THE MASTER
=1. Appointment and General Authority.=--The master is the commander of
a merchant vessel. He has full charge of, and personal responsibility
for the navigation and control of the ship, passengers, crew and cargo
as the representative and confidential agent of the owner. The position
is one of the most dignified and responsible known to the law.
In order to have the ship seaworthy, an owner must provide a master who
is fully competent in respect of care, skill and honesty, a man of sound
judgment and discretion; and in general, there must also be provided one
of sufficient ability to supply his place, in case of accident or
disability. (The Niagara, 21 How. (U. S.) 7; 2 Parsons Sh. & Ad. 1.)
Correspondingly, he is an officer to whom great power and wide
discretion are necessarily confided. His authority is summary and often
absolute, especially at sea, and can seldom be resisted by those over
whom he is placed--as Chancellor Kent has expressed it: "He should have
the talent to command in the midst of danger, and courage, and presence
of mind to meet and surmount extraordinary perils. He should be able to
dissipate fear, to calm disturbed minds, and inspire confidence in the
breasts of all who are under his charge, in tempests as well as in
battle. The commander of a ship must give desperate commands; he must
require instantaneous obedience. He must watch for the health and
comfort of the crew, as well as for the safety of the ship and cargo. It
is necessary that he should maintain perfect order, and preserve the
most exact discipline under the guidance of justice, moderation and good
sense."
Our statutes require that only those whom the law has examined and
approved shall occupy that position. The master must be an American
citizen (Rev. St. § 4139); he must have a license from the Inspectors,
who are charged to examine into his character and habits, as well as his
technical qualifications (§ 4439);[5] he is sworn to the performance of
the duties of his office (§ 4445); he must exhibit his license to the
public (§ 4446); he is subject to summary punishment for incompetency
(§ 4450); and his personal liability cannot be limited, as the owners
may by law. In short the law contemplates the selection of picked men as
masters in the merchant marine, and forbids the employment of others.
No formalities are required in his appointment by the owner. Any
authorization which would suffice to otherwise create the relation of
master and servant, or principal and agent, is enough (The Boston,
Blatch. & H. 309). His contract need not be in writing, even if for more
than one year. His wages are a matter of contract; he has no lien on the
ship (The Nebraska, 75 Fed. 598), unless, possibly, one is created by
the local law of the ship's flag.
In case of disaster, his duty requires him to stay by the ship as long
as there is any possibility of good resulting therefrom. The popular
phrase that "the captain should be the last man to quit the ship" is
well founded in law (The Niagara, 21 How. (U. S.) 7).
His authority is generally implied and is according to the law of the
ship's flag. Generally speaking, he is the owner's agent and his
authority extends to all matters within the scope of his appointment.
Where the owner is present, or easily accessible, this authority is
narrowed, but otherwise it may be very broad, and measured only by the
necessities of the situation, and the use and employment of the ship.
On shipboard, his authority is supreme, except, possibly, in the
presence of the owner.
He has power to enforce discipline and inflict punishment, not unlike
that in the relationship of parent and child, or teacher and pupil, save
that he is forbidden by statute to inflict corporal punishment (Act of
March 4, 1915). The old flogging days, therefore, are over, and the
master who inflicts corporal punishment is guilty of a crime. He may, in
proper cases, discharge or disrate members of the crew.
On the other hand, the law charges him with the duty of seeing that the
crew has sufficient provisions (§ 4564); proper medical care (§ 4569);
protection against unlawful violence, and the like; and he is criminally
liable for abandoning sailors in a foreign port (§ 5363).[6]
=2. Personal Liability.=--His personal liability is practically
unlimited. The owner may confine his liability to the value of the ship
but the master has no such privilege. Thus materialmen may sue the
master personally for supplies and repairs (General Admiralty Rule
12);[7] the sailors may sue him for their wages (Rule 13); the pilot,
for pilotage (Rule 14); suits for collision may be brought against him
alone (Rule 15), and he is responsible for moneys loaned the ship in a
foreign port (Rule 17); so, also he is liable for cargo injured by the
ship and may be sued by the underwriters therefor (Co. _v._ Dexter, 52
Fed. 152).
=3. Restriction on Authority.=--The master is the owner's agent in all
matters fairly within the scope of his authority but has no more
authority to bind him than any other special agent. He is not a general
agent and his powers are usually confined to the property in his charge.
In cases of necessity, when the owner is not present, his authority is
very broad but it is correspondingly restricted when the owner is
present. He cannot bind the owner personally beyond the value of the
ship and freight pending; he cannot vary or annul the owner's
agreements; he cannot make a promissory note binding on the owner; or
bind him for cargo not actually on board by a bill-of-lading;[8] or
admit an invalid claim; nor purchase a cargo on his account.
