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Shipping and property, and governed by the same rules of law and equity as other partnership effects.

Seamen.

Part-owners.

5. As respects the settlement of any differences which may arise amongst themselves, such differences usually arise, either as regards the employment of the ship, or as regards the settlement of the accounts. As respects the employment of the ship, if the majority of part-owners agree to employ the ship in a certain manner, but cannot procure the consent of the other part-owners, the Court of Admiralty (upon the arrest of the ship by the dissentient minority) will then take a stipulation from such majority in a sum equal to the value of the shares of those who disapprove of the venture, that the stipulators will bring back the ship, or pay the latter the value of their respective shares. The ship then sails at the charge, risk, and profit of the stipulators.

6. If the disagreement respect the adjustment of accounts, and there be no written agreement by which the part-owner concerned has consented to account as if in severalty, the only remedy as between part-owners is by a suit in a Court of Equity. But if there be a written agreement to account as if in severalty, the Common Law will attach upon it; and an action may be maintained against the part-owner so agreeing. This is, therefore, the more prudent mode.

7. As each part-owner has a dominion in his part, and as his part and those of others are inseparably connected as respects the use; so each part-owner has a dominion in the ship, whilst in possession. One part-owner, therefore, cannot recover damages against another for employing the ship without or against his consent, even though the ship should be lost. In the same manner, there is no redress for one part-owner, neither in the Courts of Law nor Equity, if the ship be sent or taken to sea without his consent. The remedy is to arrest the ship, previously to departure; in which case the Court of Admiralty will order the stipulation above-mentioned. But if one partowner have possession of the ship, he has the dominion of

Shipping and

the ship, and may use it as a tenant in common; that is, of Merchant subject to account for profits, and responsible for its injury Seamen. or destruction: but within such limits he is perfectly free to use it.

The above are the principal questions, and the source of the principal cases, which arise under ownership and part-ownership. The detail and more accurate distinctions belong to the following treatise. The above synopsis, however, may not be without its use in aid of memory and reference.

SECONDLY,-As regards the duties, liabilities, and authority of the master; or, in other words, his legal qualifications; his authority to employ the ship; and his power to bind his owners for repairs, stores, and necessaries.

8. The qualifications of the master and seamen, as British subjects, under the Navigation Law, have been already mentioned. By these acts, chiefly consolidated in the 34th of the late king, (i) the following are the rules and qualifications as respect the master and seamen :-1. In the general trade by British ships, the master and threefourths of the mariners at least must be British subjects, with the exceptions hereafter mentioned. 2. In the coasting trade, the master and all the seamen must be British subjects. (k) 3. And this legal proportion of British seamen is to be kept up during the whole voyage, unless in case of sickness, death, desertion, or capture of any or the whole. 4. The master of a British ship shall in all cases be a natural-born subject; or a naturalized subject; or a denizen by letters of denization; or one who has become a subject by virtue of conquest or cession, and has taken the oath of allegiance as such. 5. But foreign seamen, who shall have served in time of war three years on board

(i) 34 Geo. III. c. 68.

(k) But four or more of the commissioners of customs in England, and three or more in Scotland, may license the employment of foreign mariners (not exceeding one-fourth,) in any ves

sel fishing on the coast, for the pur-
pose of instructing British mariners in
the art of fishing, or curing fish. And,
as respects the fisheries generally, the
prior Navigation Acts are saved from
this Act.

Of the qualifiinaster and

cations of the

seamen.

Of Merchant
Shipping and
Seamen.

a king's ship, and shall have obtained a certificate of faithful service and good behaviour from the commander, Of the qualifi- shall be deemed British seamen on taking the oath of

cations of the

master and

seamen.

