CHAPTER THE THIRD.

OF THE GENERAL DUTIES OF THE MASTER AND
OWNERS.

4.IN whatever way the contract for the conveyance of

merchandize be made, the master and owners are thereby bound to the performance of various duties of a general nature. I propose to treat of these duties in the present chapter, and shall consider them as they regard, FIRST, The preparation for the voyage; SECONDLY, The commencement; THIRDLY, The course; and, LASTLY, The completion of the voyage.

2. And, FIRST, as to the preparation for the [221] voyage.

The first duty is to provide a vessel tight and staunch, and furnished with all tackle and apparel necessary for the intended voyage (a). For if the merchant suffer loss or damage by reason of any insufficiency of these particulars at the outset of the voyage, he will be entitled to a recompense. An insufficiency in the furniture of the ship cannot easily be unknown to the master or owners but in the body there may be latent defects unknown to both. The French Ordinance directs, that if the merchant can prove, that the vessel, at the time of sailing, was incapable of performing the voyage, the master shall lose his freight, and pay the merchant his damages and interest (b). Valin, in his commentary on

(a) Emerigon, tom. 1. p. 373, 374, 375. Roccus, not. 19. 57. 69. Ordinance of Rotterdam, 2 Magens, p. 101. art. 124. Molloy, book 2.

ch. 2. sect. 10. Wellwood's Sea Laws, tit. 7. p. 22.

(b) Liv. 3. tit. 3. fret. art. 12.

this article, cites an observation of Weitson, "that the

punishment of the master in this case ought not to be CL thought too severe, because the master, by the nature ❝ of the contract of affreightment, is necessarily held to. "warrant that the ship is good, and perfectly in a con

dition to perform the voyage in question, under the "penalty of all expences, damages, and interest." And he himself adds that this is so, although before its departure the ship may have been visited according to the practice in France, and reported sufficient; because on

the visit the exterior parts only of the vessel [222] are surveyed, so that secret faults cannot be dis

covered, "for which by consequence," says he, "the owner or master remains always responsible; and "this the more justly, because he cannot be ignorant of "the bad state of the ship; but even if he be ignorant, he "must still answer, being necessarily bound to furnish "a ship good and capable of the voyage." Pothier (c), taking notice of this article, and of the commentary upon it, declares his own opinion (in conformity, as he observes, to the general principles of law established in his own treatise on the contract of letting to hire) to be, that if the ship has been visited and reported sufficient, the master or owner shall not be answerable for damages occasioned by a defect, which they did not, nor could know; but he agrees that they shall lose their freight.

(c) Traité de Charte-partie, num. 30. The author here refers to his own excellent Traité de Louage, part 2. ch. 1. sect. 4. par. 2. But it rather appears to me that the rules there laid down by himself, warrant the conclusion that in this instance the owner and master ought to be responsible for the loss. "Lorsque le locateur devoit

par sa profession être informé du "vice de la chose louée, il est tenu " de domage et intérêts du con "ducteur, sans qu'il soit besoin de "chercher, si effectivement il en "a eu connoissance ou non :" And he instances the cases of a cooper or shopkeeper letting casks made of bad wood,

It may be observed, however, that defects of this sort cannot exist, unless occasioned by the age or particular employment of the ship, or some accidental disaster that may have happened to it; all of which ought to be known to the owner, and ought to lead to an examination of the interior as well as exterior parts. And indeed this contract, although greatly par- [223] taking of the nature of the contract of letting to hire, is not precisely the same, but includes in itself a warranty beyond that, which is contained in the contract for letting to hire. In a charter-party the person who lets the ship covenants, that it is tight, staunch, and sufficient; if it is not so, the terms of the covenant are not complied with, and the ignorance of a covenantor can never excuse him. And with regard to a general ship, Chief Justice Holt, in his elaborate argument on the law of bailments, distinguishes the contract made for the carriage of goods from the contract of letting to hire; and speaking of the former, when made by a person in a public employment, says, "The law charges "the person (viz. common carrier, hoyman, master of

a ship) thus entrusted to carry goods, against all " events but acts of God and of the King's enemies;" so that a common carrier is an ensurer against all perils or losses not within the exception (d). And the contract of insurance properly so called, is clearly void, if the 'ship, at the commencement of the voyage, be not seaworthy, although the person who has effected the insurance, be ignorant of that circumstance (e). (1)

(d) Coggs v. Bernard, 2 Lord Raym. 909.

(e) Park on Insurance, ch. 11.

(1) In Putnam v. Wood. 3 Mass. Rep. 481, the Supreme Court held that, "it is the duty of the owner of a ship when he

Indeed in a case, in which it appeared that the owner of a lighter employed in conveying goods from a

quay at Hull to sloops in the dock, had together [224] with many other persons engaged in the same

business, given public notice, "that they would "not be answerable for any loss or damage, which "should happen to any cargo, which should be put on "board any of their vessels, unless such loss or dam<6 age should happen or be occasioned by want of ordi66 nary care and diligence in the master or crew of the "vessel; when and in such case they would pay to the "sufferers £.10 per centum upon such loss or damage, "so as the whole amount of such payment should not "exceed the value of the vessel on board whereof such "loss or damage should have happened, and the freight "of such vessel." "And they gave further notice, that

" charters her or puts her up for freight, to see that she is in a "suitable condition to transport her cargo in safety, and he is "to keep her in that condition, unless prevented by perils of "the seas, or unavoidable accidents. If the goods are lost by

reason of any defect in the vessel, whether latent or visible, * known or unknown, the owner is answerable to the freighter

upon the principle that he tacitly contracts that his vessel shall "be fit for the use, for which he employs her. This principle

governs not only in charter-parties and policies of insurance, but it is equally applicable in contracts of affreightment." If therefore during the voyage the vessel meets with an acci dent, it is the duty of the owner to see that she is put in complete repair at the next convenient port; if he does not he must abide the loss, for it is of the essence of his contract, that his vessel shall be able to receive, retain, and transport her cargo.

any merchant or other person desirous of having their "goods or merchandizes carried free of any risk, in respect of loss or damage, whether the same should happen from the act of God or otherwise, might have "the same so carried by entering into an agreement for "the payment of an extra freight proportionable to the "accepted responsibility, on application to them or their respective agents:" It was held that the owner was answerable to the full extent of the damage done to goods by reason of the leakiness and insufficiency of his lighter, although the merchant was acquainted with the notice before he sent the goods on board. In delivering the judgment of the Court on this occasion, the learned Chief Justice (Lord Ellenborough) said, "In every contract for the carriage of goods [225] "between a person holding himself forth as the

"owner of a lighter or vessel ready to carry goods for "hire, and the person putting goods on board or employing his vessel or lighter for that purpose, it is a "term of the contract on the part of the carrier or lighterman implied by law, that his vessel is tight, and fit "for the purpose or employment for which he offers " and holds it forth to the public: it is the very foun"dation and immediate substratum of the contract that it " is so the law presumes a promise to that effect on "the part of the carrier without any actual proof; and every reason of sound policy and public convenience "requires it should be so." And the Court considered the insufficiency of the lighter" as a personal neglect "of the owner, or more properly as a non-performance

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on his part of what he had undertaken to do, viz. to. LC provide a fit vessel for the purpose;" and thought it clear that the only object of the notice "was to limit