BOOK THE FIRST.

OF THE ORIGIN, THE PROPERTY, and the REQUISITE DOCUMENTS OF PROPERTY IN VESSELS.

CHAPTER I.

OF THE BUILDING OF VESSELS, AND THE NECESSARY CON-
TRACTS AND PAPERS.

Books of General Reference.

STYPMANN Jus Maritimum.

LOCCENIUS de jure Maritimo et Navali.

The former in the 3rd and 4th part, the latter in the 2nd chapter, (but more concisely) have collated all that the Roman jurisprudence contains upon the subject.

Il Consolato del Mare Colla SPIEGAZIONE DI CASAREGI, Venezia, 1737.

That part of the work of this celebrated lawyer, which is the subject of this chapter, will be found as perspicuous and satisfactory, as is the remainder of his valuable treatise.

Ponderazioni sopra la contrattazione marittima, dal DOTTISSIMO CARLO TARGA-Genova, 1750.

This Work in the 7th chapter, treats concisely of the principles of the Consolato combined with the principles of the Roman law.

(a) TRADING vessels, properly so called, to the exclusion of·

the smaller craft, are the proposed subject of this work-To the term vessel generally, we affix but a very indefinite idea; originating, in the infancy of commerce, from L. I. §, 6. D. de exercitoria actione, in which all vessels are termed ships; and

(a) Röding's Marine Lexicon, word Shiff.

this want of precision still prevails in the law, and among its professors. (). In future wars, if private commissions should still unfortunately be thought expedient, it were desirable to define with certainty, from what description of vessels SHIPSPAPERS ought to be required. The English, in some adjudications of prize, for instance on the blockade of the Elb-shoals, have undertaken to declare vessels free, or prize, according to their tonnage and square rigging; and this practice is certainly the most defensible. Other cases advert to the decks.

Among the ancients, shipbuilding was considered a secret art. An alien who built a ship in the Roman empire was thereby entitled to citizenship; and for a time, to instruct an alien in the art, was prohibited under pain of death. while the Hanstowns enjoyed the carrying trade, a foreigner was prohibited from building vessels among them, on his own

account.

So,

At the present day, the case is different; aliens are permitted in all countries to build ships on their own account. Where they are built by contract, the bulk, structure, &c. are set out with the necessary certainty, and in case of disagreement, such contract is the strict law, between the parties. It is a contract locati conducti; and in general the principles attached to that species of contracts, apply here. (c)

In this contract (called Mählbrief) [1] are specified :

1. The denomination and size of the vessel; the length, breadth and height; the description and quality of materials; with the

(b) Stypman, pars III. cap, 148..Straccha, pars I—2.—Casaregis, Discr.

I-29.

(c) Der Wohlinstruirter Shiffer App. XXIX; and Targa cap. viii, pag. 11.

(1) We can find in our own language no term adapted to the German Mählbrief. Röding, in his Marine Lexicon, applies the word to the contract here spoken of; but names no other in the language of other maritime nations, that corresponds with it. We are therefore to conclude, that the name of this contract for building is confined to the German language.

reservation generally that the contractor or his representative, who is in most cases the master of a vessel, may reject such as he deems uncontract-worthy, and oblige the builder to supply other materials.

Various codes of maritime law have attached a penalty, to the delivery of a vessel under the dimensions contracted for. The Consolato del Mare determines, that the builder shall pay one half the cost of the enlargement, beside the wages, for the time consumed in the work. (d)

The Swedish maritime law imposes a penalty of three dollars for every last, (1) that is not built according to contract. (e) Similar provisions are found in other maritime laws.

The ship builder who has himself contracted to build the vessel, cannot without the consent of the owner, substitute another in his place.

"Among artists there is a wide difference with regard to the genius, the natural talents, the acquirements, and the practice of each." Thus the Roman law in regard to this subject. (f)

The owner after having engaged for the work, cannot discharge the ship builder, but upon sufficient reasons assigned. (g) But if he do not understand the work he has undertaken, he may be discharged, and another substituted.

If ship carpenters undertake work, to which they are incompetent, they are bound to indemnify the contracting party for all costs and damages, occasioned by their default, in the same manner, says the Consulate, as if they had deceived or defrauded him.

We recollect no law, with the exception of the Swedish as stated, where a distinct penalty is attached to the delivery of a

(d) Cap. 50.

(e) Part III, cap. 1.

(f) L. 31. D. de solutionibus et liberationibus.

(g) Consulate 51.

(1) It will be seen hereafter, that the last, in the northern continental ports, is the general standard in determining the burthen of the vessel; it is rated equal to two tons.

vessel smaller than the contract specifies. Reparation in damages is to be obtained under the general principles of the law of contracts alone; however desirable it might be that the circuity, and uncertainty of the remedy should in these cases be avoided. A stated sum, as in the Swedish law, from the variable value of money, both in regard to time and place, is ill adapted to the case; wherefore, a condition of reference to skilful men, in the event of disagreement between the parties, might be among the most salutary clauses, in the contract.

2. Further, the time when the vessel is to be completed and ready for delivery. In this respect it is advisable to attach a penalty to the contract, in case of default. If such penalty is not in all cases equal to the protracted profit (lucrum cessans) of the owner, yet the builder can rarely have an interest in the delay equivalent to the forfeiture, unless perhaps he himself be a ship owner.

The Consulate (h) is very express upon this point; and declares the ship builder bound to indemnify the owners, with interest; and the latter are themselves authorized to compute their loss and damages upon oath. As before remarked, we hold a choice of competent men, and their award, the most effectual method of quieting all discussions of this nature.

Whatever appertains to the completion of the ship, cannot be too fully set out in the contract.

7. A. Gerkens, of Hamburg, contracted with a certain De Fager to deliver, on the water, in complete order, a new vessel, for which he obligated himself to find and deliver every thing that had not been named in the contract, of a proper proportion, and of the best workmanship; together with spikes, nails, pitch and tow, as the owner should require. He delivered the vessel and demanded a further compensation on account of the rise of wages, which he obtained; and the contract generally was discharged. Hereupon he brought a claim for work and labour done to the masts, and for new anchor-stocks, as not

(h) Chap. 52.

belonging necessarily to the work of a shipcarpenter. The defendant protected himself under the contract; and it was decreed by the Prætor of Hamburg, June 1797, that the defendant must shew, that the alleged work belonged to that, which the plaintiff had made himself liable to perform under the contract produced.

3. The time and manner of payment. As it is important to the commercial community on the one hand, that ships should be completed by the builder bona fide, so on the other hand it is incumbent on the owner to fulfil his engagements by prompt payments at the stipulated terms. It is not sufficient that the law, in this particular, secures to the builder a summary remedy; but considering the use of the wharves, the purchase of timber at the proper seasons, and other matters which involve the credit and engagements of the ship-builder, the default in payment at the terms, should be subjected to some penalty, or obviated by the security of a third person. The usual terms of payment are :

When the keel is stretched,

When the beams are laid,

When the ship is launched, and

When the rudder is hung.

The right of the ship-builder or the owner to raise money on bottomry interest, in default of payments, cannot be too clearly defined in the law.

The Swedish maritime law determines, (i) that where a party is in default of payment at the term agreed upon, the ship-builder, or the other owners, are at liberty to advance the money at one per cent. per month. Such advance must be refunded within four months after an account exhibited; and if not paid at the expiration thereof, the share of such party is to remain hypothecated for the amount estimated by six disinterested persons, indifferently chosen between the parties.

(i) 3d sect. 3d chap.