Of the authority of the

master.

allegiance. 6. But the qualification in all cases, and by all persons, is forfeited by taking an oath of allegiance to a foreign power, except under the terms of a capitulation, and for such capitulation only. 7. No ship, however, is to become forfeited for the employment of an unqualified person, where such disqualification was unknown to the owners and master. 8. But in the seas of America or the West Indies negroes may be employed. 9. And, in the seas to the eastward of the Cape of Good Hope, Lascars, and other natives of the countries to the eastward of the Cape. 10. The ship and cargo are liable to forfeiture for any breach of these rules, in the same manner as if contraband. 11. But if a British vessel be in a foreign port, and have been compelled by necessity to engage a greater number of foreign seamen than allowed by law, such vessel shall not be liable to forfeiture, upon production of a certificate of such necessity from the British consul resident in such port; or, if there be no such consul, of two known British merchants there resident. 12. And, in the case of war, the king may publish a proclamation, by which he may allow British vessels to be manned with foreign seamen in the proportion of threefourths of the whole crew. Such are the qualifications required by law in masters and seamen.

9. As to the authority of the master to employ the ship, the general rule is, that the owners are bound by every lawful contract made by the master relative to the usual employment of the ship. The reason is, that the master is the agent and servant of the owners for the conduct, government, and controul of the ship in its usual way; and, therefore, all engagements by him for such usual employment are the acts and contracts of a servant within the subject matter of his commission. Therefore, if a master receive goods on board in the usual employment of the ship without the knowledge of the owner, the owner

will be liable for their loss to the freighter. But if the master take goods not in the usual employment of the vessel, the owner will not be liable. The distinction is, that in the one case he is a servant acting within his trust and commission; in the other, he is acting beyond it.

10. Upon the same principle, if the master (being in a foreign port) enter into a charter-party in his own name for the employment of the ship, the owners are bound by it; and the merchant may have an action on the case at common law for its faithful performance. And if the master make any particular engagement or warranty, such as that he will load or deliver within a certain time, the owners will be bound by such special contract, although made without their knowledge. In a word, the master is the confidential servant of the owners in all that concerns the usual and ordinary employment of the vessel, and his contract within this service is that of an acknowledged agent for a principal, and servant for a master. And what is the usual and ordinary employment of the ship is to be determined either by the course of its actual employment, or by that of vessels in the same trade or service.

11. But as the immediate act of the owner himself necessarily supersedes the authority of the servant; so if the owners have themselves made a special engagement for the employment of the ship, the master cannot of course annul it. In the absence of his owners, the master is their servant to act for them. In their presence, his duty is to obey.

12. It is another rule, that for the sake of the convenience of trade the master is himself liable upon his own contracts, and must indemnify himself from his owners. Those who contract with him for the ship have a two-fold remedy; one upon the master, and the other upon his owners: and sailors have a third security upon the ship itself, by a suit for wages in the court of Admiralty. Such, therefore, are the general principles of the authority of the master as respects the employment of the ship.

Of Merchant
Seamen.

Shipping and

Of the autho

rity of the

master.

Of Merchant
Shipping and
Seamen.

Of the authority of the

master.

13. The authority of the master to bind his owner for repairs and necessaries is a consequence from the same principle; such an authority being necessary for the preservation of the ship, and being legally presumed to be given, because absurd to be withholden. The master, therefore, is authorized to provide all necessaries for the ship. And such necessaries may be either repairs, stores, or money. For such necessaries the owner is liable. But the creditors generally must prove that such repairs or money were necessary; for if the owner should negative the existence of the necessity, his liability, except under peculiar circumstances, would cease.

14. The custom of merchants, and therein the law which adopts the custom, has introduced two modes of making such repairs, or taking up such money, by masters; the one, upon the personal credit of the owners; and the other, upon the hypothecation of the ship. If the repairs or money be made or taken on the personal credit of the owner, the owner, as above said, is liable; subject only to proof, under any suspicious circumstances, that the repairs were reasonably fit and proper, and that the money or stores were wanting.

15. But as the hypothecation of the ship is manifestly a better security than the mere personal credit of the master and owners, money and repairs in a foreign port are more usually secured by an instrument of this kind. It is unnecessary to add that the master has the authority to give hypothecation bonds, or bonds in the nature of bottomry, according to the necessity of the case; and that the ship is thus bound in specie to the repayment of the money lent. The master has this power, because it is necessary to the preservation of the ship, which, in foreign ports, where neither master nor owners were known, could not procure the necessary repairs upon personal credit. And the law of England has thus recognized and adopted it upon the double principle; first, of the custom by the law merchant; and, secondly, from its manifest necessity.

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