control of the ship. He is considered as master pro hac vice, and if any loss or injury be sustained in the navigation of the vessel

2 B. & Ad. 380. If he attempts to enter a port without a pilot, and without endeav ors to procure one, and a loss happens, the underwriters would not be responsible. It would be the fault of the master, and the owners would be liable. But if the loss happens at a point beyond which the pilot's service was necessary, it would be otherwise. M'Millan v. U. Ins. Co., Rice (S.C.), 248. A vessel is not seaworthy within the implied warranty, if she proceeds without one in navigating a river, where it is the custom to take on board a licensed pilot. If there be no such custom, the captain, mate, or other person, possessing the requisite skill, may act as pilot. Keeler v. Fireman's Ins. Co., 3 Hill, 250. In the case of Bolton and others v. American Insurance Company, tried before Ch. J. Jones, in the Superior Court of New York, in November, 1835, it was held, that in every well appointed port, where pilots were to be had, a vessel arriving upon pilot ground was bound to take a pilot, and the ground was to be approached carefully; and if in the night, the master was bound to hold out a light for a pilot, and to wait a reasonable time for one, and to approach one if he can do it with safety. If he attempted to enter the port without a pilot, or steered negligently or rashly in approaching the ground where it was unsafe to navigate without a pilot, and damages ensued, the underwriters would not be responsible for them. The duty of the master is the more imperative on the approach to New York, which is of dangerous access, as the channel is only a mile and a half wide between the bars, and the coast is lined with shifting sand-bars. In cases of great danger, as in the case of a storm, if the captain cannot wait with safety for a pilot, he must come in without one. The system of pilotage in New York is excellent. Branch pilots were formerly appointed by the governor and senate, and had to perform an apprenticeship of five years before they could become deputy pilots, and three years before they became branch or licensed pilots. They underwent examination before the wardens of the port, and gave security. See Laws of New York, February 19, 1819, c. 18, and particularly secs. 7 and 12; April 12, 1822, c. 196; April 16, 1830, c. 207; March 30, 1831, c. 93. In 1837, the statute laws of New York, relative to pilots, were redigested and essentially amended, and all former statutes repealed. A board of five commissioners was established for licensing, regulating, and governing pilots and deputy pilots, and they were clothed with large powers. Applicants for license were to be examined before the commissioners as to their fitness, skill, and character, and they were to enter into recognizances with sureties for the faithful execution of their trust. Laws of New York, 1837, c. 184. Further regulations were made, and the mode and rate of compensation for pilotage established, by the act of New York of April 12, 1838, c. 197. Fourteen pilots are directed to be appointed by the governor and senate, upon the recommendation of the board of wardens, for the channel of the East River, called Hell-gate. N. Y. R. S. 3d ed. i. 119. In England, the statute of 6 Geo. IV. c. 125, consolidated all the prior English laws, with respect to the licensing and employment of pilots; and an abridged view of its provisions is given in M'Culloch's Com. Dict. tit. Pilots. In Massachusetts, the law of pilotage is as well and carefully digested as anywhere else. The governor appoints the pilots for the several harbors and coasts of the state, under certain exceptions. Rev. Sts. c. 32; Smith v. Swift, 8 Met. 332. Every branch pilot may nominate his deputy pilots for the approbation of the governor, and they all give bond, with sureties, for their faithfulness. Revised Statutes of Massachusetts, part 1, tit. 12, c. 32. Every Boston pilot who offers his services to an inward bound ves sel, before she has passed a designated line, and they are not accepted, is neverthe16

