CHAPTER I

Transcriber's Note.

Apparent typographical errors have been corrected. The use of hyphens

and of accents has been rationalised.

Italics are indicated by _underscores_ and bold font by =equal signs=.

Small capitals have been replaced by full capitals. "Oe" ligatures have

been removed.

A notice of other works on shipping has been moved to the end of the

book. In the Table of Contents the heading "APPENDICES" has been shifted

to precede the lines that list the appendices themselves.

Text in smaller font in the main body of the work (mostly comprising

comments by the courts on particular cases) has been indented.

Appendix I (A Summary of the Navigation Laws of the United States) has a

separate author and its own Table of Contents. Its sections and

subsections are each preceded by two blank lines.

Appendix II (The Merchant Marine Act of 1920) comprises 39 sections with

section 30 being divided into subsections 30(A) to 30(X). These

subsections, as well as the sections of the appendix, are each preceded

by two blank lines.

THE LAW OF THE SEA

SHIPPING SERIES

TRAINING FOR THE STEAMSHIP BUSINESS

EDITORS:

EMORY R. JOHNSON PH.D., SC.D.

Dean of the Wharton School of Finance and Commerce,

University of Pennsylvania.

ROY S. MACELWEE, PH.D.

Director of the U. S. Bureau of Foreign and Domestic Commerce.

THE LAW OF THE SEA

A MANUAL OF THE PRINCIPLES OF ADMIRALTY LAW

FOR STUDENTS, MARINERS, AND SHIP OPERATORS

BY

GEORGE L. CANFIELD

OF THE MICHIGAN BAR

AND

GEORGE W. DALZELL

OF THE BAR OF THE DISTRICT OF COLUMBIA

WITH A SUMMARY OF THE NAVIGATION LAWS

OF THE UNITED STATES

BY

JASPER YEATES BRINTON

[Illustration: Publisher's Mark]

D. APPLETON & COMPANY

NEW YORK LONDON

1921

COPYRIGHT, 1921, BY

D. APPLETON AND COMPANY

PRINTED IN THE UNITED STATES OF AMERICA

EDITORS' PREFACE

This is the third volume of a series of manuals dealing with the

business of ocean shipping and transportation. The first volume

published dealt with steamship traffic operation and was written by

Professor G. G. Huebner. The second volume was upon "Marine Insurance,"

the author being Professor S. S. Huebner. In the first volume published,

the following preface appeared:

"This volume upon the management of ocean steamship traffic is the first

of a series of manuals designed to assist young men in training for the

shipping business. The necessity for such a series of manuals became

evident when, as a result of the great war, the tonnage of vessels under

the American Flag was, within a brief period, increased many fold. To

carry on the war and to meet the demands of ocean commerce after the

war, the United States Government, through the Shipping Board and

private shipyards, brought into existence a large mercantile marine. If

these ships are to continue in profitable operation under the American

Flag, the people of the United States must be trained to operate them.

Steamship companies, ship-brokers and freight-forwarders must all be

able to secure men necessary to carry on the commercial and shipping

activities that make use of the ships. A successful merchant marine

requires ships, men to man the ships, and business organization to give

employment to the vessels.

"In its Bulletin upon 'Vocational Education for Foreign Trade and

Shipping' (since republished as 'Training for Foreign Trade,'

Miscellaneous Series No. 97, Bureau of Foreign and Domestic Commerce,

for sale by the Superintendent of Documents), the Federal Board for

Vocational Education includes among other courses suggested for foreign

trade training two shipping courses upon subjects with which exporters

should be familiar, namely, 'Principles of Ocean Transportation' and

'Ports and Terminals.' Although such general courses are helpful to the

person engaging in the exporting business, a training for the steamship

business as a profession requires much greater detail in the knowledge

of concrete facts of a routine nature. An analysis was made of the

various divisions of the steamship office organization and it was

suggested to the United States Shipping Board that as no literature

existed of sufficient practicability and detail several manuals should

be written covering the principal feature of shore operations.

