214 the act of parliament are satisfied; and it may be shewn by evidence aliunde how, and in what proportion, such partners are interested. But where A., B., and C. agreed to purchase a ship, and contracted that it should be registered in the name of A. and B. only, but that the profits of the ship should be divided by the three; C. filed a bill against A. and B. for an account of the profits of the vessel; a general demurrer was put in on the ground of public policy: the Vice-Chancellor held, that such an agreement could not be assisted by a court of equity, being in manifest contravention of the express enactments of law, and a design to evade the publicity required by the registry acts. (a) (a) Battersby v. Smith, 3 Wilson, 110. 215 CHAPTER II. OF THE MASTER. THE master of a vessel is the person commissioned to navigate and manage her. In considering this relation, there are three points to which the attention of the Reader must chiefly be directed:-1. The qualification of the master, and his authority with respect to the employment of the ship. 2. His authority to bind the owners with respect to repairs, and other necessaries furnished to the ship. 3. His duties and responsibility to the owners. The two first heads will constitute the subject of the present Chapter. of the qualifimaster and cation of the Exceptions to the usual qua I. First, as respects the qualifications of the master and seamen, they fall under the navigation laws, and have been previously stated and explained in a former part of this Work. (a) It will be mariners. sufficient, therefore, to repeat them summarily, in this place. Every vessel employed as a British vessel, in the trade of Great Britain, must be navigated by a master, and three-fourths of the mariners at least, British subjects. But the King by his proclamation, during war, may permit merchant ships and privateers to be manned with foreign mariners, in the proportion of threefourths of the proper quota for navigating such vessels. The qualifications of the master and mariners are chiefly contained in the 34 Geo. 3. c. 68., which has been left unrepealed, as regards these qualifications, though that part of it has been repealed (by mariners. 4 Geo. 4. c. 41.) which relates to transfers, and the certificate of registry. The enactments under this act generally require the master and mariners to be British subjects, except in the five following instances:-1. By proclamation during war time. 2. In the case of negroes and lascars, employed in the navigation of the seas of America and the West Indies; or in the seas to the eastward of the Cape of Good Hope. (b) 3. East India ships, manned (b) 34 Geo. 3. c. 68. and 42 Geo. 3. c. 61 (a) See ante, Part I. Chap. 1. lification of master and with lascars, are deemed legally navigated, if there be seven British seamen to every hundred tons. (a) 4. If a sufficient number of British seamen cannot be procured by the East India Company in the East Indies, or by any ship sailing under their licence, or legally trading by the late act, for their voyage to Europe, the governments there are empowered to grant licences to such ships to sail with a less proportion of British seamen than is required by law. (b) 5. And in the case of any ships employed in trade only between the ports and places within the limits of the company's charter, including the Cape of Good Hope, such ships may be manned and navigated wholly by lascars, or any Asiatic sailors. It may, perhaps, be termed a sixth exception, that foreign sailors and mariners, serving three years on board British ships of war, are to be deemed British subjects; and, upon due certificates of good behaviour from the commanding officer on board the vessel in which they have served, may be employed as masters or mariners of British ships, and are holden to be within the meaning of the navigation laws as British seamen. But any merchant who employs them must be careful of two points: in the first place, that they have such certificate; and, secondly, that they have taken the oath of allegiance to his Majesty before some justice of the peace, or officer of his Majesty's customs, in any of the ports of the King's dominions. (c) It should, likewise, be particularly observed under this head of the qualification of the masters and seamen, that any person, whether British or alien, who shall take an oath of allegiance to a foreign state, thereby loses his qualification of being regarded as a British subject, by birth or service, unless such oath, in the case of an alien, have been taken before his qualification by service to be a British master or seaman, or, unless being a British subject, he shall have taken it under the terms of some capitulation, upon the conquest of any of the dominions of his Majesty by the enemy, and for the purpose of obtaining the benefit of such capitulation only. But as owners in many cases may be ignorant of their masters and mariners having taken such oath it is provided that a ship shall not be forfeited, if the owners can make it appear that they were ignorant of such disqualifying circumstance. (d) Such, therefore, are the qualifications required by law, spects the master and mariners of British ships. (a) 55 Geo. 3. c. 116. (b) 55 Geo. 3. c. 116. See 53 Geo. 3. c. 155., and East India Free Trade Consolidation Act, 4 Geo. 4. c. 80. as re (c) 34 Geo. 3. 