Hubbard. XXII. But if the ship of a country, at that time at peace with Tonteng v. our own sovereign, be hired by a British subject, but before sailing, or in the course of it, be detained by an embargo by the British government, such detention will not be such a restraint of princes. as shall give the master of the neutral any demand upon the British freighter for his loss by freight. A charter-party (a) was made between a British merchant and the master of a Swedish ship, by which it was agreed, that the ship should proceed with all convenient speed to the island of St. Michael, for a cargo of fruit; and return therewith to the port of London, restraint of princes and rulers during the voyage always excepted. In an action by the master against the merchant for not employing the ship in pursuance of this agreement, it appeared, that the vessel having sailed from London in commencement of her voyage, but being driven by storm into Ramsgate harbour, had there been detained by an embargo suddenly ordered by the British government, against all Swedish vessels; and had been detained under this embargo from the month of January till June, at which latter period the season for shipping fruit at St. Michael's was over. Upon an offer by the master to proceed on his voyage after the embargo had been removed, the merchant replied that the ship could not be loaded at St. Michael, the season for shipping fruit there being passed. The actual damage the plaintiffs sustained by the sailing on the voyage till the ship was driven back, by paying the sailors during the embargo, &c. amounted to 3971. 6s. 6d. for which they obtained a verdict, subject to the opinion of the court on a case stating the above facts. Lord Alvanley, C. J., in delivering the opinion of the court, said, that the defendant, having expressly dispensed with the plaintiff's proceeding to St. Michael's for the cargo as soon as the embargo was at an end, no objection could arise on the ground of his not having completed the voyage. But the ground of decision in this case was, that a British merchant is not liable to answer any damage arising from hostile embargoes by his own government on the vessels of foreign states. Upon this ground, therefore, judgment of nonsuit was ordered. (a) Touteng v. Hubbard, 3 B. & P. 291.-See likewise Isabella, Jacobina, 4 Rob. 77. 420 CHAPTER V. Signification of the terms primage, &c. Privilege regulated by the custom of trade. OF PRIMAGE, privilege, AVERAGE, AND PASSENGERS. Ir is a usual stipulation in charter-parties and bills of lading, that the delivery of the goods shall be made on the payment of freight with primage and average accustomed. The word "primage" signifies a small payment to the master for his care and trouble with respect to the goods, which he is to receive to his own use, unless he has otherwise agreed with his owners. This payment appears to be of very ancient date, and is variously regulated in different voyages and trades. It is sometimes called the master's hat-money. By the word average is signified several petty charges, which are to be borne partly by the ship, and partly by the cargo, such as the expense of towing, beaconage, &c. Primage and average are often commuted for a specific sum, or a certain per centage on the freight. I. Privilege is an allowance to the master of the same general nature with primage; being a compensation, or rather a gratuity, customary in certain trades; and which the law assumes to be a fair and equitable allowance, because the contract on both sides is made under the knowledge of such usage by the parties. If the existence of such privilege be questioned, the courts will enquire into it by the evidence of merchants. In an action by the owners against the captain of an East India ship, it was contended for the captain, that the stipulation of a sum in lieu of privilege and primage did not exclude him from the use of the cabin, customary in East India ships. (a) By the contract between the parties, he was to receive a certain sum in lieu of privilege and primage: but, under an alleged custom of trade, he had still retained a part of the cabin for himself, and employed it for carrying goods, for which he had received the freight. The owners brought the action for the amount of this freight; and contended that the (a) Birch v. Depeyster, 1 Starkie, 210. terms of the contract excluded all right on the part of the captain of primage and privilege. to use the cabin for the carriage of goods on his own account. The evidence offered for the defendant was chiefly a conversation between the plaintiff and himself, by which it appeared that both of them understood the term privilege in this qualified sense. Gibbs, C. J., admitted this evidence, upon the principle that the word privilege was a term of very indeterminate signification; that in general it must be taken to mean what the mercantile part of the nation understand it to be in their several trades; but that the parties in a particular contract might limit or enlarge this sense. The evidence being accordingly admitted, and on proving that privilege in the trade in question was always understood in the sense contended for by the captain, and was so understood by the parties in the action, the court accepted it in that signification, and the defendant had a verdict. passengers. II. The conveyance of passengers by merchant vessels is con- of the conOf nected with some important objects, both individual and mer- veyance of cantile. As respects the passengers themselves, it is a duty of humanity on the part of the Legislature to take due precaution against the avarice of masters and owners, and to provide that no greater number of passengers should be taken on board any vessel than the tonnage and stores of such vessel can accommodate with respect to health and necessary sustenance. As respects the merchant and freighter, it is equally necessary to provide, that their interests shall not be impaired or endangered by any connivancè between the master and crew in privately sharing the profits of passengers. And, as respects the public interests, as our statute book contains several laws against the emigration of artificers, and, of late years, against the ingress and residence of foreigners without licence, it is manifestly incumbent on the Legislature to secure the accomplishment of these objects of national policy; and, by providing for the notoriety of vessels bringing in, and taking out, passengers, to keep such importation always under the eye of the law. III. With these purposes several acts of parliament have been New passenger passed, (a) the principal of which, as constituting the present law act, 4 Geo. 4. of passengers, is the 4 Geo. 4. c. 84. c. 84. This act repeals all the preceding statutes; and enacts that from No foreign and after the first day of August one thousand eight hundred and vessel carrying (a) 43 Geo. 3. c. 56. 