"The response of the Shipping Board was hearty. The Shipping Board

appointed Mr. Emory R. Johnson of its staff, then conducting an

investigation of ocean rates and terminal charges, as its editor. The

Federal Board for Vocational Education designated Mr. R. S. MacElwee,

then engaged in the preparation of studies in foreign commerce. Before

the project was completed Mr. Johnson severed his connection with the

Shipping Board in 1919, and January, 1919, Mr. MacElwee became Assistant

Director of the Bureau of Foreign and Domestic Commerce, Department of

Commerce. The interest of the editors in the project did not terminate,

however, and their close coöperation has been voluntarily continued out

of conviction that the works will be helpful.

"The books have been written with a view to their being read by

individual students conducting their studies without guidance, also with

the expectation that they will be used as class text-books. Doubtless

colleges, technical institutes and high schools having courses in

foreign trade, shipping business and ocean transportation, will desire

to use these volumes as class texts in a manner outlined in 'Training

for the Steamship Business,' by R. S. MacElwee, Miscellaneous Series 98,

Bureau of Foreign and Domestic Commerce, Superintendent of Documents,

Washington, D. C. It is expected that evening classes and part-time

schools, organized under the patronage of the Federal Board for

Vocational Education, Chambers of Commerce, and other interested

organizations will find the manuals useful. Should these volumes

accomplish the desired purpose of giving the American people a somewhat

greater proficiency in the business of operating ships, they will have

proven successful."

This volume on "The Law of the Sea" is intended to present the

principles of admiralty law in concise and practical form. It is a

manual for the student, the owner, or the master of a vessel who may

desire to acquire information concerning the main facts and principles

of maritime law without attempting to acquire such a mastery of the

subject as is possessed by an admiralty lawyer.

THE EDITORS

AUTHORS' PREFACE

This book is not an exhaustive treatise or a compendium of authorities.

It is designed to be an outline of the subject primarily for the

student, more especially the student layman who desires to inform

himself of the general principles of admiralty law.

It is impracticable in a work of this sort to reprint the statutes

relating to the various subjects of admiralty jurisprudence, since the

federal statutes alone would constitute a volume more extensive than

this. The salient features of the statutes have been noticed and

references given to all of them. They are to be found in the Revised

Statutes, the Compiled Statutes, the Statutes at large, and in the

compilation of Navigation Laws published by the Bureau of Navigation,

U. S. Department of Commerce.

The subject of marine insurance is treated in another volume of this

series and is, therefore, omitted here.

In the chapter on Collision, we have not discussed the fixing of

liability under particular circumstances of navigation, such as

collision between vessels meeting, vessels passing, etc. While these

matters are treated in most text-books, their discussion belongs largely

to navigation and is useful only in a legal treatise for the purpose of

determining liability after an accident has occurred. It could not guide

the reader to avoid collision liability, and is therefore omitted in a

work intended rather as a guide for the avoidance of trouble than as a

dictionary of remedies.

For the same reason, only the most cursory sketch of admiralty procedure

has been given. That is the province of the proctor, who must be

consulted when litigation has become necessary.

The reader will find that a few subjects treated in the body of the work

are also covered in Appendix I (Summary of the Navigation Laws). This is

due to the fact that the appendix was prepared for independent

publication. The repetitions are not numerous and, as the treatment is

different in form, it will be found advantageous to the student rather

than otherwise.

Acknowledgment is made to Miss Florence A. Colford of the District of

Columbia bar, for valuable and painstaking aid.

