J. Y. Brinton

“ While the majority of offenses under maritime law only differ from like offenses on land in respect of locality, piracy is confined to the water. Pirates are enemies of all mankind and the offense is against the universal laws of society. There is a piracy, therefore, by the law of nations and those guilty of it are subject to pursuit, seizure and punishment by the vessels of every nation. There is also a statutory piracy which is punishable only within the limits of the jurisdiction which defines it. The pirate by the law of nations is an outlaw whom any nation may capture and punish. ”

“ Disaster does not necessarily absolve the contract of towage. On the contrary, it is quite settled that it is the duty of the tug to continue to do all in its power to get its tow out of situations of difficulty and danger, short, of course, of sacrificing its own safety. It is not relieved from its obligation because unexpected difficulties occur and may not lightly abandon the tow to its fate. Extraordinary services under a towage contract may secure a salvage reward, but too great haste in abandoning it will impose a corresponding liability. ”

“ The principle on which vessels are held liable for injuries to seamen due to unseaworthiness is simply an application of the rule of law that every master is bound to provide his servant with a safe place to work; that is to say, a place as safe as any prudent man would provide for the performance of work of similar character, and that failure to provide such a safe place is actionable negligence. ”

“ But such a belief is not sufficient in itself to give a maritime lien. If that belief was founded upon the supposition that the steamship company owned the vessel, no lien would exist, because in the absence of an agreement, express or implied, for a lien, a contract for supplies made directly with the owner in person is to be taken as made "on his ordinary responsibility, without a view to the vessel as the fund from which compensation is to be derived." ”

“ Maritime law is not an exception. Its story presents all the attractions which incline the student to the study of history. It is profitable to follow here, as in politics, the development of ideas and customs, the efforts to accommodate the necessities of commerce by sea to those of the land, the methods of regulating the varied interests on shipboard and those between the shipowner and the ship's company, and the experiments towards ameliorating the age-long friction between the capitalist who supplied the ship and those who labored in her navigation. ”

“ Vessels abandoned and deserted at sea, with or without their cargoes, are termed derelicts and may be salved or destroyed by whomsoever can do so. They constitute very dangerous obstructions to navigation, especially when afloat on the ocean or the Great Lakes. The question whether or not a vessel is to be adjudged a derelict is decided by ascertaining, not what was actually the state of things when she was deserted by her master and crew, but what were their intentions and expectations when they quitted her. ”

“ There can be no implication that the general owner consented that false pretenses of contract, having the semblance of bills of lading, should be created as instruments of fraud; or that, if so created, they should in any manner affect him or his property. They do not grow out of any employment of the vessel; and there is as little privity or connection between him, or his vessel, and such simulated bills of lading, as there would be between him and any other fraud or forgery which the master or special owner might permit. ”

“ Generally speaking, the remedy of the sailor for violence inflicted upon him on shipboard is to be sought in the courts of law alone. The exigencies of discipline require that, for the common good, authority on shipboard should not be resisted. Nevertheless cases occur where the right of self-defense may be lawfully claimed. Where the master assaults a seaman, the latter may endeavor to escape; if pursued and escape be impossible, and the assault continued, he may use necessary and equivalent force for his own protection. ”

“ Now it is true that under a contract of towage, the owner of the vessel towing does not insure against marine perils. It is true, however, that he must obey the law, and, in the protection of the life and property intrusted to his sole control, he must exercise that degree of caution and skill which navigators of prudence usually employ in such service. He is held bound to know the waters, the channels, well-defined currents, and such well-defined shoals as have been for a sufficient length of time marked by the government, and all other dangers known generally to men experienced in navigation ”

“ It is a general doctrine of the law that the owner of a vessel wrecked without his personal fault may relieve himself from all further personal liability on its account by abandoning it. If sunk through his fault, or if he still retains his title, he may be liable for damage which it occasions, or for maintaining a nuisance, or for obstructing navigable waters. If wrecked by unavoidable accident or without the owner's negligence, he may abandon all his rights and interest in what remains and be freed from all further responsibility ”

