*and that as the freight could not be arrested at the suit of the bondholder, he could only proceed against the ship. Lord Stowell required the freight to be brought in, and decided that the ship and freight must be exhausted before resort was had to the cargo (1). "From this case," said Dr. Lushington, "it appears that where the bondholder has directly or by intendment of law, a lien on the freight or cargo, the owner of the one may have the aid of the Court of Admiralty to bring the other into contribution, and that the Court will apportion the liability between the two, and where there are several bonds; some binding the ship and freight, others the ship, freight, and cargo, that Court will marshal the assets, directing one claim to be satisfied from the cargo, and another from the ship and freight" (m).

It has been held also in that Court, that freight earned from sub-shippers of goods, by permission of the charterers of the whole ship, is liable to as against them in payment of a bottomry bond, given at the port of the charterers, for advances *subsequent to the charter-party (n).

(1) The Dowthorpe, 7 Jurist, 609, and see as to the extent to which freight has been considered incident to the ship, the cases of Leslie v. Guthrie, 1 Scott, p. 683, and Stephenson v. Dowson, 3 Beav.

342.

(m) The Trident, 1 Rob. 29.

(n) The Eliza, Weddell, 3 Hagg. Adm. Rep. 87.

19

OF THE BEHAVIOR OF MASTER AND MARINERS; AND HEREIN,

(Ss.)1. Of the Master's duty to his employers.

2. Of the duties of the Mariners. - Agreement between them and their employers. -5 & 6 Wm. 4, c. 19.

3. Of breaches of duty by the Mariners. - Desertion, Mutiny, Disobedience, &c.

4. Authority of Master to correct the Mariners. Mode of Correction. Redress at Common Law and in Admiral

ty, if correction excessive.

5. Of Crimes committed by Master and Mariners.

6. Regulations of Foreign Ordinances as to disposal of Ship's Provisions.

1. THE great trust reposed in the master by the owners, and the great authority which the law has vested in him, require on his part, and for his own sake, no less than for the interest of his employers, the utmost fidelity and attention. For if any injury or loss happen to the ship or cargo by reason of his negligence or misconduct, he is personally responsible for it; and although the merchant may elect to sue the owners, they will have a remedy against him to make good the damages, which they may be compelled to pay. So, if he make any particular engagement or warranty without a sufficient authority from his owners, although the owners may be answerable to the persons with whom he contracts, by reason of the general power belonging to his situation and character, he is in like manner responsible to the owners for the injury sustained by them in consequence of his acting beyond, or in violation of, the particular authority given to him (a). (1)

(a) Fletcher v. Braddick, 2 New Rep. Fenton v. Dublin Steam Packet

182.

Company, 1 P. & D. 103, ante, p. 56, and post, "Collision."

(1) The same doctrine is recognised in our law. In Stone v. Ketland, 1 Wash. Cir. R. 142, it was laid down as a rule, that a man, who undertook to navigate a ship, was pledged to his owners, and he and they to all the world, who might be affected, for his

He is bound also to employ his whole time and [† 168] attention in the service of his employers, and the performance of the duties of his particular character, and is not at liberty to enter into any engagement for his own bene