53 Geo. 3. c. 36. 56 Geo. 3. c. 83. 56 Geo. 3. c. 114. and 57 Geo. 3. c. 110. All these statutes are now repealed by passengers shall sail for any port out sons on board than one for every five tons' burthen, without special permission of the commissioners of the customs. twenty-three, no foreign ship or vessel carrying any passenger or of Europe, &c. passengers shall sail from any port or place in the United Kingwith more per- dom, to or for any port or place out of Europe, and not being within the Streights of Gibraltar, with more persons on board, including the master and crew, than one (whether children or adults) for every five tons' burthen of such ship or vessel (unless special permission shall be given for that purpose by the commissioners of his Majesty's customs, under such regulations and conditions as may appear to them expedient), under penalty of fifty pounds for every person exceeding such proportion, to be paid by the master or other person having or taking the charge or command of such ship or vessel. No British vessel carrying passengers shall sail with a greater num ber of persons said, without a licence from the commissioners of customs. Penalty 50%. IV. The next section proceeds to declare, that no British ship or vessel carrying any passenger or passengers shall sail from any port or place in the United Kingdom, to or for any port or place out of Europe, and not being within the Streights of Gibraltar, with more persons on board, including the master and crew, than one (whether children or adults) for every five tons of her burthen, without a licence under the hands and seals of the commissioners of his Majesty's customs, under the penalty of fifty pounds for every person exceeding such proportion, to be paid by the master or other person having or taking the charge or the proportion. command of such ship or vessel: provided always, that no such licence shall be granted for any ship or vessel to carry any greater number of persons, including the master and crew, than in the proportion of one adult person (or of two children under fourteen years of age, or of three children under seven years of age,) for every two tons of the burthen of such ship or vessel: provided also, that no such licence shall be granted for any ship or vessel which shall not have two decks, nor unless the height between such decks shall be five feet six inches at least. for each person exceeding Restriction as to licence. Number of persons permitted to be taken on board of vessels laden with goods for ex in proportion of one adult V. It is moreover declared to be unlawful for the master or other person having or taking the charge or command of any British or foreign ship or vessel, laden with goods and merchandize for exportation, which shall sail from any port or place portation to be in the United Kingdom to or for any port or place out of Europe, and not being within the Streights of Gibraltar, to receive or take on board a greater number of persons, including the master and crew, than in the proportion of one adult person, or of two children under fourteen years of age, or of three children under seven years of age, for every two tons of such merchant ship or vessel remaining unladen with goods and merchandize, under the penalty of fifty pounds, to be paid by the master or other person person to every two tons, &c. Penalty 50%. passengers. having or taking the charge or command of such ship or vessel. Apportionment That every integral space below the deck of every ship or vessel of space for the which shall have but one deck, or between the decks of any ship or vessel having more decks than one, such space being unoccupiedwith goods or merchandize, or with stores, provisions, water, or baggage, and being six feet in length, two feet six inches in breadth, and being of the whole of the height between decks, or being five feet six inches in height if there be only one deck, shall be deemed to be and shall be equivalent to two tons of such ship or vessel remaining unladen; and that in every such ship or vessel, whether laden with goods or merchandize for exportation or not, one such integral space shall be separately apportioned as the room or birth for every adult passenger, or for every two children under fourteen years of age, or for three children under seven years of age respectively: provided always, that if one bed be placed over another, so that each sleeping place shall not have the whole height between decks, or the full height of five feet six inches if there be only one deck, such further adjoining space in width, and not being less than five feet six inches in height, shall be given, as shall make the whole equal to two such spaces, or four tons to every two births. deemed to be according to registry. List of persons on board to be delivered to the VI. The statute next provides, that every British ship shall be Tonnage. deemed and taken to be of such tonnage or burthen as is described and set forth in the respective certificate of the registry; that the master or other person having or taking the charge or command of every British ship or vessel, having more persons on board, including the master and crew, than one for every five tons of the burthen of such ship or vessel, previously to his leaving the port collector. from whence he shall be bound, shall deliver to the collector and comptroller, or other principal officer of his Majesty's customs at such port, a list containing the full number of the crew, and also the number of the passengers, with their names, ages, and descriptions, and the places to which they are to be respectively conveyed, for the purpose of being registered at such port; and that no British ship shall be cleared out, unless the owner or owners, or the master or other person having or taking the charge or command thereof, shall have given bond to his Majesty, his heirs and successors, with two sufficient sureties, such bond to be without stamp, and to be taken by and left in the hands of the collector or comptroller, or other proper officer of the customs, in the port or place from whence such ship or vessel shall be cleared out, in an amount equal to the sum of twenty pounds for each passenger on board such ship or vessel, with condition that such ship or vessel Bond to be given that the vessel is sea worthy, and properly stored, &c. |