during the whole voyage, unless in case of sickness, death, desertion, or of the whole or part of the crew being taken prisoners in the voyage, and, in such case, the master or person having the charge or command of the vessel, shall specify the same in his report (7). [107] It is provided, however, that this Act shall not alter or affect any regulations for manning or navigating of ships employed in the fisheries, for which any special provision has been made by any statute in force (m). 6. And, in order to prevent doubts respecting the various terms made use of in the several laws of navigation, as to the persons who are to be deemed qualified to be masters of British ships, or to be British sailors, seamen, or mariners, it is by the same statute declared and enacted, that no person shall be deemed or taken to be qualified to be the master of a British ship, or to be a British sailor, seaman, or mariner, "except "the natural-born subjects of his Majesty, his heirs and "-successors, or persons naturalized by or by virtue of t any Act of Parliament, or made denizens by letters "of denization, or except persons, who have become "his Majesty's subjects by virtue of conquest or ces"sion of some newly-acquired country, and who shall "have taken the oath of allegiance to his Majesty, or "the oath of fidelity required by the treaty or capitu"lation, by which such newly-acquired country came "into his Majesty's possession, except as therein pro"vided (n)." 7. The same statute (0) confers a qualification to be thus employed upon foreign seamen, after three [108] years service in time of war on board any of (1) 34 Geo. 3. c. 68. s. 5. (n) 34 Geo. 3. c. 68. s. 6. his Majesty's ships, who shall obtain certificates of their faithful service and good behaviour from the commanders, or in case of their death, from the next in rank, and take the oath of allegiance. But (p) it also excludes from this capacity every person, however otherwise qualified, who, after he became qualified, has taken, or shall take, the oath of allegiance to any foreign sovereign or state, for any purpose, except under the terms of some capitulation upon a conquest by an enemy, and for the purpose of such capitulation only. But no ship or vessel shall be forfeited by reason of the employment of persons so disqualified, if the owners can shew that such disqualification of the master was unknown to them or their agents, and that such disqualification of a mariner was unknown both to them or their agents, and to the master. The statute, however, allows the employment as sailors, in the seas of America and the West Indies, of negroes belonging to persons qualified in the manner before-mentioned, if the conditions required by the statute 34 Geo. 3. c. 42. have been complied with, and in the seas to the eastward of the Cape of Good Hope, of Lascars and other natives of the countries to the eastward of that Cape. 8. And if any goods shall be imported or brought, exported, or carried coastwise, contrary to any of the provisions of this Act, the goods, vessel, [109] guns, and furniture, shall be forfeited: and if any vessel shall sail in ballast, or sail to be employed in fishing on the coast in the manner before-mentioned, or being required to be manned and navigated with a master and a certain proportion of British mariners in the manner before directed, shall not be manned and (p) 34 Geo. 3. c. 68. s. 8. navigated according to the provisions of this Act, the vessel, with her guns and furniture, and all the goods on board, shall be forfeited (q). And all goods and vessels forfeited by this Act may be seized by the commander of any of his Majesty's ships of war, or any commissioned, warrant, or petty officer, specially appointed by him, or any officer of the customs: the forfeiture to be recovered and applied in the same manner as any forfeiture incurred by any law respecting the revenue of the customs (r). And "in case any British "ship or vessel shall be found at sea, having on board a greater number of foreign mariners than is allowed "by this Act, or any law now in force, or hereafter to "be made, and the master of such ship or vessel shall "produce a certificate of the actual necessity of engag ❝ing such foreign mariners in some foreign port, [110]" by occasion of the sickness, death, or desertion "of the like number of British mariners, or of "the same having been taken prisoners during his voyแ age, and that British mariners could not be engaged "in such foreign port to supply their room, and that "for the safe navigation of such ship or vessel it became necessary to engage and employ such foreign mariners, (g) 34 Gea. 3. c. 68, 8. 10. (r) 34 Geo. 3. c. 68. s. 11. It has been decided on the construction of the Navigation Act, 12 Car. 2. e.18. s. 1. that by the seizure of a forfeited ship, the property of the owner is divested, and he cannot maintain an action of trespass against the party making the seizure, although the latter do not proceed to the condemnation of the ship. Wilkins v. Despard, 5 Ter. Rep. in K. B. 112.* But until seizure, no property vests in the party entitled to the forfeiture; and therefore a bona fide alienation of a ship liable to forfeiture, before such seizure, vests a title, which is good against W all the world. Per Winchester J. in the U. S. v. The Anthony Mangin. District Court of Maryland. 3 Cranch. Rep. 356. note. S. C. 2 Peters. Rep. 452. "under the hand of his Majesty's consul at the foreign port, where the said foreign mariners were so engag"ed, or, if there is not any such consul there, under "the hands of two known British merchants at such "foreign port, it shall not be lawful for any of the per sons authorized by this Act to make seizures of ships "or vessels navigated contrary to the directions of this "Act, to stop or detain any such ship or vessel so "found at sea, or to hinder her from proceeding on her voyage, but such persons shall and are hereby requir"ed to indorse the certificate so produced, testifying "the production thereof, and when and where met with "at sea, and that the number of foreign mariners cor"respond with the certificate of such British consul, or "such known British merchants, for the consideration "and investigation of the commissioners of his Majes"ty's customs in England and Scotland respectively (s).” 9. There is in this statute a proviso reserving to his Majesty the power of issuing such proclamation as he was authorized to make by a statute [111] passed in the last reign (t), which enables the King at all times, when it shall be found necessary to declare war against any foreign power, to publish a proclamation to permit all merchant ships and other trading vessels and privateers to be manned with foreign mariners and seamen during such war, "so as the num"ber of such foreign seamen or mariners do not exceed three-fourths of the mariners at any one time employ"ed to navigate such merchant ship, or other trading ship or vessel, or privateer, and that one-fourth at "least of the mariners or seamen so employed be at all "times natives, or his Majesty's naturalized subjects of (s) 34 Geo. 3. c. 68. s. 12. (t) 13 Geo. 2. c. 3. s. 1 & 4. "Great-Britain, sudden death, and the hazard and cas"ualties of war and the seas, saved and excepted." 10. Since the Union of Great-Britain and Ireland, regulations similar to those which I have just detailed, have been made by the Legislature with respect to the navigation of Irish ships by subjects of the United Kingdom (u). (1) (u) 42 Geo. 3. c. 61. sect. 1 to 15. CHAPTER THE SECOND. OF THE AUTHORITY OF THE MASTER WITH REGARD TO THE EMPLOYMENT OF THE SHIP. 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 (1) There is no statute of the U. S. prohibiting the employment of foreign seamen, or requiring any portion of the crew to be Americans. By the registry act, the master must be a citizen of the U. S., in order to preserve the rights vested by that act. |