68.; and 42 Geo. 3. c. 61. (d) 34 Geo. 3. c. 68.; and 42 Geo. 3. c. 61. ter, &c. II. The authority of the master, with regard to the employ- Of the masment of the ship, is a more ample head, and requires a fuller explanation. master, as re The master of a ship is necessarily in one or other of two rela- Of the authotions: he is either a part-owner, to whom his co-partners have rity of the trusted the government and management of their common pro- gards the emperty; or he is the mere captain, in which case he is the confi- ployment of the ship. dential servant or agent of the owners at large. In both cases, the general rule is, that the owners are bound to the performance of every lawful contract made by him relative to the usual employment of the ship. Being, however, not only the representative of the owners, but being himself, when in foreign and remote parts, the only person visible and known, the law, acting upon this circumstance, makes him responsible, not only as agent, but answerable as for his own contract. The principle of this rule is manifest. It would be of inconceivable mischief, and an impediment in commercial dealing, if a foreign merchant, making a contract of freight with the master, should be compelled for any consequential injury to seek out the owners. The law, therefore, in order to avoid this inconvenience, gives all who deal or contract with the master the two-fold remedy, that they may proceed against either or both. (a) III. The master and owner, therefore, being to each other in the relation of master and servant, or principal and agent, if goods be lost, injured, &c. by the wilfulness or negligence of the master, the owners are liable; being necessarily in a better condition of knowing the skill, honesty, and trust-worthiness of their servants, than those who only casually employ them; and having, moreover, the profit and price of the freight of the ship. IV. But the owners are liable only for such contracts of the master as he shall make in the necessary and usual employment of the ship, or for such acts as he shall do belonging to his character as master within this limit. And, therefore, in the case of Bou- Boucher. cher v. Lawson, (b) it was decided by Lord Hardwicke and the Lawson. Court of King's Bench, that the owner was not liable for the act of the master, such act not belonging to his character of master; and, therefore, not to be presumed within their express or implied consent. The case was this:-The master had received some Portugal coin, to convey from Lisbon to London; and, according to custom in these cases, the price of such conveyance (a) 1 Boson v. Sandford, Carthew, 69. Morse v. Sluce, 1 Ventris. 190. 238.; and Abbott, 115. Of the master, &c. Of the authority of the master as regards the employment of the ship. Burgon v. was his own perquisite. He embezzled the coin, and an action was brought by the proprietor against the owners to recover the value. The court decided, that if the vessel had been carrying goods upon hire, the circumstance of the price of carrying coin being a perquisite of the captain would not vary the liability of the owners, as it would make no difference in the equity of the case, whether the master received such price under the name of wages or perquisite. But in the case before them it did not appear that the vessel was so employed; it was, therefore, a mere private act of the captain, and, therefore, not within the ordinary presumption of the law, so as to make the owners responsible. In explanation of this principle, Lord Kenyon said, in another case, (a) "The defendants (owners) are responsible for the acts of their servant in those things that respect his duty under them, though they are not answerable for his conduct in those things that do not respect his duty to them; as if he were to commit an assault upon a third person in the course of his voyage." V. But as the owners are bound by the act of the master, under the presumption of law that he is their agent and authorized servant; so if the owners appear in their own persons, and make a special contract for the employment of their ship, the master, of course, cannot annul such a contract, and substitute another for it. The principle here is, that expressum facit cessare tacitum; and the appearance of the principals in their own person supersedes the discretionary act of their agent. In Burgon v. Sharpe and Others, (b) where this was the precise point before the Court, Lord Ellenborough said, that the captain was captain for the voyage originally agreed upon by the owners; and, being employed only upon that express voyage, every thing beyond the voyage was beyond the scope of his authority as captain. As such, he had no power to change that voyage for another. His Lordship however added, "the person who is entrusted with the command of a ship may be vested with a complete controul as to her employment and destination: but this is superinduced upon authority as captain." his In all such cases, however, the court will give particular atten. tion, not only to the general authority of masters by the practice of merchants: but, still more strongly, to any express and particular contract, which may have been made between the master (a) Ellis v. Turner, 8 T. R. 531. (b) 2 Campb. 529. |