CHAPTER V. OF THE GENERAL DUTIES OF THE MASTER AND OWNERS; AND HEREIN, SECT. 1. Of the Preparation for the Voyage, p. 302. 2. Of the Commencement of the Voyage, p. 310. 3. Of the Course of the Voyage, p. 320. 4. The Master's Duty as respects the Cargo in the course of the Voyage, p. 323. 5. Of the Completion of the Voyage, p. 330. 1. Of the Preparation for the Voyage. In whatever way the contract for the conveyance of merchandise be made, the master and owners are thereby bound to the performance of various duties of a general nature. I propose to treat of these duties in the present chapter, and shall consider them as they regard, first, the Preparation for the Voyage; secondly, the Commencement; thirdly, the Course; and lastly, the Completion of the Voyage. And first, as to the Preparation for the Voyage. The first duty is to provide a vessel tight and staunch, and furnished with all tackle and apparel necessary for the intended voyage (a); for if the merchant suffer loss or damage by reason of any insufficiency of these particulars at the outset of the voyage, and of delay or loss of market resulting from it (b), he will be entitled to a recompense (c). But there is no implied warranty on the part of (a) Emerigon, tom. 1, pp. 373,374, 375. Roccus, not. 19, 57, 69. Ordinance of Rotterdam, 2 Magens, p. 101, art. 124, Molloy, book 2, chap. 2, sect. 10. Wellwood's Sea Laws, tit. 7, p. 72. (b) Christie v. Trott, 1 W. R. C. P. 15; 22 L.T. 101; and see, as to insufficient anchors, Harrison v. Douglas, 3 Ad. & E. 396. (c) The case of Wedderburn v. Bell, (1 Campb. Rep. 1) was an action on a policy of insurance on the ship Minorca, at and from Jamaica to London. The ship sailed from England with convoy, but parted from the fleet; and being no more heard of, was supposed to have foundered in a hurricane. The defence was, that the ship was not properly equipped with sails. It appeared that her sails to be used in stormy weather were in good condition, but that her main-top-gallant sails and studding sails, which are useful in light breezes, were rotten and almost unserviceable. Lord Ellenborough said, "The hull of the ship in this case was sufficient and seaworthy, but it appears that when she left Jamaica her sails were highly defective. It is not enough that a ship is supplied with such sails as are essential to her safety from the perils of the sea, and which might enable her, if not intercepted, at some period or other to complete her voyage, she must be rendered as secure as possible from capture by the enemy, as well as from the dan a shipowner that his ship is seaworthy when contracting with a seaman to make a voyage in her (d). An insufficiency in the furniture of the ship cannot easily be unknown to the master or owners; but in the body there may be latent defects unknown to both. The French ordinance directs that if the merchant can prove that the vessel, at the time of sailing, was incapable of performing the voyage, the master shall lose his freight, and pay the merchant his damages and interest (e). Valin, in his commentary upon this article, cites an observation of Weytsen, "That the punishment of the master in this case ought not to be thought too severe, because the master, by the nature of the contract of affreightment, is necessarily held to warrant that the ship is good, and perfectly in a condition to perform the voyage in question, under the penalty of all expenses, damages, and interest." And he himself adds that this is so, although before its departure the ship may have been visited according to the practice in France, and reported sufficient; because on the visit the exterior parts only of the vessel are surveyed, so that secret faults cannot be discovered, "for which, by consequence," says he, "the owner or master remains always responsible; and this the more justly, because he cannot be ignorant of the bad state of the ship; but even if he be ignorant, he must still answer, being necessarily bound to furnish a ship good and capable of the voyage." Pothier (f), taking notice of this article, and of the commentary upon it, declares his own opinion (in conformity, as he gers of the winds and waves. But here the Smaithwaite, 4 W. R. Q. B. p. 68. a suit for its recovery, that a plea alleging that the ship was not tight, staunch, &c., at the commencement of her voyage, by reason of which she was lost, was a good answer to the action, for by the term of the charterparty, the advance freight was to be at the charterer's risk, and to be insured by him, and he was not bound to pay it until the ship was in such a condition that a policy of insurance on it would attach. Thompson v. Gillespy, 5 E. & B. 209; 24 L. J. Q. B. 340. In the same case the ship having gone out of dock to save a spring tide, with her rigging and equipment incomplete, and part of her crew absent, and anchored in the roads, where she was lost, the master who had not then signed the bills of lading being on shore; a verdict on a plea that the ship had not sailed pursuant to charter-party, was determined to have been properly entered for the defendant. (e) Liv. 3, tit. 3, du Fret. art. 12. (f) Traité de Charte-partie, num. 30. The