Any owner can sell his interest whenever he pleases, and all of them

may authorize the sale of the entire vessel. A writing is required to

pass the title, but as between the parties an oral sale and delivery

will suffice, at common law. In many cases a bill of sale is required

by statute. The writing should describe what things are transferred,

but general terms such as appurtenances and necessaries have a fixed

meaning which are understood. Intention is the guide to determine what

passes in such a sale, as in cases of fixtures already considered.

When the bill of sale is executed the purchaser becomes entitled to

all the benefits of ownership, and incurs all the liabilities. If the

sale is unconditional, the purchaser is liable for supplies though he

may never have taken possession of the vessel, and neither the master

nor the merchant furnishing the supplies knew of the sale. The

purchaser is not liable for repairs made and supplies furnished before

the sale, unless he has agreed to pay for them, or the vessel was at

sea at the time. If she was, the purchaser takes her subject to all

encumbrances on her, and to all lawful contracts made by the master

before learning of the purchase.

A vessel may be mortgaged, and the federal statutes state how this

shall be done. A shipbuilder may make a contract whereby he mortgages

the vessel to be built in advance of its construction, and a lien

attaches as it comes into existence. Such a mortgage is postponed or

comes after a maritime lien, that will soon be explained, but comes

before the debts of general creditors.

The mortgagor, so long as he retains possession, has all the rights of

ownership, and all contracts made by him are valid which do not impair

the security of the mortgage. When the mortgagee takes possession of

the vessel he is entitled to all the earnings that accrue, but not to

those which the mortgagor has reserved, even though they are for the

current voyage. Furthermore, his interest may be attached by his

creditors. The discharge and foreclosure of mortgages on vessels are

governed for the most part by the rules that apply to chattel

mortgages. A mortgage on a vessel should be recorded, and many of the

rules and usages that apply to the recording of deeds apply also to

such mortgages.

A contract may be made for a loan of money on the bottom of a vessel

at a rate much greater than the usual rate of interest. Such a loan is

sanctioned to enable the master to obtain money for supplies or

repairs at some foreign port where they could not be otherwise

obtained. The loan is on the security of the vessel and if she never

arrives, the lender loses his money. If she does arrive at the port of

her destination, the borrower personally, as well as the vessel, is

liable for the repayment of the loan with the agreed interest thereon.

This maritime loan is highly regarded in legal tribunals, and is

liberally construed by them to carry into effect the intention of the

parties.

Such a loan or bond can be given by the master of the vessel only in

case of necessity and great distress in a foreign port, where the

owner is not present and has no representative with funds, and where

the master has no other means of getting money. The master has a large

discretion. "The necessity must be such as would induce a prudent

owner to provide funds for the cost of them on the security of the

ship, and that if the master did not take the money the voyage would

be defeated or at least retarded." The general purpose of the loan is

to effectuate the objects of the voyage and the safety of the ship.

The appointment and employment of a master is wholly within the

discretion of the owners. On his death or removal in a foreign port a

successor may be appointed by the consul resident there of the country

to which the vessel belongs, or by an agent of the owners, or by the

consignees of the cargo who have advanced money for repairing the

vessel. The registry acts of the United States require the putting of

the master's name in the register, but if this is not done his

authority is not impaired; and the one to whom the navigation and

control of a vessel is entrusted is considered her master, although

the name of another appears on the register. His contract may contain

any stipulation to which the parties may agree. The right of a master

to command his vessel is personal to him; and a sale by a master who

is part owner of the vessel of his interest therein transfers no right

to the command of the vessel which the other owners are bound to

respect. Whenever he becomes incapable of commanding by reason of

sickness, insanity, or other reason, the command with the duties

pertaining thereto devolves on the first mate until the appointment of

another master; should he be absent or incapable of acting, then the

second mate and so on down the rank of officers.

The master must do all things for the protection and preservation of

the several interests entrusted to him, the owners, charterers, cargo

owners, underwriters. He must render a full and satisfactory account

to the owners of the vessel of moneys secured and his disbursements

before demanding any wages. At sea he is the supreme officer, has sole

authority over both officers and crew to do justice to all persons

under his command, and to protect passengers and seamen from bad

treatment while they are on board. It is said that in respect to

passengers he owes a higher and more delicate duty than he owes to the

crew, but at the same time he has the necessary control over his

passengers and may make proper regulations for their government to

ensure their safety, promote their comfort and preserve decent order.

He has authority to bind the owners when they are not present for

expenditures needful in the way of repairs, supplies and other

necessaries reasonably fit and proper for the safety of the vessel and

the completion of the voyage.

As the seamen who serve on a vessel are generally ignorant and

improvident, the execution of shipping articles are required by

federal statute where the vessel is bound on a foreign voyage, or from

a port in one state to a port in another. If these articles are not

made seamen have the right to leave the vessel at any time, and may

recover the highest rate of wages paid at their shipping port. The

articles must be signed by the seaman and by the master, and the

contract must be executed before the vessel proceeds on its voyage.