G. L. C.

G. W. D.

CONTENTS

CHAPTER PAGE

EDITORS' PREFACE v

AUTHORS' PREFACE ix

I. MARITIME LAW 1

1. General Maritime Law 1

2. Sources in United States 1

3. Courts 2

4. Jurisdiction 2

A. The Ship 2

B. The Waters 3

5. Maritime Contracts and Torts 4

6. Personality of Ship 5

7. Limits of Liability 5

8. Equitable Principles 6

9. General Considerations 6

II. TITLE AND TRANSFER 10

1. How Title Acquired 10

2. Registration and Regulation 10

3. Shipbuilding Contracts 10

4. Not Within Admiralty Jurisdiction 12

5. Enrollment and Registration 12

6. Ships Entitled to 12

7. Incidents of Enrollment or Registration 13

8. How Obtained 14

9. Recording of American-built Foreign Ships 16

10. Name 16

11. Sale 17

12. Transfer of Flag and Sales to Foreigners 17

13. Admiralty Sales 18

14. Sales by Trustees and Executors 19

15. Sales by Mortgagee 19

16. Sales by Master 19

17. Sale of Ship at Sea 22

18. Appurtenances 23

19. Warranties and Representations 23

III. OWNERS AND MANAGERS 25

1. Who May Be 25

2. Part-owners 25

3. Corporations 27

4. Majority Interest 28

5. Minority Interest 28

6. Suits Between Part-Owners 30

7. Authority of Owner 30

8. Obligation of Owner 30

9. Liability of Owner 31

10. Temporary Ownership 33

11. Managing Owner 36

12. Compensation and Lien 37

IV. THE MASTER 39

1. Appointment and General Authority 39

2. Personal Liability 41

3. Restriction on Authority 41

4. Rights of Master 43

5. Wages 43

6. Lien 44

7. Relations to Cargo 45

8. Power to Sell or Mortgage Cargo 46

9. Power to Sell Vessel 50

10. Power to Create Liens 50

11. Duties on Disaster 51

12. Log Book and Protests 52

V. SEAMEN 54

1. Favored in Maritime Law 54

2. Who Are Seamen? 54

3. Contract 55

4. Wages Secured 55

5. Forfeitures and Punishments 55

6. Personal Injuries 56

7. Duties in Disaster 58

8. Offenses of Seamen 59

9. When Entitled to Leave Ship 60

10. Desertion 60

11. Self-Defense 61

12. Lien for Wages 61

13. Shipping Articles 63

14. Wages and Effects 64

15. Protection and Relief 66

VI. CARRIAGE BY SEA 69

1. Common and Private Carriers 69

2. Liabilities 69

3. Seaworthiness 70

4. Loading and Stowage 72

5. Wreck or Stranding 75

6. Arrival and Discharge 76

7. Freight and Demurrage 77

8. Unfair Freight Rates 79

9. Passengers 79

10. Reciprocal Duties 79

11. Baggage 81

12. Personal Injuries 81

13. Loss of Life 83

VII. CONTRACTS OF AFFREIGHTMENT, BILLS OF LADING

AND CHARTER PARTIES 86

1. Definitions 86

2. Seaworthiness 87

3. Deviation 88

4. Perils of the Sea 89

5. Fire 89

6. Restraint of Princes 90

7. Freight 91

(a) Dead Freight 91

(b) When Freight Is Earned 91

8. Contracts of Affreightment 91

9. Bills of Lading 92

10. Statements in Bills of Lading 96

11. Negotiability of Bills of Lading 98

12. Duration of Carrier's Liability 99

13. Exceptions in Bills of Lading 99

14. Valuation 99

15. Notice of Claim 100

16. Nature and Effect of Charter Party 100

17. Subcharters 101

18. Provisions in Charter Parties 101

(a) Safe Port 101

(b) Insurance 102

(c) Redelivery 102

(d) Cancellation and Withdrawal 102

(e) Breakdown Clause 102

19. Lien for Freight and Charter Hire 103

20. Liability for Loss or Damage 104

21. Demurrage and Laydays 105

22. Breach of Charter 106

23. Dissolution of Charter 107

VIII. LIABILITIES AND LIMITATIONS 112

1. Liabilities of Ship 112

2. Liabilities of Owner 112

3. Liabilities of Charterer 113

4. Liabilities of Mortgagee 113

5. Liabilities of Underwriters 113

6. Theories of Limitation 114

7. Contract Limitations 115

8. The Federal Statutes 115

9. "Privity or Knowledge" 117

10. Harter Act 119

11. Insurance 123

12. Single Ship Companies 123

IX. MARITIME LIENS 125

1. How Created 125

2. Essential Value 127

3. Independent of Notice of Possession 127

4. Secret 127

5. Diligence Required 127

6. Rules of Diligence 127

7. Recording Liens on "Preferred Mortgage" Vessels 128