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[241]

while under the charge of the pilot, he is answerable as strictly as if he were a common carrier, for his default, negligence, or

less entitled to full fees of pilotage. The master may pilot his own vessel into Boston harbor, but it is at the peril of the owners, and he must pay the pilotage fees, if a pilot seasonably offers his services. But, in such case, if he employs a person not authorized as a pilot, such person subjects himself to a penalty. Commonwealth v. Ricketson, 5 Met. 412; Martin v. Hilton, 9 Met. 371. The Revised Statutes of Massachusetts, of 1836, c. 32, contain their pilot regulations. The governor and council appoint the pilots for the state, with the exception of pilots for the harbors and ports of Boston, New Bedford, and Fairhaven, where special provisions for those harbors are made. The case of Martin v. Hilton contains a well-digested view of the statute law of Massachusetts on the subject. The pilot regulations in the other great commercial states are doubtless of the same efficient character, and the general commercial law on the subject applies equally to all the states. Though Congress may establish a system of pilotage in ports and harbors within the United States, and give the district courts jurisdiction of the same, yet they have not done it. In Georgia pilots are licensed by a permanent board of commissioners, and they are required to give bonds, with sureties, for the due execution of their duty, and to take a special oath in relation to the same; and the commissioners are to settle all disputes between pilots and masters of vessels, and with power to revoke licenses for incompetency, negligence, or misbehavior. Prince's Dig. 1837, 759; Hotchkiss's Code of Georgia Statute Laws, 1845, 279. The only congressional provision on the subject is contained in the act of Congress of August 7, 1789, c. 9, sec. 4, which still remains in force, and in which it is declared, that "All pilots in the bays, inlets, rivers, harbors, and ports of the United States, shall continue to be regulated in conformity with the existing laws of the states respectively wherein such pilots may be, or with such laws as the states may respectively thereafter enact for the purpose, until further legislative provision shall be made by Congress." The police regulations of ports and harbors, in respect to pilots, are left by Congress to the states. By a resolution of the legislature of New York, on the 10th of March, 1846, the members of Congress from the state were requested to endeavor to procure an act of Congress to regulate and establish the pilot system of the United States, and to give to each state the power to pass laws for the appointment and regulation of the pilots for themselves. Cognizance of the cases under state laws as to pilotage belongs at present to state courts. Marshall, C. J., in Gibbons v. Ogden, 9 Wheat. 207; The Schooner Wave v. Hyer, on appeal to the Circuit Court of the United States for the Southern District of New York, 2 Paine, [131]; Low v. Commissioners of Pilotage, R. M. Charlton (Ga.) 314. But in the case of Hobart v. Drogan, 10 Peters, 108, it was held, that suits for pilotage on the high seas and on tide waters were within the admiralty jurisdiction, and the state courts had only concurrent jurisdiction with the district courts in suits for pilotage. The act of Congress of 2d of March, 1837, c. 22, declared that it should be lawful for the master or commander of any vessel, coming into or going out of any port situate upon the waters which are the boundary between two states, to employ any pilot duly licensed or authorized by the laws of either state bounded upon said waters. Concurrently in point of time with this act of Congress, the statute of New Jersey was passed for establishing and regulating pilots for the ports of that state, within Sandy Hook. Elmer's Dig. 400. The ordinance of the city of Charleston, in S. C., of 1842, founded on state authority, respecting pilotage, declared that every coaster, or commander of any vessel, bearing towards the coast or harbor of Charleston, should pay a pilot-fee to the first pilot who should offer to

unskilfulness; and the owner would also be responsible to the party injured for the act of the pilot, as being the act of his agent. (b) Though some doubt had been raised by the dictum of Ch. J. Mansfield, in Bowcher v. Noidstrom, (c) yet the weight of authority and the better reason is, that the master, in such a case, would not be responsible as master, though on board, provided the crew acted in regular obedience to the pilot. (d)

go on board and take charge of the vessel, and the pilot-fee should be due and recoverable, even on refusal to receive on board a licensed pilot. All steamboats carrying United States mails, and all vessels trading between any of the ports of South Carolina, and wholly owned in the state, were declared to be exempted from pilotage. But this discrimination between coasters wholly owned in the state, and coasters owned in whole or in part in other states, and employed with the Carolina coasters, was declared void by the Court of Appeals, in the case of Chapman v. Miller, 2 Speer (S. C.), 769. It was in conflict with the act of Congress of 1793, regulating the coasting trade, and giving equal privileges to licensed coasting vessels of every state. The regulation of the coasting trade was a power vested exclusively in Congress, as being a regulation of commerce and navigation; and this doctrine was fully declared in Gibbons v. Ogden, in 9 Wheat. 1. The decision in South Carolina is perfectly sound and conclusive.