author here refers to his own excellent Traité de Louage, part 2, chap. 1, sect. 4, par. 2. But it rather appears to me that the rules there laid down by himself warrant the conclusion, that in this instance the owner and master ought to be responsible for the loss-"Lorsque le locateur devoit par sa profession être informé du vice de la chose louée il est tenu des dommages intérèts du observes, to the general principles of law established in his own treatise on the contract of letting to hire) to be, that if the ship has been visited and reported sufficient, the master or owner shall not be answerable for damages occasioned by a defect which they did not nor could know; but he agrees that they shall lose their freight (g). It may be observed, however, that defects of this sort cannot exist, unless occasioned by the age or particular employment of the ship, or some accidental disaster that may have happened to it; all of which ought to be known to the owner, and ought to lead to an examination of the interior as well as exterior parts. And indeed this contract, although greatly partaking of the nature of the contract of letting to hire, is not precisely the same, but includes in itself a warranty beyond that which is contained in the contract for letting to hire. In a charter-party, the person who lets the ship covenants that it is tight, staunch, and sufficient; if it is not so, the terms of the covenant are not complied with (h), and the ignorance of a covenantor can never excuse him. And with regard to a general ship, Chief Justice Holt, in his elaborate argument on the law of bailments, distinguishes the contract made for the carriage of goods from the contract of letting to hire; and speaking of the former, when made by a person in a public employment, says, "The law charges the person (viz., common carrier, hoyman, master of a ship) thus entrusted to carry goods against all events but acts of God and of the King's enemies ;" so that a common carrier is an insurer against all perils or losses not within the exception (i); and the contract of insurance, properly so called, is clearly void if the ship at the commencement of the voyage be not seaworthy, although the person who has effected the insurance be ignorant of that circumstance (j). Indeed, in a case in which it appeared that the owner of a lighter, employed in conveying goods from a quay at Hull to sloops in the dock, had, together with many other persons engaged in the same business, given public notice, "That they would not be answerable for any loss or damage which should happen to any cargo which should be put on board any of their vessels, unless such loss or damage should happen to be occasioned by want of ordinary care and diligence in the master or crew of the vessel, when and in such case they would pay to the sufferers 10l. per centum upon such loss or damage, so as the whole amount of such payment should not exceed conducteur, sans qu'il soit besoin de chercher, si effectivement il en a eu connoissance ou non." And he instances the case of a cooper or shopkeeper, letting casks made of bad wood. (g) Le capitaine perd son fret, et repond des dommages intérèts de l'affréteur, si celui-ci prouve que, lorsque le navire a fait voile, il était hors d'état de naviguer. La preuve est admissible nonobstant, et contre les certificats de visite au départ.-Code de Commerce, art. 297. (h) The law of the United States of America is the same: see American edit. by Story, p. 222. So also is the Scotch law. "Such ordinary hazards as occur not by stress of weather, or any extrinsic accident, but only from the ship and her furniture, lie not upon the merchant, nor are relevant to free the skipper, who must have the ship sufficient at his peril."-1 Bell's Com. 4th edit. 550. (i) Coggs v. Bernard, 2 Lord Raym. 909. (j) Park on Insurance, ch. 11. the value of the vessel on board whereof such loss or damage should have happened, and the freight of such vessel." And they gave further notice, "That any merchant or other persons desirous of having their goods or merchandises carried free of any risk, in respect of loss or damage, whether the same should happen from the act of God or otherwise, might have the same so carried by entering into an agreement for the payment of an extra freight proportionable to the accepted responsibility, on application to them or their respective agents." It was held, that the owner was answerable to the full extent of the damage done to goods by reason of the leakiness and insufficiency of his lighter, although the merchant was acquainted with the notice before he sent the goods on board. In delivering the judgment of the court on this occasion, the learned Chief Justice, Lord Ellenborough, said, "In every contract for the carriage of goods between a person holding himself forth as the owner of a lighter or vessel ready to carry goods for hire, and the person putting goods on board or employing his vessel or lighter for that purpose, it is a term of the contract on the part of the carrier or lighterman implied by law, that his vessel is tight, and fit for the purpose or employment for which he offers and holds it forth to the