8. Limited to Movable Things 129

9. Priorities 129

10. Lien for Repairs and Supplies 131

11. Not Sole Remedy 134

12. How Divested 134

13. State Liens 135

14. Builders' and Mechanics' Liens 136

15. Foreign Liens 136

16. Enforcement of Liens 137

X. MORTGAGES AND BONDS 138

1. Definitions 138

2. Bottomry Bonds 138

3. Respondentia 140

4. Necessity for Advances 141

5. Mortgages 141

6. Are Mortgages Maritime Contracts? 141

7. When Postponed to Other Liens 142

8. Form 143

9. Recording 144

10. Rights of Mortgagee 144

11. Liabilities of Mortgagee 145

12. Transfer and Payment 145

13. Foreclosure 145

XI. COLLISION 148

1. Definition 148

2. Liability Dependent on Negligence 148

3. Tests of Negligence 149

4. The Regulations 150

5. Damage to Ship 151

6. Damage to Cargo 152

7. Damage to Crew and Passengers 155

8. Contribution 155

9. Division of Damages 155

10. Lien 156

11. Limitation of Liability 157

12. Remedies 157

13. Evidence 158

XII. Towage and Pilotage 159

1. Definition 159

2. Towage Service 159

3. Compensation 160

4. Duty of Tug 160

5. Duty of Tow 165

6. Negligence 165

7. Liability for Damage 168

A. As Between Tug and Tow 168

B. To Third Parties 169

8. Pilots 172

9. Duties 173

10. Authority 174

11. Compensation 174

12. Negligence 175

13. Liability of Ship 177

XIII. SALVAGE AND GENERAL AVERAGE 180

1. Definitions 180

2. What May Be Salved 180

3. Salvor's Lien 181

4. Amount of Reward 182

5. Who May Be Salvors 183

6. Distinction Between Towage and Salvage 184

7. Distribution of Salvage Award 185

8. Distribution of Liability for Payment 186

9. Statutory Regulations 187

10. Instances of Salvage Services 187

11. Distinction Between General and Particular Average 189

12. Essential Elements 189

13. Instances of General Average 190

14. The Adjustment 191

XIV. CRIMES COMMITTED AT SEA 193

1. Definition 193

2. Admiralty Criminal Jurisdiction 193

3. Place of Trial 194

4. Offenses Not Consummated on Shipboard 194

5. Penalties and Forfeitures 195

6. Federal Criminal Code 196

7. Concurrent Jurisdictions 197

8. Limitations of Prosecutions 198

9. Piracy 198

10. Barratry 199

11. Failure to Equip with Radio Telegraph 200

12. Failure to Disclose Liens 200

13. Mutiny 200

XV. WRECKS AND DERELICTS 202

1. Definitions 202

2. Wrecks Under the Common Law 202

3. Wrecks Within Admiralty Jurisdiction 204

4. Liabilities of Owner of Wreck 205

5. Rights of Landowner 205

6. Owner's Rights 206

7. Rights of Government 206

8. Derelicts 207

9. Finders 207

XVI. WHARFAGE AND MOORAGE 209

1. Definition 209

2. Right to Erect 209

3. Duties of Proprietor 210

4. Rights of Proprietor 212

5. Wharfage Compensation 213

6. Lien 214

7. Injuries to Wharves 214

8. Anchorage 215

9. Obstructions to Navigation 216

XVII. ADMIRALTY REMEDIES 218

1. Proceedings in Rem 218

2. When Proceedings in Rem Will Lie 219

3. The Libel 219

4. The Writ or Process 220

5. Owner's Rights 220

6. Default 220

7. Interlocutory Sales 221

8. Intervenors 221

9. Costs and Expenses 221

10. Proceedings in Personam 222

11. Process in Personam 222

12. Proceedings in Limitation of Liability 222

APPENDICES

I. SUMMARY OF NAVIGATION LAWS OF THE UNITED STATES 225

II. THE MERCHANT MARINE ACT OF 1920 263

III. PROTEST 290

TABLE OF CASES 291

INDEX 299

THE LAW OF THE SEA

CHAPTER I

MARITIME LAW

=1. General Maritime Law.=--Navigation and commerce by sea are regulated

by maritime law. This is a branch of jurisprudence which developed out

of the necessities of the business with which it has to deal. It is,

therefore, as old as navigation itself and many of its rules can be

traced back to antiquity. It extends over all navigable waters and is

enforced by courts of admiralty.

This law is to be found in the statutory laws of different countries,

the decisions of the courts and text-books on the subjects involved.

Back of the laws of each particular country is what is termed the