The seaman is not bound by any new or unusual stipulation put into the

articles affecting his rights without full knowledge of it, and

especially when he cannot read and the stipulation is not read and

explained to him. Once executed, the articles cannot be varied by a

verbal agreement between master and seaman.

The articles must specify clearly and definitely the nature of the

intended voyage, the port at which it is to end and its duration.

Indefinite articles, leaving to the option of the master whether the

voyage shall be long or to one or more foreign ports, or short to

nearby domestic ports, are void. The articles must also state the

amount of wages each seaman is to receive. Articles are void that fix

a forfeiture of wages in excess of the amount named in the statute, or

restrict the time in which seamen must sue for their wages. The

contract may be dissolved by cruel treatment by the master and by an

abandonment of the vessel without the master's consent, but not by the

death, disability, removal or resignation of the master and the

substitution of another. Besides the wages a seaman may recover,

should the master break the contract, are his expenses in returning to

the port of shipment including also general damages.

Claims for wages are "highly favored in admiralty courts," and

discharges are not justified for trivial causes, nor for a single

offense unless it is an aggravated one. Such causes are continued

disobedience or insubordination, rebellious conduct, gross dishonesty,

embezzlement or theft, habitual drunkenness, habitually stirring up

quarrels, or by his own fault rendering himself incapable of

performing duty. The master must receive back a seaman when he has

thus been discharged who repents and offers to return to his duty and

make satisfaction, unless the offense was of an aggravated character.

This is the general rule, though from its nature there is much room

for its application.

=Statute of Frauds.=--Some contracts must be in writing to comply with

a statute called the Statute of Frauds, which has been enacted with

variations in all the states. One of the most important sections

relates to the conveyance of real estate. This requires that the

agreement for its sale must be in writing. (See _Agreement for Sale of

Land_.)

Another section relates to the sale of goods, wares and merchandise.

This has not been enacted in every state. If the amount is above that

mentioned in the statute, thirty to one hundred dollars, there must be

a written contract or delivery and acceptance of the goods to

constitute a contract. If A sells a bill of goods to B, who declines

to receive them, and the contract is wholly verbal, he can shield

himself behind this statute wherever it prevails. Many questions

therefore arise, what is a delivery and acceptance? A delivery of a

key of a building containing the property is sufficient. The delivery

of a bill of lading of goods properly indorsed, making entries of the

goods sold, pointing them out or identifying them is enough to comply

with the statute. Whenever there has been a transfer of possession and

control by the seller to the purchaser to which the latter has

assented there has been a sale. Or, more broadly, whenever there has

been such action as to show clearly an intention to sell and accept

the property the sale is complete. Part payment of the purchase money

for personal property is generally regarded as showing such intention.

To a contract for the manufacture of a thing the statute does not

apply. Simple as this answer may be, the law soon gets into

difficulties in deciding whether a contract is for the making of a

thing, or for the thing itself; whether the important element is the

skill or labor that is to be expended, or the thing without regard to

the process of making. Thus, if a contract is with one to paint a

portrait, the statute would not apply, for the skill of the artist is

the important thing purchased, and not the canvas, paint, etc., he

must use. To a contract for a locomotive the statute would apply. "If

the contract states or implies that the thing is to be made by the

seller, and also blends together the price of the thing and

compensation for work, labor, skill and material, so that they cannot

be discriminated, it is not a contract of purchase and sale, but a

contract of hiring and service, or a bargain by which one party

undertakes to labor in a certain way for the other party," and the

statute does not apply to it.

=Statutes of Limitation.=--In all the states statutes have been

enacted which provide that if the rights of parties to legal redress

are not enforced within a specified period, the courts are closed to

them. Thus, in most states a statute provides that a holder or owner

of a promissory note who neglects to sue the debtor within six years

from its maturity cannot do so afterwards. The note is not absolutely

void, though the law presumes it has been paid. As the note is not

void, payment may be effected as we shall soon learn.

Suppose one is indebted to a merchant, if the debt is not paid within

six years in most states and nothing has happened, the debt in popular

language is outlawed, in other words cannot be collected by resort to

law. The time begins to run as soon as the debt has accrued; if it be

a debt to a merchant, as soon as one has stopped trading with him. To

the operation of this rule are some important exceptions. It does not

run in favor of a minor, married woman or insane or imprisoned person;

or not whenever or wherever they are not capable of contracting. But a

disability arising after the statute has begun to run in his favor

will not prevent it from running.

