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Small capitals have been replaced by full capitals.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).