general maritime law or common law of the sea, which, like the common

law of the land, consists of that general mass of usages and customs

which exists by the universal consent and immemorial practice of those

doing business by sea. It is effective within particular countries only

so far as they consent to follow it, as is the case with international

law, of which it is really a part. In general, however, it is recognized

and enforced wherever the local laws are silent in regard to maritime

transactions.

=2. Sources in United States.=--In the United States, the maritime law

is to be found in the Statutes or Acts of Congress and decisions of the

Federal Courts. These decisions are published in the United States

Reports, Federal Cases and Federal Reporter. In addition there are

numerous text-books, among which may be mentioned Parsons on _Shipping

and Admiralty_; Benedict's _Admiralty_; Hughes on _Admiralty_; Desty on

_Shipping and Admiralty_; Spencer on _Collisions_ and Flanders on

_Maritime Law_. The highest authority is, of course, to be found in the

_Decisions of the Supreme Court of the United States_.

=3. Courts.=--The Constitution provides that the judicial power of the

United States shall extend to all cases of admiralty and maritime

jurisdiction; this jurisdiction is confided to the District Courts, of

which there are several in each state; appeals lie from their decisions

to the Circuit Courts of Appeals; there are nine of these, corresponding

to the nine judicial circuits into which the nation is divided; the

Supreme Court has a general supervisory jurisdiction over all other

courts. While parties having maritime controversies may resort to state

courts in cases where the common law affords a remedy, the admiralty

jurisdiction of the federal courts is so much more effective in all

matters pertaining to the ship that they handle practically all the

litigation on the subject.

=4. Jurisdiction.=--_a. The Ship._--According to the maritime law of the

United States the ship is not within the jurisdiction of the admiralty

until she is completed; while she is engaged in commerce and navigation,

that jurisdiction is exclusive; when she becomes a wreck and passes out

of the business for which she was intended, the jurisdiction relaxes and

is finally withdrawn. Therefore our admiralty does not take cognizance

of matters growing out of the building of the ship nor of the

controversies arising after she is broken up.

It sometimes becomes a question of some difficulty whether a particular

object is or is not a vessel and subject to admiralty jurisdiction. Rev.

Stat., § 3, define "vessel" as including "every description of

watercraft or other artificial contrivance, used or capable of being

used as a means of transportation by water," and in General Cass, 1

Brown Adm. 334, it was said:

The true criterion by which to determine whether any watercraft or

vessel is subject to admiralty jurisdiction is the business or

employment for which it is intended, or is susceptible of being used,

or in which it is actually engaged, rather than size, form, capacity or

means of propulsion.

In one or two old cases it was held that a dredge was not a ship but the

preponderance of authority is to the effect that a dredge is a ship and

within admiralty jurisdiction. The question whether a raft of logs is a

vessel has been variously decided. If it be a mere pile or series of

floating logs it is probably not a vessel, but rafts made of cross-ties,

used as a convenient mode of bringing them to market, manned by crew,

who lived thereon during the voyage and propelled by the current and by

poles and oars, have been held to be a ship and subject to admiralty

jurisdiction.[1] So, also, a floating bathhouse, not permanently moored,

but which was towed from place to place has been held to be a vessel;

whereas a floating drydock, kept permanently moored, is not a vessel.

