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.