(b) Bussy v. Donaldson, 4 Dallas, 206; Huggett v. Montgomery, 5 Bos. & P. 446; Yates v. Brown, 8 Pick. 23; Pilot-boat Washington v. Ship Saluda, U. S. District Court, S. C., April, 1831; Williamson v. Price, 16 Martin (La.), 399; the Neptune the 2d, 1 Dods. 467. But in the case of the Agricola, 2 Wm. Rob. 10, it was considered (and certainly with good reason), that if the master of a vessel be bound to take a pilot, and a collision arises from the fault of the pilot, the owners are not responsible for his conduct. By the English statute law, as declared by their adju dications, the master or owner of a vessel trading to or from the port of Liverpool, is not answerable for damages occasioned by the fault of the pilot. Carruthers v. Sydebotham, 4 Maule & S. 77; The Maria, 1 Wm. Rob. 95; The Protector, ib. 45. (c) 1 Taunt. 568.

(d) In the case of the Portsmouth, 6 C. Rob. 317, n.; Snell v. Rich, 1 Johns. 305. By the statute of 6 Geo. IV. c. 125, sec. 53, owners and masters of ships are exempted whether the owner would be liable (7 Wall. 68, 70) on grounds stated ante, 138, n. 1. See, also, 218, n. 1.

1 Compulsory Pilot. — The ship has been held liable in such cases. The China, 7 Wall. 53; The Carolus, 2 Curtis, 69; Smith v. The Creole, 2 Wall. Jr. 485. In the latter case the pilot was employed under a statute which certainly seemed to make it a legal duty to take him on board, although the court treated it as optional, on the ground that what the statute called the "penalty" of paying half pilotage in case of failure to do so was really nothing more than the assessment of a tax for the support of the system. (Ante, i. 467, n. 1.) But perhaps The China, sup., leaves it still doubtful

In England it would seem that apart from statute the tendency is to exonerate the vessel. The Maria, 1 Wm. Rob. 95; The Annapolis, Johanna Stoll, Lush. 295, 312; post, 218, n. 1; The Halley, L. R. 2 P. C. 193, 201, 202, stated in a subsequent note, 232, n. 1 (c).

For other statutory exemptions besides those mentioned in note (d), when the employment of the pilot is compulsory, see the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104), § 388. But in order

(9) Authority and Duty of the Mate. The mate is the next officer to the master on board, and upon his death or absence, the mate succeeds, virtute officii, to the care of the ship and the government and management of the crew. He does not cease to be mate in such cases, but has thrown upon him cumulatively the duties of master. He is quasi master, with the same general powers and responsibilities, pro hac vice, and with the preservation of his character and privileges as mate. He may sue in the admiralty for his wages as mate, and is entitled in that character to be cured, if sick, at the expense of the ship. (e) The master, and even the consignees, may appoint a substitute in a foreign port, in cases of necessity. (f) Even a supercargo, in cases of necessity, and acting with reasonable discretion, may bind the owner. (g) 2. Of the Rights and Duties of Seamen. We come next to treat of the laws applicable to seamen; and it will appear, for obvious reasons, that in the codes of all commercial nations they are objects of great solicitude and of paternal care. They are usually a heedless, ignorant, audacious, but most useful class of men, exposed to constant hardships, perils, and oppression. From the nature of their employment, and their "home on the deep," they are necessarily excluded, in a great degree, from the benefits of civilization, and the comforts and charities of domestic life. Upon their own element they are habitually buffeted by winds and waves, and wrestling with tempests; and in time of war *177 they are exposed to the still fiercer elements of the human passions. In port they are the ready and the dreadful victims of temptation, fraud, and vice. (a) It becomes, therefore, from liability for any damage arising from the want of a licensed pilot, unless the want arose from a refusal to take one on board, or from wilful neglect in not using all due means to take one on board who may offer. He is equally exempted from the responsibility for the incapacity or defaults of the pilot.