skill, care and attention. It is not sufficient, that he exercises his best judgment; he must possess competent skill as a commander. In Purviance v. Angus, 1 Dall. R. 180, the Court said, that it is a wrong position, that a master of a ship is not answerable for an error in judgment, but only for the fault of the heart in civil matters. Reasonable care, attention, prudence and fidelity, are expected from the master of a ship; and if any misfortune or mischief ensue from the want of them, either in himself or his mariners, he is responsible in a civil action. S. C. Bee's Adm. R. 369. In Talbot . The Commanders and Owners of Three Brigs, 1 Dall. R. 95, the responsibility of the owners for the default of the master for an illegal seizure upon the high seas was fully maintained. And in these latter cases, (which occurred during the revolutionary war,) the right to institute proceedings in the Admiralty by a suit in personam for torts on the high seas, against the master and owners, and by the latter over against the master, for the damages recovered against them for the master's default, was expressly decided. It is not the design of these notes, to enter into a consideration of the nature and extent of the Admiralty Jurisdiction over cases of tort, and damage on the high seas, either to persons or property, or to point out the circumstances, under which the responsibility of the owners has been held to apply. The learned reader will find many cases, where redress has been administered in cases of spoliation, collision, illegal seizure, and personal damage on the high seas, both on the instance and prize side of the Court, in the recent Admiralty Reports, some of which are referred to in a preceding note. (Page 131, note.) See also, Martens v. Ballard, Bee's Adm. R. 51; Slowcum v. Mayberry, 2 Wheaton, R. 1; The Apollon, 9 Wheaton, 362; Manro v. Almeida, 10 Wheaton, R. 473, 486; The Dundee, 1 Hagg. Adm. R. 109; The Marianna Flora, 11 Wheaton, R. 1; The Palmyra, 12 Wheaton, R. 1; Burke v. Trevitt, 1 Mason, R. 96; The Ruckers, 4 Rob. 73; The Agincourt, 1 Hagg. Adm. R. 261; The Enchantress, 1 Hagg. Adm. R. 395; Chamberlain v. Chandler, 3 Mason, R. 242. In this last case, the duties of the Master to Passengers is largely considered.

The owners of a ship, as well as the master, are responsible for the goods, which they have undertaken to carry, if stolen or embezzled by the crew, or by any other person, though there be no fault or negligence imputed to them. Shieffelin v. Harvey, 6 John. R. 170; Watkinson v. Laughton, 8 John. R. 213.

The responsibility of the owners for the acts of the master is not, however, universal; but is confined to cases within the scope of the authority confided to him. Reynolds v. Toppan, 15 Mass. R. 370; Ante, 127, note. They are not, therefore, liable for acts of piracy committed by him. Dios ₺. The Owners of the Revenge, 3 Wash. Cir. R. 262. See also, The Dundee, Hagg. Adm. R. 109, 113, 120; Bynk. Q. P. Jur. lib. 1, ch. 19, Duponceau's Translation, pp. 147, 153; { Ante, 127, note. > The owners of a ship may at their pleasure dismiss the master. Upon a general retainer for no particular voyage, they may dismiss him without any cause assigned, exactly as they may any other agent. But if he has been retained for any particular voyage, and has signed hills of lading, &c., he is certainly entitled to compensation, if he thereby incurs any loss, or sustains any damages, unless the dismission be for a sufficient cause. Montgomery v. Wharton, I Peters, Adm. R. 397; S. C. 1 Dall. R. 49; S. C. Bee's Adm. R. 388; 3 Kent, (5th ed.) 161, 162. >

Upon an application of a majority of part-owners, the Court of Admiralty will displace a master, even though he is a part-owner. The dispossession of a master is in its nature not an uncommon proceeding. All that the Court requires in cases, where the master is not an owner, is, that the majority of the proprietors should declare their disinclination to continue him in possession. In the case of a master, who is also a

fit, that may occupy any portion of his time in other concerns; and therefore, if he do so, and the price of such engagement happen to be paid into the hands of his owners, they may retain the money, and he cannot recover it from them. This is well illustrated by the following case : — The master of an English ship, being at Smyrna, entered into an agreement with the deputy commissary of an English army to let the ship to Government for six months; aud having stipulated that his owner should receive forty shillings per ton per month, he required that he himself should be allowed the usual primage; the conmissary refused to make any allowance by way of primage, the freight being so very high; but as he expected great assistance from the master's skill and activity in managing the transport service in that quarter, he agreed, that instead of primage, the master should be allowed one shilling per ton per month on the ship's tonnage. The ship remained in the Mediterranean under this contract for about nine months. The master might have obtained a cargo of merchandise at Smyrna, upon which he would be entitled to a primage of five per cent. on the freight. During the period of this engagement his personal exertions were of considerable benefit to the public service. The whole of the money was paid by Government into the hands of the owner, and the master brought an action against him to recover this allowance. The cause was tried before Lord Ellenborough, who said, "It is contended that a servant who has engaged to devote the whole of his time and attention to my concern, may hire out his services, or a part of them, to another! It would have been a different thing, if the owner had been suing for this money; but I am clearly of opinion, that at all events the present plaintiff has no right to it. Under this contract he must have been taken from superintending the defendant's ship; and I don't know how far it might go, if such earnings could be recovered in a court of justice. No man should be allowed to have an interest against his duty. I will assume that the plaintiff obtained as high a freight as possible for his owners, and that his services to Government were meritorious; still there would be no security in any department of life or business, if servants could legally let