public. It is the very foundation and immediate substratum of the contract that it is so; the law presumes a promise to that effect on the part of the carrier without any actual proof; and every reason of sound policy and public convenience requires it should be so." And the court considered the insufficiency of a lighter" as a personal neglect of the owner, or more properly as a non-performance on his part of what he had undertaken to do-viz., to provide a fit vessel for the purpose;" and thought it clear that the only object of the notice "was to limit the responsibility of the owners, in those cases only where the law would otherwise have made them answer for the neglect of others, and for accidents which it might not be within the scope of ordinary care and caution to provide against" (k). And not only must the ship and her furniture be sufficient for the voyage, but she must be also furnished at the time of sailing (1) with a competent master, and an adequate number of persons of skill and ability to navigate her. She is not fit for the voyage unless she sails with a crew competent for the voyage, considering its length and the circumstances under which it is undertaken. Therefore, where on a voyage from the Mauritius to London there was no one on board competent to supply the captain's place, he being ill when he went on board, Lord Tenterden, in an action on a policy of insurance, held the underwriters to be discharged (m). The case of Tait v. Levi (n) was an action on a policy of insurance at and from Cork, to the ship's loading port or ports on the coast of (k) Lyon and another v. Mells, 5 East, 428. (1) Forshaw v. Chabert, 3 B. & B. 158. But see Weir v. Aberdeen, 2 B. & Ald. 320. (m) Clifford v. Hunter, M. & M. 103. See 3 Kent's Comm. 287, note (a). (n) 14 East, 481. Spain, within the Straits of Gibraltar, including Tarragona, and not higher up the Mediterranean, and from thence to London. Tarragona was at this time in the possession of our Spanish allies. Barcelona, which lies further up the Mediterranean, was in possession of the French enemy. It was the intention of the captain to go into Tarragona, but being entirely ignorant of the coast, he passed that port in the night, mistook Barcelona for Tarragona, and was entering the former port when captured by the French. Lord Ellenborough-"There was no just cause for the deviation; it resulted solely from the master's ignorance. If he had been driven off Barcelona by stress of weather, it would have been a different consideration. I think the case against the assured. The implied warranty to provide a master of reasonably competent skill was not complied with, by sending out one who was totally ignorant of the one port and of the other—of Tarragona and of Barcelona-when it was the immediate and prominent object of the policy to distinguish between them." And for sailing down rivers, out of harbours, or through roads, &c., where, either by usage or the laws of the country, a pilot is required, a pilot must be taken on board (o). The master, when bound to take a pilot, is liable to heavy penalties, if, after a qualified one has offered to take charge of his ship, he does not employ him. And no owner or master of any ship shall be answerable to any person whatever, for any loss or damage occasioned by the fault or incapacity of any qualified pilot acting in charge of such ship within any district where the employment of such pilot is compulsory by law (p). The manner of taking goods on board, and the commencement of the master's duty in this respect depend on the custom of the particular place. More or less is to be done by wharfingers or lightermen according to the usage. If the master receives goods at the quay or beach, or sends his boat for them, his responsibility commences with the receipt (q). In the port of London, with respect to goods intended to be sent coastwise, it has been held that the responsibility of the wharfinger ceases by delivery of them to the mate of the vessel upon the wharf (r). As soon as any goods are put on board, the master must provide a sufficient number of persons to protect them (s); for (o) Law v. Hollingsworth, 7 Term. Rep. 160. Phillips v. Headlam, 2 B. & Ad. 384. See the observations of Baron Parke on these cases as they affect the liability of insurers, in the case of Dixon v. Sadler, 5 M. & Wels. 405; Emerigon, tom. 1, p. 375; Molloy, book 2, ch. 2, sec. 7.; Roccus, not. 59, 62; French Ordinance, liv. 2, tit. 1, Du Capitaine, art. 8. And see made in breach of the regulations of the 5 & 6 Wm. 4, c. 19, by which masters of British ships are prohibited from carrying to sea seamen who have not signed the ship's articles, was not therefore void. (p) 17 & 18 Vict. c. 104, ss. 353, 376,388. (q) Molloy, book 2, chap. 2, sect. 2; Roccus, not. 88; Wellwood, tit. 9, Dig. 4, 9, 3. (r) Cobban and another v. Downe, 5, Esp. N. P. C. 41. (8) Morse v. Slue, 1 Vent. 190, 238; Sir T. Raym. 220. Rich v. Kneeland, Hob. 17; 2 Cro. 330; Dig. 4, 9, 1, 1. "Nisi hoc esset statutum, materia daretur cum furibus adversus eos, quos recipiunt, coeundi, cum ne nunc quidem abstineant hujusmodi fraudibus." But the word fures here means thieves |