PART THE SECOND.

OF THE PERSONS EMPLOYED IN THE NAVIGATION OF
MERCHANT SHIPS.

CHAPTER THE FIRST.

OF THE QUALIFICATIONS OF THE MASTER
AND MARINERS.

1. THE master of a ship is the person entrusted with

⚫ the care and management of it. His power and authority are so great, and the trust reposed in him is of so important a nature, that the greatest care and circumspection ought to be used by the owners in the choice and appointment of him. It appears by the language of the ancient sea-laws and ordinances, that the master was formerly in almost every instance a part-owner of the ship, and consequently interested in a twofold character in the faithful discharge of his duty. At present, it frequently happens that he has no property in the shipThe law of some countries requires a previous examination of the person to be appointed to this important office, in order to ascertain his nautical experience and skill in other countries, he is liable to be punished as a criminal, if, having undertaken the charge, he is found incompetent to the performance of it (a). [102] In this country the owners are, except in one

(a) See Cleirac on the first article of the laws of Oleron; French Ordinance, liv. 2. tit. 1. Du Capi

taine and Valin thereon. Hanseatic Ordinance of 1614. Tit. 3. Art. 1.

case, left to their own 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.

2. The excepted case, to which I have just alluded, arises out of one of the humane provisions made by the British Legislature for the regulation of the African slave trade, by which it is made unlawful "For any

person to become a master, or to take or have the "command or charge of any British ship or vessel

(which shall clear out from any port of this kingdom "to take on board or to convey slaves from the coast "of Africa, to any part beyond sea) at the time he "shall clear out from any port of Great Britain, for purchasing and conveying slaves from the coast of Africa, unless such master, or person taking or hav

ing the charge or command of any such ship or vessel, "shall have made oath, and delivered in to the collec"tor or other chief officer of the customs, at the port "where such ship or vessel shall clear out, a certificate "attested by the respective owner or owners of the ships 66 or vessels, in which he has formerly served, that he "has already served in such capacity, during one voyage, or shall have served as chief mate or "surgeon, during the whole of two voyages, or [103] "either as chief or other mate, during three $6 voyages, in purchasing and carrying slaves from the coast of Africa, under pain that such master, or other 66 person taking or having the charge or command of 66 any such ship or vessel, and also the owner or owners, "who shall hire or employ such person, shall for every

"such offence forfeit and pay the sum of five hundred "pounds (b)."

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

[104] 4. 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

(b) 39 Geo. 3. c. 80. 8. 23. The duration of this act is not limited. A provision to the same effect had been previously made in several temporary statutes, in some of. which, however, the words printed in Italics were omitted, but the Court of King's Bench put a construction on them, conformable to those words. Farmer v. Legg, 7 Ter. Rep. in K. B. 186. But to obviate the inconvenience that had arisen from the omission, a retrospective clause is introduced into the 37 Geo. 3. c. 104. s. 25. 38 Geo. 3. c. 88. s. 25. 39 Geo. 3. c. 80. s. 38. that no Policy of Insurance made before the passing of those acts respectively shall be void, nor the owners liable to any penalty "by "reason of any certificate required "and given by the owner or own"ers of the ship or vessel then a "bout to clear out and sail, or by "the owner or owners of some "other ship or vessel, in whose " employ the person then about to "sail had been formerly employed

"and sailed.” To which however, "the Statute 38 Geo. 3. adds, " SO

66

as always the matter contained "in the said affidavits so made or " to be made as aforesaid, shall be "true in substance and matter of "fact." And the 39 Geo. 3. adds, "Provided always, that the matter "contained in such affidavits of the "owner or owners, heretofore made "as aforesaid, shall have been, and "in such affidavits as shall here"after be made, shall be true in "substance and matter of fact." There seems to be a defect in each of these sections, as they leave the master liable to the penalty, which cannot have been intended. And there is a further inaccuracy in the last, as it mentions the affidavit of the owners, whereas the oath is to be taken by the master, and not by the owners.

(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.

the most part of them, to be of the people of the commonwealth (d).

The celebrated navigation Act, which passed immediately after the restoration, requires the master, and threefourths of the mariners, to be subjects of the King, wherever it requires a trading ship to be either English built or English owned (e). And by a statute passed in the following year, "the number of mariners is to be "accounted according to what they shall have been "during the whole voyage (ƒ).” These regulations, however, having been found inconvenient in time of war, several temporary (g) statutes have allowed, during such periods, the employment of three-fourths foreign

seamen; and the two first of those statutes con- [105] ferred 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.

5. By a statute passed in the thirty-fourth year of the present reign, it is enacted, that after the expiration of six months from the time that the conclusion of the war then existing, shall have been notified by proclamation or order of his Majesty in Council published in the London Gazette, (which was done on Tuesday the 27th of April, 1802), no goods shall be imported into, or exported, or shipped for exportation, from any port or place in the kingdom of Great Britain, or the islands of Guernsey, Jersey, Alderney, Sark, or Man, on board any vessel registered, or required to be registered, as a British vessel, unless such vessel be navigated by a

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

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

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

(g) 8 Anne, c. 39. 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.

master and three-fourths of the mariners at the least British subjects (h). And that no vessel registered, or required to be registered as a British vessel, in any of the ports of Great Britain, Guernsey, Jersey, or the Isle of Man, or of any of the colonies, plantations, islands, or territories belonging, or which may hereafter belong, to his Majesty, his heirs or successors, shall be navigated but by a master and three-fourths of the mariners at least British subjects, except as thereinafter is pro

vided (i). And that from the same period, no [106] goods shall be carried from any one port, member, creek, or place of Great Britain, or of the islands of Guernsey, Jersey, Alderney, Sark, or Man, to any other port, member, creek, or place of the same or of any of them, in any such vessel, nor shall any such vessel be permitted to sail in ballast from one of the said ports or creeks to another, nor shall any such vessel be permitted to sail from the ports or coasts of this kingdom or of the said islands, to be employed in fishing on the said coasts, unless such vessel be wholly and solely manned with and navigated by a master and mariners all British subjects; with a proviso however, authorizing four or more of the commissioners of the customs in England, and three or more in Scotland, to licence the employment of foreign mariners not exceed ing one-fourth in such vessel, in fishing on the coast of Great Britain, or of the said islands, for the purpose of instructing the British mariners in such vessel, in the art of fishing, or taking or curing fish (k). And whereever it is required by the same or any other Act, that the master and the whole, or any proportion of the mariners, shall be British subjects, they must be so (h) 34 Geo. 3. c. 68. s. 1 & 2. (k) 34 Geo. 3. c. 68. 8. 4, (i) 34 Geo. 3. c. 68. & 3.