permit judgment to go on the separate claim of the one, he cannot subsequently plead it to the separate claims of the others; because the party to the first suit has no longer any matter of complaint. In the case, however, of an action for the freight of goods, conveyed in a general ship, the demand for the freight must be made by them, in a joint action; unless one part-owner may have obtained his share of the freight, or have released his claim to it. In most ports, such freight is collected by brokers. And on the other hand, if an action is to be brought against the part-owners, upon any contract relating to the ship, it must be brought against all jointly, and not against separate owners. If all are, however, not sued, and the defendant does not avail himself of it in abatement, judgment will go against him for the whole sum, and he must claim contribution from the other partThe Roman law, (now, however, inapplicable,) gives an action upon the contract of the master, against any one partowner to the full extent of the claim; but upon the contract of the part-owners themselves, only against each in proportion to his share in the ship. (c) In Holland, part owners can only be sued for the amount of their proportions, because, says Grotius, (d) if they thus incurred indefinite responsibilities, they would be cautious how they engaged in a concern of part-ownership. owners. In countries where the management of the whole is undertaken by one, who acts for the collective concern, this subject cannot properly be brought in question, and in cases which might occur, would be governed by this principle of maritime law that each was bound, by the acts of the master only, to the extent of his share in the ship, and his interest in the freight. The Bremen ship Vesta, Baetger master, was bound from New-York, to Hamburg, or Tönning. In the autumn of 1809, near the heights of Heligoland, the master sent a person on shore for information, and to obtain a pilot; but put off from the island, for the Eider, without taking one. At the mouth of the (c) L. 1. page 25 D. de exercitatoria actione. 1. 2. 3. & 4. Vinnius ad Peckenium. (d) L. 2. tit. 2. art. 17. de jure belli et pacis. Chap. 3. OF THE DOCUMENTS. 47 Eider he was captured by an English cruizer, and carried into England; but the ship and cargo were there restored; as, however, Tönning was blockaded, and Hamburg not a free port, he was compelled to remain in England. The freighters hereupon claimed of the owners, indemnity for the cargo for an alleged breach of the Berlin and Milan decrees; the defendants urged in defence, the necessity of the case, vis major. As the president of the Pilot Board, however, was of the opinion that the master would have been compelled to enter the Eider, the Cour Imperiale in Hamburg (Jan. 1813,) declared it a breach of the above decrees; and adjudged, that the owners were civiliter responsible for the fault of the master; and should indemnify the shippers for the amount of the cargo, at the Hamburg prices of November, 1809, with damages and interest; or, at their election, abandon the ship and freight. After various objections in arrest, they chose to abandonThe shippers dissented; because, in the meantime, the ship was condemned in England, on account of goods which were taken covertly out of the vessel, and smuggled on shore; and they insisted, according to the civil law, that when of two things to be performed, the one is impossible, the other must be done. The owners, who alleged that according to all the late maritime laws their fortune de terre could not be compromitted; and that in an abandonment the value of the thing abandoned, could not be brought in question, were held to no more than the conclusive abandonment already made. A ship destined from Bordeaux to Rotterdam, arrived at evening before Goree, and in attempting to run in without a pilot, ran upon the strand, and was there compelled to discharge the cargo, which was partly injured. The shippers laid claim to the ship, as far as she would cover their costs and damages. They maintained that the master should have returned to sea at evening, and not have attempted to run in without a pilot; and should have had two cables instead of one; that he had thus erred, commissione et omissione, by doing too much, and too lit tle. The Dutch senate decreed restitution, to the amount of the value of the ship. (e) It is a question whether any debts, which the master may have contracted, fall to the charge of the owner when he abandons ship and freight-Valin affirms that he is accountable for pilotage, (f) and other debts of alike nature that may be in arrear; for upon the inviolability of such claims the security of navigation depends. In the second chapter of the fourth book we shall have occasion to return to this subject. At the meeting, in which the closing accounts of the master are revised, the attendance of all the part-owners is required by the maritime codes of many countries, under a penalty. (g) (e) Bynkerschöck Quaestionis juris privati, 1 4. c. 23. pag. 714. (f) Commentaire sur l'Ordonnance de la marine, 1. 2. tit. 8. art. 2. (g) Swedishes Seerecht, 3.-3.-1.-Hanseatishes, 12.-1. CHAPTER IV. PAPERS APPERTAINING TO THE VESSEL; WITHOUT REFERENCE TO A CONTEMPLATED VOYAGE. Books of General Reference. The Law of Shipping and Navigation, by JOHN REEVES, ESQ. London, 1807. This work furnishes a sketch of the English commercial law, from the time of Edward III, to the year 1806; and is the principal reference on the subject of the ship's register. In the Laws of the United States of America; Philadelphia, 1796; 3 volumes. Are comprised the American system of registry. The Code des Douanes de l'Empire Francais, par DUJARDIN SAILLY: Paris, 1810. Contains the French system. IN the introduction to an earlier work upon the maritime laws of Great Britain and France, where we had occasion to speak of the ships' papers, we termed those among them original papers which usually, and, by some laws, are always required to be on board the vessel, whatever be the nature of the voyage. In the work alluded to, we classed all the ships papers necessarily required on board of the vessel into 1. Original papers, (Stamm-papiere.) 3. Voyage papers of the crew, and 4. Voyage papers of the cargo. And in the reviews of our work we have never observed that this classification has been censured-We shall therefore pursue it here; reserving the three last for the following books. In treaties, (h) as well as in all the laws as well as in all the laws upon this subject, much confusion and doubt prevails; because, by most of these treaties and laws it is easily perceived, that the agents employed, were not the least conversant with the subject of ship's papers generally. They knew, perhaps, at most, if they knew at all, what papers were required by the laws of their own country; and in prize regulations, for instance, dictated a list of papers for the whole commercial world, according to the laws of their own country, regardless of the laws of any other. England, in this respect, furnishes a laudable exception, having never designated such list of papers, in any of her prize acts-Sweden also, in her Reglement of July 8th, 1788, relative to prize, designates no particular set of papers-This unhappy state of things, which, in the various maritime wars of the later periods particularly, in the time of the Directory, has been the cause of so many captures, and of so much chicanery and absurdity, cannot be of long duration; and the greatest blessing which the commercial (h) E. G. In the treaty between Denmark and France of the 23d August, 1742, in § 28; the principle of free ships, free goods, is stipulated; and in the form of passports attached to the same treaty we find a clause, which is copied from a treaty with England, resting upon principles entirely different, in serted in direct opposition to it. It provides, namely, that the ship's cargo ad subditos nostros aut ALIOS NEUTRALUM PARTIUM homines TANTUM spectant. It might perhaps be found an useful labour to exhibit the difference between the treaties of republicks, and those of monarchies, in relation to the perspicuity of their contents, and the relative information and capacity of the commissioners engaged; that, in concluding treaties, sovereigns might in future perceive the necessity of consulting men of talents, rather than, as heretofore, those of rank and influence alone. |