The question whether barges and floats are subject to admiralty

jurisdiction has been the subject of frequent adjudication, and while

some old cases held that they were not, the tendency of the modern

decisions is to hold that such crafts are vessels. In the Mac, 7 P. D.

126, the question was whether a hopper barge was a ship. It was decided

in the affirmative by the English Court of Appeal, Lord Justice Brett

saying:

The words "ship" and "boat" are used; but it seems plain to me that the

word "ship" is not used in the technical sense as denoting a vessel of

a particular rig. In popular language ships are of different kinds;

barques, brigs, schooners, sloops, cutters. The word includes anything

floating in or upon the water, built in a particular form, and used for

a particular purpose. In this case the vessel, if she may be so called,

was built for a particular purpose; she was built as a hopper-barge;

she has no motive power, no means of progression within herself. Towing

alone will not conduct her; she must have a rudder; and, therefore, she

must have men on board to steer her. Barges are vessels in a certain

sense; and, as the word "ship" is not used in a strictly nautical

meaning, but is used in a popular meaning, I think that this

hopper-barge is a "ship".... This hopper-barge is used for carrying men

and mud; she is used in navigation; for to dredge up and carry away mud

and gravel is an act done for the purposes of navigation. Suppose that

a saloon-barge, capable of carrying 200 persons, is towed down the

river Mersey in order to put passengers on board of vessels lying at

its mouth; she would be used for the purposes of navigation, and I

think it equally true that the hopper-barge was used in navigation.

_b. The Waters._--The waters included in admiralty jurisdiction are,

first, the sea; second, streams in which the tide ebbs and flows; and

third, waters which carry substantial water-borne commerce. The fact

that a navigable stream may lie entirely within the borders of a single

state and thus be unnavigable for interstate commerce, does not exclude

the admiralty jurisdiction. Nice questions occasionally come before the

courts in determining whether or not a particular body of water is

navigable and therefore within the admiralty jurisdiction. There seems

to be no precise test, beyond the capacity of the stream to carry

substantial commerce.

=5. Maritime Contracts and Torts.=--The general subject matter of

admiralty jurisdiction is maritime contracts and maritime torts or

injuries. A contract is maritime when it relates to the ship as an

instrument of commerce and navigation. Thus the hiring of a master, the

purchase of supplies, the charter-party or bill-of-lading, an agreement

of towage, and the like are maritime contracts. The principle by which

to determine whether a contract is maritime in its nature, was laid down

by the Supreme Court in the case of the Belfast, 7 Wall. 624.

"Contracts, claims, or service, purely maritime and touching rights and

duties appertaining to commerce and navigation, are cognizable in the

admiralty courts." And in Insurance Co. v. Dunham, 11 Wall. 1:

As to contracts, it has been equally well settled that the English rule

which concedes jurisdiction, with a few exceptions, only to contracts

made upon the sea and to be executed thereon (making locality the test)

is entirely inadmissible and that the true criterion is the nature and

subject-matter of the contract, as whether it was a maritime contract,

having reference to maritime service or maritime transactions.

* * * * *

Perhaps the best criterion of the maritime character of a contract is

the system of law from which it arises and by which it is governed. And

it is well known that the contract of insurance sprang from the law

maritime, and derives all its material rules and incidents therefrom.

The test is not altogether definite, nor always easy to apply. As was

said in Grant _v._ Poillon, 20 How. 162: "It may be difficult, if not

impracticable, to state with precision the line of this jurisdiction,

but we may approximate it by consulting the decisions of our own courts."

A tort is a wrong, independent of contract, that is, it is the breach of

a duty which is imposed by law and not by contract. A tort is maritime

when it is committed on navigable waters. Injuries to sailors on

shipboard, damage to cargo and collision at sea are maritime torts.

