Scotch law render part owners, in all cases, responsible in solido as partners, for repairs and necessary expenses relating to the ship, and incurred on the authority of the master, or ship's husband. But where a ship has been duly abandoned to separate insurers, they are not responsible for each other as partners, but each one is answerable for the previous expenses of the ship, ratably to the extent of his interest as an insurer, and no further. By the French law, the majority in interest of the owners control the rest, and in that way one part owner may govern the management of the ship, in opposition to the wishes of fifty other part owners, whose interests united are not equal to his. This control relates to the equipment and employment of the ship, and the minority must contribute ; but they cannot be compelled to contribute against their will for the cargo laden on board, though they will be entitled to their portion of the freight. If the part owners be equally divided on the subject, the opinion in favour of employing the ship prevails as being most favourable to the interests of navigation. Many of the foreign jurists contend, that even the opinion of the minority ought to prevail, if it be in favour of employing the ship on some foreign voyage. Emerigon, Ricard, Straccha, Kuricke, and Cleirac, are of that opinion; but Valin has given a very elaborate consideration to the subject, and he opposes it on grounds that are solid, and he is sustained by the provisions of the old ordinance, and of the new code. Boulay Patyd follows the opinion of Valin, and of the codes, and says, that the contrary doctrine would enable the minority to control the majority, contrary to the law of every association, and the plainest principles of justice. The majority

a Bladney v. Ritchie, 1 Stark. Rep. 338. Term Rep. 306. Bell's Com. vol. i. 520. 524.

Westerdell v. Dale, 7

b The United Insurance Company v. Scott, 1 Johns. Rep. 106.

c Ord. de la Marine, liv. 2, tit. 8, art. 5, tit. Des Propriétaires, and Valin's Com. ibid. tom. 1. 573-584. Code de Commerce, art.

d Cours de Droit Commercial Maritime, tom. 1, p. 339–347.

not only thus control the destination and equipment of the ship, but even a sale of her by them will bind the right of privileged creditors after the performance of one voyage by the purchaser, but not the other part owners."

The ship's husband may either be one of the part owners, or a stranger, and he is sometimes merely an agent for conducting the necessary measures on the return of the ship to port; but he may have a more general agency for conducting the affairs of the vessel in place of the owners, and his contracts, in the proper line of a ship's husband's duty, will bind the joint owners. His duty is, generally to see to the proper outfit of the vessel, as to equipment, provisions, and crew, and the regular documentary papers; and though he has the powers incidental and necessary to the trust, it is held, that he has no authority to insure for the owners, or bind them to the expenses of law suits."

The rights of tenancy in common among part owners, apply to the cargo, as well as to the ship, and they have not a community of interest, as partners, so as to enable one to dispose of the whole interest, and bind the rights of his co

tenants.c

a Boulay Paty, ub. sup. 351. Pardessus, tom. 2, p. 27, is, however, of opinion, that they are equally concluded with the creditors by the sale, after one voyage. If the ship be seized for the debt of one of the part owners, and the claim of the others be put in before judgment, the right only of the part owner can be sold; but if not until after judgment, the entire right to the ship is sold, and the other part owners reclaim their share of the proceeds. Boulay Paty, tom. 1. 227, 228.

b French v. Backhouse, 5 Burr. Rep. 2727. Bell v. Humphries, 2 Stark. Rep. 345. Campbell v. Stein, 6 Dow's Rep. 134. Bell's Commentaries, vol. i. 504.

c Jackson v. Robinson, 3 Mason's Rep. 138.

LECTURE XLVI.

OF THE PERSONS EMPLOYED IN THE NAVIGATION OF MERCHANTS' SHIPS.

(1.) Of the authority and duty of the master.

THE captain of a ship is an officer to whom great power, momentous interests, and enlarged discretion are necessarily confided, and the continental ordinances and jurists have, in a very special manner, required, that he should possess attainments suitable to the dignity and the vastness of his trust. He must be a person of experience and practical skill, as well as deeply initiated in the theory of the art of navigation. He is clothed with the power and discretion requisite to meet the unforseen and distressing vicissitudes of the voyage; and he ought to possess moral and intellectual, as well as business qualifications, of the first order. His authority at sea is necessarily summary, and often absolute, and if he chooses to perform his duties, or to exert his power, in a harsh, intemperate, or oppressive manner, he can seldom be resisted by physical or moral force. He must have the talent to command in the midst of danger, and courage and presence of mind to meet and surmount extraordinary perils. He must be able to dissipate fear, to calm disturbed minds, and inspire confidence, in the breasts of all who are under his charge. In tempests, as well as in battle, the commander of a ship "must give desperate commands; he must require instantaneous obedience." He must watch for the preservation of the health and comfort of the crew, as well as for the safety of the ship and cargo. It is necessary that he should maintain perfect order, and preserve the most exact discipline, un

der the guidance of justice, moderation, and good sense. Charged frequently with the sale of the cargo, and the reinvestment of the proceeds, he must be fitted to superadd the character of merchant to that of commander; and he ought to have a general knowledge of the marine law, and of the rights of belligerents, and the duties of neutrals, so as not to expose to unnecessary hazard the persons and property under his protection."

a Cleirac, in his Jugemens d'Oleron, ch. 1, says, that the title or master of a ship implies honour, experience, and morals; reverendum honorem sumit quisquis magistri nomen acceperit. The French ordinances of 1584, 1681, and 1725, and the ordinances of the Hanse Towns, of Bilboa, of Prussia, and Sweden, have all required the master to be previously examined and certified to be fit by his experience, capacity, and character. He was, formerly, when trade was constantly exposed to lawless rapacity, required to possess military, as well as ordinary nautical skill: omnibus privilegiis militaribus gaudet. Roccus de Navibus et Naulo, note 7. Emerigon, Traité des Ass. tom. 1. 192. Valin's Com. liv. 2, tit. Du Capitaine, passim. Jacobsen's Sea Laws, by Frick, b. 2, ch. 1. Boulay Paty, Cours de Droit Mar. tom. 1, 368, 376. 379. Repertoire de Jurisprudence, tit. Capitaine de Vaisseau Marchand.

The English writers go directly to the discussion of these subjects, which they handle dryly, and with mathematical precision; while the foreign, and especially the French jurists, not only rival their neighbours in the accuracy of their minute details of judicial proceedings, and practical rules, but they occasionally relieve the exhausted attention of the reader, by the vivacity of their descriptions, and the energy and eloquence of their reflections. It must be admitted, however, that the decisions of Lord Stowell are remarkable for taste and elegance, and they are particularly distinguished for the justness and force with which they describe the transcendent powers, and define the delicate and imperative duties of the master. And the duties of the master, and particularly the necessity of kind, decorous, and just conduct, on the part of the captain, to the passengers and crew under his charge, and the firm purpose with which courts of justice punish, in the shape of damages, every gross violation of such duties, are no where more forcibly stated, than in Chamberlain v. Chandler, 3 Mason's Rep. 242, in our American admiralty.