“ And when it is considered how difficult it is to decide where gross negligence ends and ordinary negligence begins, and to distinguish between pure accident and accident from negligence, we cannot but think that the British courts have adopted the safe and legal rule in deciding, that where the policy covers the risk of barratry, and fire be the proximate cause, they will not sustain the defense that negligence was the remote cause. ”

“ The general maritime law has always been that an owner was not personally liable for the obligations of his ship as distinguished from his own agreements or delinquencies. It regards the ship as a distinct individuality similar to a corporation. The common law, on the contrary, considers the ship like any other kind of personal property and holds the owner correspondingly liable because his agents were in charge and he is liable for whatsoever they do within the scope of their agency. ”

“ A mate has no legal right to enforce his orders by beating one of the crew. Up to about seventy years ago corporal punishment of seamen was permitted by law, owing to the nature and supposed necessities of the service, and no doubt officers find it hard to give it up. Courts of admiralty endeavor to deal with these cases in a practical way. Altercations and assaults between master and crew have never been treated by them like those redressed in the common law courts, where the slightest blow may be treated as a trespass to one's dignity and feelings of self-respect. ”

“ The ground on which the right to sell rests is, that in case of disaster, the master, from necessity, becomes the agent of all parties in interest and is bound to do the best for them that he can, in the condition in which he is placed and, therefore, has the power to dispose of the property for their benefit. When nothing better can be done for the interests of those concerned in the property than to sell, it is a case of necessity, and as the master acts for all, he sells as well for the lien holder as the owner. ”

“ It would seem, however, that if one assuming a responsibility as an expert possesses a knowledge of facts and circumstances connected with the duty he is about to perform, and if he brings to bear all his professional experience and skill, weighs these facts and circumstances, and decides upon a course of action which he faithfully attempts to carry out, the want of success, if due to such course of action, would be attributed to error of judgment, and not to negligence. ”

“ It is a principle discernible in all maritime codes, that every encouragement and assistance should be afforded to those who are ready to give their ships constant employment; and this not only for the particular profit of owners, but for the general interests and prosperity of commerce. If agriculture be, according to the happy allusion of the great Sully, "one of the breasts from which the State must draw its nourishment," commerce is certainly the other. ”

“ It is the duty of a ship under way, whether the vessel at anchor be properly or improperly anchored, to avoid, if it be possible with safety to herself, any collision whatever, and the courts have frequently held that even if a ship is brought up in the fairway of a river, if the other could with ordinary care have avoided her, the latter will be held solely to blame. ”

“ To make it unlawful to insert in a contract a provision exempting from seaworthiness where due diligence has not been used, cannot by any sound rule of construction be treated as implying that where due diligence has been used, and there is no contract exempting the owner, his obligation to furnish a seaworthy vessel has ceased to exist. ”

“ Lien for Freight and Charter Hire.—
It is fundamental that the goods carried are liable for the carrying charges, but the questions arise: In whose favor does the liability exist, and during what period does it exist? The lien for freight exists in favor of the person with whom the shipper contracts to carry the goods. Where the shipowner is operating the vessel on his own account as a carrier, the lien for freight exists in his favor. Where the vessel is chartered the contract of carriage is between the shipper and the charterer, and the lien for freight exists in favor of the charterer. ”

“ All private, unauthorized maritime warfare is piratical because it is incompatible with the peace and order of the high seas. It is not necessary that the motive be plunder or that the depredations be directed against the vessels of all nations indiscriminately; it is only essential that the spoliation, or intended spoliation be felonious, that is, done willfully and without legal authority or lawful excuse. In cases of this piracy by international law, it is of no importance, for purposes of jurisdiction, where or against whom, the offense is committed ”

“ Where a vessel is so hired that the charterer has the exclusive possession, control and management, appointing the master and hiring the crew, there is said to be a demise of the ship and a temporary ownership in the charterer. He then becomes responsible for her obligations as if he were the real owner and has similar rights of limitation. ”

