, generally, the advice of a consul is no justification of an illegal act.[86]
Punishment.—The master may inflict moderate correction on a seaman for sufficient cause; but he must take care that it is not disproportionate to the offence. If he exceeds the bounds of moderation he is treated as a trespasser, and is liable in damages.[87]In respect to the mode of correction, it may be by personal chastisement, or by confinement on board ship, in irons, or otherwise.[88]But there must not be any cruelty or unnecessary severity exercised. The mode, instruments or extent of the punishment are not laid down by law. These must depend upon circumstances. In cases of urgent necessity, as of mutiny, weapons may be used which would be unlawful at other times; but even in these cases, they must be used with the caution which the law requires in other cases of self-defence and vindication of rightful authority.[89]
It is not necessary that the punishment should be inflicted to suppress the offence at the time of its commission. It may be inflicted for past offences, and to promote good discipline on board. But the reference to by-gone acts should be very clear and distinct, or they will be presumed to have been forgiven.[90]In many cases prudence may require a postponement of the proper punishment. The authority of the master, being in its nature parental, must be exercised with a due regard to the rights and interests of all parties. He has a large discretion, but is held to answer strictly for every abuse of it.[91]The law enjoins upon him a temperate demeanor and decent conduct towards seamen. He risks the consequences if he commences a dispute with illegal conduct and improper behavior.[92]In all his acts of correction, he must punish purely for reformation and discipline, and never to gratify personal feelings.[93]If a master generally permits or encourages disorderly behavior in his ship, he is less excusable for inflicting unusual punishment on account of misconduct arising out of that disorder.[94]If the case admits of delay, and the master does not make proper inquiry before punishing, he takes the consequences upon himself.[95]
This power over the liberty and person of a fellow man, being against common right, and intrusted to the master only from public policy, regarding the necessities of the service, is to be sparingly used, and a strict account will be required of its exercise. The master is responsible for any punishment inflicted on board the vessel, unless in his absence, or when he is prevented by force from interfering.[96]Neither will absence always be an excuse. If he had reason to suppose that such a thing might be done, and did not take pains to be present and interfere, he will be liable. Neither, (as is often supposed,) will the advice, or even the personal superintendence or orders of a consul, or any foreign authority, relieve the master of his personal responsibility.[97]He may ask advice, but he must act upon his own account, and is equally answerable for what he does himself, and what he permits to be done on board his vessel by others. The seaman is entitled to be dealt with by his own captain, under whom he shipped, and whom he may hold responsible at the end of the voyage; and this responsibility is not to be shaken off by calling in the aid of others. In case of an open mutiny, or of imminent danger to life and property, the master may make use of the local authorities; but then he is to remember that he can use them no further than for the purpose of quelling the mutiny, or of apprehending the felon. As soon as his authority is restored, the parental character is again thrown upon him, and all acts of punishment must be upon his own responsibility. He has no right to punish criminally. He has no judicial power. If a seaman has committed an offence further than against the internal order and economy of the ship, and which moderate correction is not sufficient to meet, the master must bring him home, (in confinement, if necessary,) or send him immediately by some other vessel, to be tried by the laws and by a jury of his country.[98]
The practice of subjecting American seamen to foreign authority, or to persons whom they cannot well hold answerable,—like that of foreign imprisonment,—is an odious one, and must be justified by an overpowering necessity.
A recent statute[99]makes it the duty of consuls to exert themselves to reclaim deserters and discountenance insubordination, and authorizes them to employ the local authorities, where it can usefully be done, for those purposes. But this will unquestionably be restricted to the apprehension of the deserter, and the quelling of the revolt or mutiny; and as soon as these ends are attained, the sole responsibility of the master in dealing with the crew will re-attach.
If the master is present while the mate, or any subordinate officer, inflicts punishment upon any of the crew, or if it is inflicted under such circumstances as would raise a presumption that the master was knowing of it, and he does not interfere, he will be held to have adopted it as his own act, and will be answerable accordingly.[100]
In addition to the master's liability to the seamen in damages for abuse of power, he is also liable, as a criminal, to fine and imprisonment. A recent statute enacts, that "if any master, or other officer, of an American vessel, shall, from malice, hatred, or revenge, and without justifiable cause, beat, wound, or imprison any one or more of the crew of such vessel, or withhold from them suitable food or nourishment, or inflict on them any cruel or unusual punishment, every such person so offending shall, on conviction thereof, be punished by fine not exceeding one thousand dollars, or by imprisonment not exceeding five years, or by both, according to the nature and aggravation of the offence."[101]It is held that the word 'crew,' in this statute, includes officers; and accordingly a master was punished for unjustifiably confining and otherwise mal-treating his chief mate.[102]
To constitute 'malice' in the above statute, it is not necessary to show malignity as it is commonly understood, or brutality; but the term, in law, requires no more than a 'wilful intention to do a wrongful act.' An offence is punishable under this act, even although no bad passions came into play, (as hatred, or revenge,) for the term 'malice,' in law, covers all cases of intentional wrong, in their mildest form.[103]
If a seaman desires to lay any complaint before a consul in a foreign port, the master must permit him to land for that purpose, or else inform the consul immediately of the fact, stating his reasons in writing for not allowing the man to land. If he refuses to do this, he forfeits one hundred dollars, and is liable to the seaman in damages.[104]