The Statute of Limitations generally bars the remedy or right to

pursue the debtor in a court of law, it does not extinguish the right

or debt, and therefore the right to pursue a debtor may be revived by

a new promise to pay. One may ask, is not a debtor a foolish man to

acknowledge that he is a debtor after the law has released him from

his debt? Yes, from a purely selfish point of view. Nevertheless, the

moral obligation remains, and happily all morality has not yet fled

from the world. One may ask, is not such a promise void because there

is no consideration received for it? No, for the reason that there was

a consideration for the original obligation, and this is sufficient

to sustain the renewed promise to pay it. In some states the statutes

provide that such an acknowledgment to pay a debt after the statute

has barred it, must be in writing, and signed by the debtor or his

agent. The most general rule is, to remove the bar of the statute,

there must be either an express promise to pay, or an acknowledgment

of the debt accompanied by an expression of willingness to pay it. To

simply acknowledge the existence of a debt is not enough, there must

be indicated or expressed a willingness to pay.

A debt may also be revived by part payment. Payment on account of the

principal, or payment of interest on the debt will prevent the statute

from running against it. Payment to have that effect must be made with

reference to the original debt and in such a way as to effect an

acknowledgment of it.

While a debtor may always apply a payment to any one or more of

different debts he owes his creditor, if he fails to do so the

creditor can make the application even to a debt which is already

barred by the statute, but his application will not remove the bar to

the remainder of the debt. To have that effect the appropriation must

be made by the debtor himself.

Statutes of limitation apply to many obligations, and the times or

dates at which they become outlawed or outside the scope of legal

redress, vary in the different states. In many of them an ordinary

book account or negotiable note is outlawed after six years, and

cannot be enforced after that time unless the debtor has revived it by

a new promise or part payment. A judgment against one usually runs

twenty years.

=Telegraph and Telephone.=--Though the business of a telegraph company

is public in its nature, it is not a common carrier, and it may

therefore set up reasonable regulations for the reception,

transmission and delivery of messages. As it is a quasi public

corporation, it must extend its services to all that apply therefor

and offer to pay the charges. And if refusing it may be compelled to

do these things. The company may charge more to one person than to

another when the service is unlike, though not enough to amount to an

unjust discrimination. The difference in charges must bear some

relation to the different services rendered.

A telephone company cannot legally discriminate between two competing

telegraph companies by giving one the telephone call word "Telegram"

and thereby depriving the other telegraph company of business. Nor can

a telephone company legally charge a higher rental for a telephone to

a telegraph company than to any other patron. Nor can a telegraph

company discriminate against another in refusing credit which is given

to other responsible parties.

A strike may be a sufficient excuse for failure to have sent messages

promptly, though not excusing a railroad company for failure to

deliver freight as if no strike had happened. A state may impose a

penalty on a telegraph company for failure to deliver promptly in the

state messages coming from other states. And a state may impose a

penalty on a telegraph company for failure to perform its clear common

law duty to transmit messages without unreasonable delay, and this

statute applies to messages to points outside the state if it relates

to delay within the state. A state statute prohibiting telegraph

companies from limiting their liability for the transmission of

telegrams within the state is constitutional. The state may prohibit a

telegraph company from transmitting racetrack news. A telegraph

company must transmit a message unless it contains indecent language.

Nor is it liable for libel in transmitting a telegram stating that a

person had been bought up.

It is reasonable for a telegraph company to close its office on

holidays, except two hours in the morning and two hours in the

afternoon, and therefore is not liable for delay in transmitting a

message because of this delay. The unauthorized writing out and

sending of a telegram in another person's name is a forgery.

When a telegram must pass over two connecting lines the receiving

company may require the sender to designate what route the message is

to take, and to pay an extra charge for the words indicating such

route. A telegraph company is not privileged in transmitting messages,

but they should not be made public, except to produce them when

legally required in court. Under the New York statutes it is a

criminal offense for a telegraph employee to divulge the contents of a

telegram to any other person than the addressee, except when it

relates to unlawful business. In that case the employee may give

information to the public officer who is prosecuting the unlawful

sender. It is a criminal offense to open or read a sealed telegram, or

to tap a telegraph wire in order to read messages in course of

transmission.

In regulating the receipt, transmission and delivery of telegraph

messages, the rules differ from those that are to be transmitted

within the state from the rules for interstate messages. The rules

with respect to the latter are governed by the Interstate Commerce

Act of 1910, state messages are governed by the laws of their

respective states. By the federal law, therefore, a telegraph company

providing one rate for unrepeated messages, and another and higher

rate for those repeated, may stipulate for a reasonable limitation of

its responsibility when the lower rate is paid. And if the contract

provides that for any damage resulting from sending the telegram, the

sender must give notice within sixty days, he is bound by this

stipulation, and is without redress if he delays to act beyond the

time.

