2. Of Engineers. By that Act also the provisions we have just considered are extended to engineers, respecting whom it is further provided that engineers' certificates shall be of two grades, first class, and second class, and that on and after the first day of June, 1863, every steam ship which is required by the principal Act to have a master possessing a certificate from the Board of Trade, shall also have an engineer or engineers possessing a certificate or certificates from the Board of Trade as follows; that is to say, Every foreign-going steam ship of 100 nominal horse-power or upwards shall have two certificated engineers, the first possessing a "first-class engineer's certificate," and the second possessing a "second-class engineer's certificate," or a certificate of the higher grade: Every foreigngoing steam ship of less than 100 nominal horse-power shall have an engineer possessing a "second-class engineer's certificate," or a certificate of the higher grade: Every sea-going home-trade passenger steam ship shall have an engineer possessing a "secondclass engineer's certificate," or a certificate of the higher grade: And every person who, having been engaged to serve in any of the above capacities in any such steam ship as aforesaid, goes to sea in that capacity without being at the time entitled to and possessed of such certificate as is required by this section, and every person who employs any person in any of the above capacities in such ship without ascertaining that he is at the time entitled to and possessed of such certificate as is required by this section, shall for each such offence incur a penalty not exceeding 501. For the provisions relating to the examination for engineers' certificates (w); the fees to be paid by applicants for examination (x); the certificates of competency to be granted to those who pass (y); the delivery of certificates of service on proof of certain service (≈) ; and the power of the Board of Trade and Local Marine Board to institute investigations into the conduct of any certificated engineer whom it has reason to believe unfit from incompetency or misconduct to discharge his duties (a), the reader is referred to the Act. The declaration required to be given by the engineer surveyor of every passenger steamer (b), under section 309 of the 17 & 18 Vict. c. 104, must, in the case of a ship by this Act required to have a certificated engineer, contain a statement that the certificate of the engineer of such ship is such and in such state as this Act requires. (u) 25 & 26 Vict. c. 63, s. 6, post. (x) Sect. 7. (y) Sect. 8. (z) 25 & 26 Vict. c. 63, s. 9, post. (b) Sect. 12. H 3. Of Mariners. The other persons employed in the ordinary navigation of a trading ship, fall under the general denomination of mariners and seamen, For the employment of a British ship, it was, until the session of Parliament A. D. 1853, necessary that the master, and a certain proportion of the mariners, should in many cases be British subjects. So long ago as the reign of Queen Elizabeth, it was made unlawful to lade or carry any fish, victual, or other things in any bottom, whereof a stranger born was ship-master, from one part of the realm to another (c). An ordinance made in the time of the Usurpation required, in some particular cases, the master and mariners, or the most part of them, to be of the people of the Commonwealth (d). The celebrated Navigation Act, which passed immediately after the Restoration, required the master and three-fourths of the mariners to be subjects of the King, wherever it required a trading ship to be either English-built or English-owned (e); and by a statute passed in the following year, "the number of mariners was to be accounted according to what they should have been during the whole voyage" (f). These regulations, however, having been found inconvenient in time of war, several temporary statutes (g) allowed, during such periods, the employment of three-fourths foreign seamen; and the two first of those statutes conferred the privileges of British subjects upon foreign seamen after two years' service in the time of war, either on board a ship of war, or a merchant or trading vessel. This subject was further regulated by a statute passed in the thirty-fourth year of the reign of George the Third, as to Great Britain (h); and by another statute passed in the forty-second of the same reign, as to Ireland (i). But that statute, and all others relating to the subject, having been repealed in the sixth year of the reign of King George the Fourth, it was, by a statute of