Illustration of maritime torts and a distinction between land and

maritime torts will be found in the chapters on Collisions and Maritime

Liens, _infra_. The case of Hough _v._ Western Transportation Co., 3

Wall. 20, may be mentioned here. A vessel made fast to a wharf took fire

by the negligence of the master and crew. The fire was communicated to

the wharf and destroyed it with the buildings adjacent thereto. The

court held that although the origin of the wrong was on the water, the

substance and consummation of the injury occurred on land and the case

was not within admiralty jurisdiction.

Salvage and general average are, strictly, neither contract nor tort,

but are within admiralty jurisdiction by virtue of the general law.

=6. Personality of Ship.=--In considering the maritime law, it is

important to remember that one of its underlying ideas is that the ship

has a personality of her own. In the common law, or law of the land,

there is a similar notion in regard to corporations; they are legal

persons quite apart from the stockholders who compose them. So the ship

has a legal individuality quite apart from that of her owners. She may

sue in the name of her owner and be sued in her own name. The principle

has been expressed by the Supreme Court:

A ship is born when she is launched, and lives so long as her identity

is preserved. Prior to her launching she is a mere congeries of wood

and iron--an ordinary piece of personal property--as distinctly a land

structure as a house, and subject only to mechanics' liens created by a

state law and enforceable in the state courts. 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. She may also become a quasi bankrupt;

may be sold for the payment of her debts, and thereby receive a

complete discharge from all prior liens, with liberty to begin a new

life, contract further obligations, and perhaps be subjected to a

second sale. Tucker _v._ Alexandroff, 183 U. S. 424, 438.

=7. Limits of Liability.=--It is important in all dealings with the

ship, whether by way of investment of capital, or labor, or by

entrusting goods to her for carriage, or by making repairs or furnishing

supplies, to remember that the ship may be both the basis and the limit

of financial liability, unless her owners in some way add their personal

responsibility thereto. It was appreciated at an early day in the

history of navigation that capitalists would not invest in ships unless

there was some limit to their liability on that account. Ships are

wanderers and capitalists can seldom navigate them. No form of

investment can produce such large liabilities at any time. The owners

can not supervise them in person but must entrust their operations to

others beyond their control. Hence, out of the necessities of the

situation, the doctrine developed that the ship must be treated as an

individual, responsible for her own acts, and that the owner's

responsibility was limited to his investment unless he personally went

beyond this protection.

=8. Equitable Principles.=--The maritime law proceeds on equitable

principles and endeavors to accomplish substantial justice between

litigants, with brevity, celerity and simplicity. It is impatient at

technicalities and cunning bargains. Its jurisdiction is not limited by

any financial amount or geographical boundaries, so long as the

transaction is maritime in its nature. It is quick to redress unfair

dealing or oppression. There is no distinction as to the persons who may

invoke its aid. It is a very important part of modern commercial law, as

it was originally of the old law merchant, and therefore is very

practical and responsive to the demands of business; but it has also had

the benefits of the accumulated wisdom of many progressive ages before

this one, and is therefore cautious about untried innovations or

thoughtless experiments. Its claim to the attention of mankind rests

only on the inherent equity and justice of its rules and the celerity

with which they may be applied to the solution of disputes, and without

these characteristics it would have been long since absorbed into the

common law of the land.

=9. General Considerations.=--The study of maritime law has the double

attraction of historical and practical interest. It deals with the legal

affairs of one of the most important phases of modern commercial

activity and its problems are solved by precedents from a remote past.

It is not a law which is confined within the narrow circle of the

present or the limits of particular countries. It is ancient and

international. At a time when this country is on the threshold of a

revival of its merchant marine, and when there is also a general feeling

that it is necessary to proceed to a constructive readjustment and

restatement of our entire body of law, the law of the sea, which is

really part of the law merchant, must not be neglected. The present is

imperfectly understood when the past is forgotten and it is difficult to

appreciate any rule without considering its origin. 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. Through it

all appears a constant search for justice, a sincere effort to

accomplish what is right and fair for all concerned.