=Torts or Wrongs.=--"A tort is an act or omission which unlawfully

violates a person's right created by the law, and for which the

appropriate remedy is a common law action for damages by the injured

person." The right that is violated is private and not public, which

marks off a tort from a crime. Again, the wrongful act may be a

violation of both a private and public right, in which case both the

individual and the state have a remedy against the wrongdoer. Thus A

without excuse attacks B and bruises his nose. B has an action to

recover damages against him for despoiling his countenance; the state

also may proceed against him in a criminal action for his breach of

the public peace. Another illustration may be given. A clerk embezzles

money from his bank. It sues him and perhaps his bondsmen and recovers

the money. Embezzlement, however, is a criminal offense, and the

recovery of the money taken does not affect in any way the right of

the state to proceed against the embezzler. Indeed, an individual who

has been wronged cannot by any restitution or settlement that he may

make with the wrongdoer impair the right of the state to punish him.

Torts or wrongs are very numerous for which the wrongdoer may be held

liable. The first to be mentioned is false imprisonment. The law

punishes false imprisonment as a crime; the person unlawfully

imprisoned also has a civil action for damages. A person is said to be

imprisoned "in any case where he is arrested by force and against his

will, although it be on the high street or elsewhere and not in a

house." Mere words are not an arrest. If an officer says, "I arrest

you," and you run away, there is no arrest. But if an officer touches

you and takes you into custody there is an arrest even though you run

away afterward.

A malicious prosecution is another wrong. A person who brings his

action for this wrong must prove four things: first, that the

prosecution has terminated in the complainant's favor; second, that it

was instituted maliciously; third, that it was brought without

probable cause; fourth, that it damaged or injured the complainant.

The term malice means something more than "the intentional doing of a

wrongful act to the injury of another without legal excuse." It means

that the original prosecutor was actuated by some "improper or

sinister motive." The term "probable cause" requires explanation.

Nothing is better settled, says one of the courts, than this, that

when the person who brings such an action against another "submits his

facts to his attorney, who advises they are sufficient, and he acts

thereon in good faith, such advice is a defense to an action for

malicious prosecution." That such advice may be a good defense a full

and honest disclosure of all the facts must be made to him. Such

advice will not serve as a screen if based on a fragmentary,

incomplete statement of facts.

A very common tort is an assault and battery. A person who threatens

another with immediate personal violence, having the means and

opportunity for executing the threat, commits an assault for which

damages may be recovered in a proper action. To raise a club over the

head of another and threaten to strike if he speaks, would be an

assault. "Absence of intent," says Burdick, "on the part of the

defendant to put the plaintiff in fear of bodily harm, is pertinent to

the defense that the injury was accidental, or due to a practical

joke."

A battery, as distinguished from an assault, is the inflicting of

actual violence on a person, though the degree of violence is

immaterial. The least touching of another in anger, or as a

trespasser, is a battery. Forcibly cutting the hair of a person

without legal authority, or injuring the clothing on a person, or

snatching an article from his hand, or cutting a rope or belt attached

to him, or striking a horse on which one is riding, or that is

attached to his carriage, or overturning a chair in which he is

seated, is a battery; likewise, if the assailant throws a stone or

missile which hits the other, or spits in his face.

There may be a justifiable assault, the law has long recognized this.

A public officer is justified in using force in performing his duty,

so is a private individual in defending himself, his family or his

property, or in enforcing lawful discipline at home, in school, on

board a ship, or other public conveyance, or in restraining one

mentally or physically incapacitated.

Another injury for which the law furnishes redress is that affecting

reputation and character. It is true that the damages one may recover,

however great, may be an inadequate redress, yet it is the best the

law can do. The party injured by a libel or slander brings his action

and wins his victory over his enemy, yet the battlefield remains and

the scar of the wound inflicted. The issue in an action for defamation

is not the character of the plaintiff, but the wrongfulness of the

particular statement. Therefore "it is not a defense to a libel or

slander that the plaintiff has been guilty of offenses other than

those imputed to him, or of offenses of a similar character; and such

facts are not competent in mitigation of damages."

As the gist of the tort consists of the injury done to one's

reputation, the defamatory statement must have been published. A

person has no cause of action against another for defamatory words

spoken to him; they must have been heard by a third person. The

plaintiff may make out a case by showing that the libel was contained

on the back of a postal card, or by other evidence that makes it a

matter of reasonable inference that the libelous matter was brought to

the actual knowledge of a third person.

A person who voluntarily engages in the interchange of opprobrious

epithets and mutual vituperation and abuse has been held to license

his antagonist to reply in like manner. "The right to answer a libel

by libel is analogous to the right to defend one's self against an

assault upon his person. The resistance may be carried to a successful

termination, but the means used must be reasonable." Common carriers,

news-vendors, proprietors of circulating libraries and others who are

merely unconscious vehicles for carrying defamation generally escape

liability for its publication.

Putnam's Handy Law Book for the Layman · 第 17 / 24 段