“ The master of a passenger steamer is an exceedingly important officer. He should be of exceptional firmness, intelligence and character, and more than ordinarily endowed with common sense and tact and always gentle and courteous. He has vast power in dealing with passengers in situations that are liable to and do arise on his vessel, and he may in a proper case after exhausting pacific measures, place a passenger under arrest, but, to suppose, as he testified he did, that he could delegate this authority to minor officials or others on board, cannot be sanctioned. ”

“ The laws which establish such compulsory pilotage are intended to secure, as far as possible, protection to life and property, by supplying a class of men better qualified than ordinary mariners to take charge of ships where navigation is attended with unusual difficulty on account of local conditions; the master, however well qualified, is compelled under penalty to abdicate his authority in favor of the pilot, and, if so, it is unjust that either he, or the owner, should be personally answerable for the errors of an official in whose selection he had no choice. ”

“ It must be conceded that an engagement to tow does not impose either an obligation to insure, or the liability of common carriers. The burden is always upon him who alleges the breach of such a contract to show either that there has been no attempt at performance, or that there has been negligence or unskillfulness to his injury in the performance. Unlike the case of common carriers, damage sustained by the tow does not ordinarily raise a presumption that the tug has been in fault. ”

“ In the baptism of launching she receives her name, and from the moment her keel touches the water she is transformed, and becomes a subject of admiralty jurisdiction. She acquires a personality of her own; becomes competent to contract, and is individually liable for her obligations, upon which she may sue in the name of her owner, and be sued in her own name. Her owner's agents may not be her agents, and her agents may not be her owner's agents. She is capable, too, of committing a tort, and is responsible in damages therefor. ”

“ It cannot be doubted that a master has power to sell both vessel and cargo in certain cases of absolute necessity.... Without pretending to enumerate or classify the multitude of cases on this subject, or to state all the possible conditions under which this necessity may exist, we may say that it is applied to cases where the vessel is disabled, stranded, or sunk; where the master has no means and can raise no funds to repair her so as to prosecute his voyage ”

“ A vessel mortgage is a conveyance of the ship as security. A bottomry bond is a contract in the nature of a mortgage by which the ship is pledged as security for the repayment of money borrowed and the lender assumes the risk of loss if the ship does not survive in consideration of maritime interest, usually at a high rate. Respondentia is a loan on the cargo, to be repaid if the goods arrive, but, if lost, the borrower is exonerated. Like bottomry, it is essentially a loan without personal liability beyond the value of the property mortgaged. ”

“ The temporary ownership of a vessel by a person other than the real owner does not relieve the ship herself from those liabilities which attach to her in any event: For example, her liability for damage caused others by her torts, as faulty navigation; or from liability under those contracts for which the ship itself is primarily responsible, such as contracts for bunkers and supplies and necessary repairs elsewhere than in the home port. ”

“ If he refuses, he may be liable both civilly and criminally. The ancient sea-laws were stringent in this regard; the Laws of Oléron, for example, provide that if disaster is sustained by the ignorance of the pilot, he shall be obliged to make full satisfaction therefor, and, if he has not wherewith to make satisfaction, the master, or any one of the mariners or merchants may cut off his head and shall not be bound to answer for it. When a pilot takes charge of a vessel at sea, it is his duty to stay by her, unless discharged, until she reaches her destination or some place of safety. ”

“ Where a ship is saved and unable to continue her voyage and carry out her contracts of affreightment, the freight is one of the things of value saved, but in determining the value of the freight saved for the purpose of assessing a salvage award against it, "the freight to be considered is only such proportion of the freight earned by the entire voyage as the distance at which the salvage service was rendered from the port of departure bears to the whole voyage." ”

“ By the contract of carriage, the shipper and consignee impliedly authorize the master, when he cannot obtain instructions, to do everything within the general scope of his employment which a rational man of business might believe that a rational owner would certainly do for himself if he were present under the circumstances at hand. ”