that year, and subsequently by the 3 & 4 Will. 4, c. 54, the 8 & 9 Vict. c. 88, and the 12 & 13 Vict. c. 29, enacted, that no ship should be admitted to be a British ship, unless duly registered and navigated as such; and that every British registered ship (so long as the registry of such ship should be in force, or the certificate of such register retained for the use of such ship) should be navigated during the whole of every voyage (whether with a cargo or in ballast), in every part of the world, by a master who is a British subject, and by a crew whereof three-fourths at least are British seamen; and if such ship be employed (c) 5 Eliz. c. 5, s. 8, under forfeiture of the goods. To which the ordinance of the 9th of October, 1651, and the Navigation Act, add also the forfeiture of the vessel. (d) Ordinance of the 9th of October, 1651, Scobell's Acts. (e) 12 Car. 2, c. 18. See Reeves' Law of Shipping and Navigation, pp. 304, 305. (f) 13 & 14 Car. 2, c. 11, s. 6. (g) 6 Anne, c. 37; 13 Geo. 2, c. 3; 28 Geo. 2, c. 16; 19 Geo. 3, c. 14; 33 Geo. 3, c. 26; 43 Geo. 3, c. 64. (h) 34 Geo. 3, c. 68. in a coasting voyage from one part of the United Kingdom to another, or in a voyage between the United Kingdom and the islands of Guernsey, Jersey, Alderney, Sark, or Man; or from one of the said. islands to another of them, or be employed in fishing on the coasts of the United Kingdom, or any of the said islands, then the whole of the crew shall be British seamen (k). And it was further enacted, that no person should be qualified to be master of a British ship, or to be a British seaman, within the meaning of the Act, except natural-born subjects of Her Majesty, or persons naturalized by Act of Parliament, or act of some British colonial legislative authority, or made denizens, or who have become British subjects by virtue of conquest, or cession of some newly-acquired country, who should have taken the oath of allegiance, or the oath of fidelity required by the treaty or capitulation; Asiatic sailors or Lascars, being natives of any of the places within the limits of the charter of the East India Company, and under the government of Her Majesty, or the said company; and persons who had served on board some of Her Majesty's ships of war, in time of war, for the space of three years. But the 12 & 13 Vict., which required every British ship to be navigated by a master who is a British subject, and by a crew of whom the whole, or such proportion as therein mentioned, are British subjects, has been repealed (). Foreign ships carrying goods or passengers are now subject to the exercise by Her Majesty of the same powers (m), in respect of them, as she may exercise in respect of foreign ships employed in the over-sea trade, and to the same laws and regulations as British ships admitted to the coasting trade of the United Kingdom, to the trade of the Channel Islands (n), and between them and the United Kingdom; and there is no restraint on the employment of foreigners in British ships. (k) 8 & 9 Vict. c. 88, s. 18; 12 & 13 Vict. c. 29. (2) 16 & 17 Vict. c. 131, s. 31; 17 & 18 Vict. c. 120. (m) 16 & 17 Vict. c. 107. CHAPTER II. OF THE AUTHORITY OF THE MASTER WITH REGARD TO THE EMPLOYMENT OF THE SHIP; AND HEREIN, SECT. 1. Of the different kinds of Contract under which Merchant Ships are employed p. 100. 2. Owners of Ships are bound by Contracts of the Master, relative to the usual course of the Ship's Employment, p. 100. 3. Cases upon this Subject, p. 103. 4. Master's authority, when limited, p. 106. 5. Ground of the Liability of Owners on the Contracts of the Master, p. 106. 1. Of the different kinds of Contract under which Merchant Ships are employed. A TRADING ship is employed by virtue of two distinct species of contract: First. The contract by which an entire ship, or at least the principal part thereof, is let for a determined voyage to one or more places. This is usually done by a written instrument, signed and sealed, and called a charter-party. Secondly. The contract by which the master or owners of a ship destined on a particular voyage engage separately, with a number of persons unconnected with each other, to convey their respective goods to the place of the ship's destination. A ship employed in this manner is usually called a general ship. The nature of each of these contracts will form the subject of particular discussion hereafter (a). In the present chapter it is proposed to consider only the power of the master to bind the owner of the ship by these engagements (b). 