part-owner, something more is required, before the Court will proceed to dispossess a person, who is also a proprietor of the vessel, and whose possession, therefore, the common law is upon general principles inclined to maintain. Some special reason is commonly stated, to induce the Court to interpose. The New Draper, 4 Rob. 287; The Johan & Siegmund, Edw. R. 242; The Sea Reuter, 1 Dodson, R. 22. But it rarely interferes in cases of foreign ships, to dispossess the master. Ibid.

themselves out in whole or in part. My opinion

upon the subject is quite decisive; and if it be [† 169] doubted, I beg that a bill of exceptions may be tendered "(b). No lawyer will doubt the correctness of this opinion. It was fit that the reader should be informed of it in the very forcible terms in which it was expressed.

Upon principles analogous to those which governed the decision in the case of Thompson v. Havilock, it was ruled by Lord Ellenborough, that a premium received by the master of a ship from the state of the exchange, in respect of a bill drawn by him upon his owners on the ship's account, belonged to the owners; although it was suggested that in practice the master was allowed to retain a profit of this kind for his own use (c).

There is one very important branch of the master's duty in time of war, which he should be most careful to observe: I allude to his conduct when sailing under convoy; for besides the civil responsibility that he may incur to his owners or freighters, by misbehavior in this respect, it may be expected that in any future war, statutes may again be enacted, similar to those which were passed during the late war, whereby he may be subjected to fine or imprisonment. And it is at all times his duty to communicate to his owners any occurrence which may lead to a suspicion or doubt, that his ship has sustained a damage, lest his owners should lose the benefit of an insurance which they may effect, and he thereby become answerable to them (d). (1)

(b) Thompson v. Havilock, 1 Camp. 527. Upon the recommendation of the Chief Justice, the owner consented to make the master some allowance in the nature of primage. But he could not

have insisted upon this.

(c) Diplock and others v. Blackburn, 3 Camp. 43.

(d) Gladstone v. King, 1 M. & S. 35.

(1) The conduct, which the master of a neutral ship is hound to observe in time of war, is a subject of great delicacy. It is a general principle, that the acts of the master at all events bind the owner of the ship, as much as if the act were committed by himself. The Vrow Judith, 1 Rob. 150, and the authorities cited in 2 Wheaton, R. Appendix, 37 to 40. But the acts of the master do not in general bind the owner of the cargo, unless he be the owner of the ship, or conusant of the intended violation of law, or the master be the agent of the owner of the cargo. Ibid.; The Imina, 3 Rob. 169; The Rosalie & Betty, 2 Rob. 343, 351; The Alexander, 4 Rob. 93; The Elsebe, 5 Rob. 173; 2 Wheaton, Rep. Appendix, 38, 39; The Marianna Flora, 11 Wheaton, R. 1, 57. There are, however, some cases, where the act of the master will bind the owners of the cargo, as well as of the ship. Such are resistance of the right of search, suppression or fraudulent destruction of papers, rescue by neutrals of a captured ship, &c.; The Elsebe, 5 Rob. 173; The Despatch, 3 Rob. 279; The Nereide, 9 Cranch, 388, 451; The Fanny, 1 Dodson, 443. And in all cases where the master is the agent or consignee of the cargo, his act will bind the owner exactly as that of any other agent or consignee. The Vrow Judith, 1 Rob. 150; The St. Nicholas, 1 Wheaton, 417; Phoenix Insurance