Here one may trace, for example, the rule of general average, the

doctrine that what is sacrificed for the common benefit shall be

compensated by a common contribution, a rule of such plain and simple

equity that the failure of other codes to adopt it is a constant

surprise. It appears in a fragment of Greek legislation and forms the

text for a chapter in the Digest of Justinian. Its antecedents were

probably Phoenician. It survived the Roman Empire in the traditions of

seafaring men and reappears in the compilation of sea laws which

Coeur-de-Lion revised on his return from the Holy Land, the Rolls or

Judgments of Oléron. The Black Book of the admiralty preserves it in

London. It may be traced through the Middle Ages down to the

York-Antwerp Rules of 1890 and the practice of adjusters of the present

day.

Or one may consider the treatment of employer's liability for injuries

received in the course of the employment without his personal fault. Is

vicarious liability the true test or the doctrine of fellow service? The

merchants of the Mediterranean had the problem in the operations of a

very large and extended commerce and the maritime law evolved the

doctrine that justice requires that one injured in the service of the

ship should be cured at the expense of the ship, and have his wages but

no more. The last word on the real equity of this solution of a

perplexing economic question remains to be said, perhaps, but the

student can trace its development and application through many centuries

down to the current decisions of our own Supreme Court.

On no other branch of law have tradition and custom exercised a greater

influence. It grew out of the necessities of navigation and commerce by

sea and remains substantially uniform in spite of forms of government,

racial habits and local innovations. In its essence, it is less

susceptible of statutory modification than the common law and careless

legislation has had only local effects, diverting business into other

channels but ineffective to change the substance of the law. Maritime

commerce is naturally free and the wisest commercial governments are

those which regulate it least. Its freedom is a direct implication from

the doctrine of the natural freedom of the seas. The extent to which

governments may profitably regulate it without impairing its usefulness

or diverting the current to other shores may be found in the history of

this law. Underlying principles are the same whether ships move by sail

or steam or electricity or are great or small. There have been large

vessels before the twentieth century and an equivalent commerce. The law

has remained the same. Men pay damages every day in some of our ports

for overlooking rules that were current in Roman times and needless

litigation is carried through appellate courts because of professional

and judicial failures adequately to investigate the underlying

principles of the maritime law.

The opportunities for the student are large and inviting. If this

country is to do its part in the commerce of the future, its own

maritime laws must be restated and reformed. This means not only the

formal statutes and department regulations but also the great mass of

judicial opinions of more than a hundred years. All are intertwined with

each other and the result is chaotic. The fault has not been in the

underlying principles of the maritime law but in legislation and

interpretation. Our peculiar system has left the final word in the

majority of decisions to judges trained in the common law and not

professionally acquainted with any other. The result calls for the

treatment which Justinian administered to the incongruous compilations,

statutes and reports of his time. The student, either of business,

history or law, who will apply himself to an investigation of the law of

the sea and ascertain its simple fundamentals will not only have an

interesting and profitable occupation but also be in a position to

contribute substantially to the public welfare.

REFERENCES FOR GENERAL READING

_The American Admiralty_, Chapters I-XII, E. C. Benedict. Albany, N. Y.,

1910; Banks & Company.

_Maritime Law_, Chapters I-II, Henry Flanders. Boston, 1852; Little,

Brown & Co.

_Commentaries on American Law_ (13th ed.), Lectures XLV-XLIX, James

Kent. Boston, 1884.

_Marine Insurance_, Introduction 1-55, John Duer. New York, 1845;

Voorhies.

_Introduction historique à l'étude du droit commercial maritime_, Arthur

Desjardins. Paris, 1890; A. Durand et Pedone-Lauriel.

_Maritime Law_, Albert Saunders. London, 1901; Sweet Maxwell, Ltd.

_The Rhodian Sea-Law_, Walter Ashburner. Oxford, 1909; The Clarendon

Press.

_History of Admiralty Jurisdiction_, R. H. Dana. 5 American Law Review

581.

[1] "The first vessels were rafts. The raft is the parent of the modern

ship" (Seabrook v. Raft, 40 Fed. 596).

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