2. Owners of Ships are bound by Contracts of the Master, relative to the usual course of the Ship's Employment. The owners rarely navigate a trading ship by themselves; the conduct and management of it are almost always entrusted to the master, whether he has or has not a partial property in it. In the (a) Part 4, ch. 1, 2, 3, 4. (b) Now perhaps more frequently by a written instrument not under seal, called a Memorandum of Charter, latter case he is the confidential servant or agent of the owners at large; in the former, of his copartners. In either case, by the law of England, and in conformity to the rules and maxims of that law in analogous cases, the owners are bound to the performance of every lawful contract made by him relative to the usual employment of the ship. They are bound to this performance by reason of their employment of the ship and of the profit derived by them from that employment (c). One part-owner, who dissents from a particular voyage in the manner mentioned in the preceding chapter (d), is not bound, because he does not employ the ship on that voyage, nor derive any profit from it (e). The course of the usual employment of the ship is evidence of authority given by the owners to the master to make for them and on their behalf a contract relating to such employment, and consequently a contract so made by him is esteemed in law to have been made by them. It (f) is true that the master also is answerable for his own contract; for in favour of commerce the law will not compel the merchant to seek after the owners and sue them, although it gives him the power to do so; but leaves him a twofold remedy against the one or the other But in pursuing this remedy, care must be taken to describe the defendant according to his real character; for in an action at law (g), brought against a person as master, at the trial whereof it appeared upon the proof that the defendant was not master, but owner, the plaintiff failed in his suit. This rule of the law of England agrees with the law of other commercial nations. When the Romans began to engage in commerce (h), a new species of action, under a particular name, appears to have been introduced, to ascertain and enforce this responsibility of the owners for the acts of their servants; and by the Prætorian Edict, the owners, or (to render the Latin word more nearly) the employers, of the ship are made responsible for the faults of the mariners and master, and for the contracts also of the master; but not for the contracts of the mariners, because the mariners are not appointed for the purpose of conducting the business of the ship, but only of labour (c) See Molloy, b. 2, ch. 2, s. 14. (d) Part 1, ch. 3, s. 3, p. 73. magister. Exercitorem autem eum dicimus, ad quem obventiones et reditus omnes per(e) By Holt, Ch. J., in Boson v. Sand- veniunt, sive is Dominus sit, sive a domino forth, Carth. 63. (f) Morse v. Slue or Sluce, 1 Vent. 190, 238. (g) Richwood v. Footmer, coram Kenyon, Ch. J., Sit. p. Hil. Term, 1790. (h) Dig. 4, 9. Nautæ, caupones stabularii, ut recepta restituant. navem per aversionem conduxit vel ad tempus, vel in perpetuum." Dig. 14, 1, 1. And Roccus, Not. 3, speaks to the same effect of the Magister. This author usually calls the owner Dominus navis, but he often speaks of him as the person qui exercet navem. Again, in the Dig. 4, 9, 1, 2, we find the fol lowing commentary on the Prætorian Edict. The terms of the edict are: "Nautæ, caupones stabularii, quod cujusque salvum fore receperint, nisi restituant, in eos judicium dabo." Upon which Ulpian writes thus: "Ait prætor nautæ; nautam accipere debemus, eum qui navem exercet, quamvis nautæ appellantur omnes, qui navis navi gandæ causa in navę sint, sed de exercitore solummodo prætor sentit, nec enim debet per remigem, aut mesonautam obligari, sed per se, vel per navis magistrum.” Dig. 14, 1: De Exercitoriâ Actione. Molloy, in his Treatise de Jur. Marit. et Naval. book 2, ch. 2, sect. 2, appears to have mistaken the character of the Exercitor navis of the civil law, and to have supposed him to be the master of the ship; whereas, in truth, he is the employer of the ship, and consequently must be the absolute, or at least the temporary owner: "Magistrum navis accipere debemus, cui totius navis cura mandata est. Magistrum autem accipimus non solum, quem exercitor præposuit, sed et eum, quem (ff) Mr. Justice Story, "On Agency," s. 295, p. 397, 4th Ed., says," Against both, so that if he sue one and fail to obtain satisfaction by the suit against him, he may sue the other." But see on this point Priestley v. Fernie, 5 H. & C. 977, in which the reverse was decided |