*

(e) Read v. Chapman, Str. 937; Orne v. Townsend, 4 Mason, 548; The Brig George, 1 Sumner, 151; United States v. Taylor, 2 Sumner, 585; U. S. v. Roberts, 2 N. Y. Leg. Obs. 99.

(f) Pothier, Charte-Partie, n. 49; The Alexander, 1 Dods. 278.

(g) Forrestier v. Bordman, 1 Story, 43.

(a) The recklessness with which sailors dissipate their wages, and the facility with which they are cheated out of them, are proverbial; and those persons who have the

to entitle the owners to the benefit of the exemption from liability provided by the English statutes, it is not enough for them to prove that there was negligence on the part of the pilot; they must prove that

the damage for which it is sought to make them liable was occasioned exclusively by his default. The Iona, L. R. 1 P. C. 426 ; The Minna, L. R. 2 Ad. & Ec. 97.

a very interesting topic of inquiry, to see what protection the laws have thrown around such a houseless and helpless race of beings, and what special provisions have been made for their security and indemnity.

(1) Shipping Articles. The seamen employed in the merchant service are made subject to special regulations, prescribed by acts of Congress for their government and protection. (b) Shipping articles are contracts in writing, or in print, declaring the voyage and the term of time for which the seamen are shipped, and the rate of wages, and when the seamen are to render themselves on board; and the articles are to be signed by every seaman or mariner, on all voyages from the United States to a foreign port, and, in certain cases, to a port in another state, other than an adjoining one. (c) If there be no such contract, the master is bound to pay to every seaman who performs the Voyage the highest wages given at the port for a similar voyage, within the three next preceding months, besides forfeiting for every seaman a penalty of twenty dollars. The seamen are made subject to forfeitures if they do not render themselves on board according to the contract, or if they desert the service; and they are liable to summary imprisonment for desertion, and to be detained until the ship be ready to sail. (d) If the mate and a majority

superintendence of marine hospitals well know how severely and extensively sailors are afflicted, beyond all other classes of men, by those odious diseases which so terribly chastise licentious desire. Such a scourge is far worse to them than the storms and the monsters of the ocean; than either the præcipitem Africum decertantem aquilonibus, the rabiem noti, the monstra natantia, or the infames scopulos, acroceraunia. (b) Acts of the United States, 20th July, 1790, c. 29; 28th May, 1796, c. 36; 16th July, 1798, c. 94; 3d May, 1802, c. 51; 28th February, 1803; 2d March, 1805, c. 88; 3d March, 1813, c. 184; 19th June, 1813, c. 2; 2d March, 1819, c. 170; 3d March, 1829, c. 202; 20th July, 1840, c. 23.

(c) A foreign voyage, in the language of trade and commerce, means a voyage to some port or place within the territory of a foreign nation. The terminus of the voyage settles the description. In this view neither fishing nor whaling voyages are strictly foreign voyages. This is the sense in which foreign voyages are understood in the Duties Collection Act of 1799, c. 128, and in the acts of 1790, c. 56, and of 1813, c. 2, relative to shipping articles; and the above act of 1799 still constitutes the leading statute to regulate our commercial intercourse with foreign nations. Taber v. United States, C. C. U. S. for Mass. October, 1839; 1 Story, 1. The shipping contract in the whale fishery is universally reduced to writing, though such Voyages are not in terms within the statute. The New Bedford whalemen's shipping paper, Mr. Curtis says, (Treatise on the Rights and Duties of Merchant Seamen, 1841, p. 60,) is the best constructed instrument of the kind in use in the United States. (d) The authority given by the act of Congress of 20th July, 1790, to arrest