In dealing with other persons on board his vessel his authority is as
broad as the exigencies of his situation require and he may, in proper
cases, and after exhausting pacific measures put even passengers under
arrest. But he cannot delegate this authority to minor officials or
others on board but must personally exercise such responsible duties and
see to it that nothing unreasonable is done. It has been held that while
he may restrain, or even confine, a passenger who refuses to submit to
the necessary discipline of the ship, he ought not to inflict any higher
punishment than a reprimand upon a passenger without first conferring
with his officers and entering the facts on the log. His authority to
punish members of the crew must be exercised with moderation and in
reason. He has no authority to punish by flogging or the use of any
illegal instrument and in testing the legality of punishment or
chastisement the methods and weapons employed are important.[9]
=4. Rights of Master.=--He is entitled, of course, to have his wages
paid according to his contract--though he has no lien for them on the
ship--and such a contract is valid and enforceable although made without
writing and for more than one year. He is also entitled to recompense
for all money advanced for the ship within the scope of his employment
and to indemnity against loss or damage which he may sustain therein
without his own fault. He is also entitled to care and cure for injuries
sustained in the service of the ship, irrespective of his own fault,
like other members of the ship's company. He is entitled to extra wages
for services outside of his line of duty.
He has a lien on the freight[10] for his wages, disbursements, expenses
and necessary liabilities. This may be asserted by withholding from the
moneys collected by him or by an attachment or garnishment. When the
ship is in charge of a licensed pilot[11] the master should remain in
command except so far as the pilot's duties are concerned and see that
there is a sufficient watch on deck and that the men are attentive to
their duties; he may advise with the pilot and even displace him in case
of intoxication or manifested incompetence. By virtue of his general
agency for the owners in relation to the ship, he may sue in his own
name, in their behalf, to recover for collision or for breach of
contract of affreightment or on any other account connected with the
business entrusted to him.
=5. Wages.=--His wages depend on the contract with the owner and, where
that is not express, will be allowed in accordance with the prevailing
usage of the place and trade. The fact that he is a part-owner does not
affect his rights in this respect. He may pay himself out of
freight-money which passes through his hands. In case of wrongful
discharge he may sue for his wages for the balance of the term in one
action for damages for breach of contract or bring successive suits for
each installment as it falls due. He is bound, however, to reduce his
damages as much as he can by other employment. It has been held that
where there is delay in paying him without due cause, he may claim extra
wages like other members of the crew.
=6. Lien.=--As has been remarked the general rule is that the master has
no lien on the ship for his wages. In the Orleans _v._ Phoebus, 11
Peters 175, wherein Phoebus sought to enforce a lien on the steamboat
_Orleans_ for his wages as master, the Supreme Court said:
By the maritime law the master has no lien on the ship even for
maritime wages.
This is supposed to be for the reason that he contracts on the personal
credit of the owner and also because it would tend to impair the owner's
personal confidence in his integrity. Another ground is that where the
master collects the freight he can pay himself directly and so needs no
lien. But a lien may be given by the terms of his contract or by a
statute of the state from which the vessel hails; if it is, it will be
enforced in the admiralty.
He has no lien on the cargo belonging to the owner of the ship, and,
according to the weight of authority, no lien upon cargo belonging to
any other shipper. He has, however, as has been said, a lien on the
freight earned by the vessel for his wages, disbursements and necessary
liabilities. This may be asserted by withholding from the moneys
collected by him or by an attachment or garnishment. In the Arcturus, 17
Fed. 95, the vessel had on board a quantity of telegraph poles owned by
a shipper and intended for delivery at Sandusky, upon which the shipper
was to pay freight in the usual way. Before the poles were unladen at
Sandusky, the vessel was seized by the marshal under a libel filed by
certain creditors, so that the master could not and did not unload the
poles, and the owner was compelled to pay $70 to have them unloaded. In
addition to this, before they were unladen the owner of the poles was
compelled to pay into the registry of the court the entire freight which
would have been earned had the vessel delivered the poles to him. The
master filed a libel, asserting that the whole freight money should be
applied to his unpaid wages, and claiming also a lien on the poles, the
cargo, for his wages. The court found that the master had no lien on the
cargo for his wages beyond the amount of the freight; that he was only
entitled to the freight actually earned by the vessel, that being the
freight less what it cost to unload at Sandusky, and that he was
entitled to a decree for that part of the freight so actually earned, to
be applied on his wages as master.
Where the master performs seamen's duties in addition to his own it has
been held he is not entitled to a lien for compensation for such work,
but in some more recent cases such liens have been allowed. There is a
substantial conflict of authority on this point.
=7. Relations to Cargo.=--He has no authority to alter a charter party,
nor to sign a bill of lading for goods not shipped or containing a
misdescription of the cargo. He must not mis-date a bill of lading nor
issue one contrary to the terms of the charter. He must see that the
cargo is well and sufficiently stored in accordance with law and that
the ship is not overladen. The law contemplates that the master himself
must be a competent stevedore. Thus in the leading case of the Niagara,
21 How. 7, it is said:
He (the master) must take care to stow and arrange the cargo, so that
the different goods may not be injured by each other, or by the motion
of the vessel, or its leakage; unless, by agreement, this duty is to be
performed by persons employed by the shipper. In the absence of any
special agreement, his duty extends to all that relates to the lading,
as well as the transportation and delivery of the goods; and for the
faithful performance of those duties the ship is liable, as well as the
master and owners.
Even where the shipper employs the stevedores, it remains the right and
duty of the master to control them if they are endangering the ship's
safety. Thus in the Elton, 83 Fed. 519, where the charter party provided
that the stevedore was to be employed and paid by the contractor and was
to load the steamer under the master's direction, it was said:
At no time does the master lose his proper place in the control of his
ship and everything connected therewith. The stevedore is not an
independent contractor, doing the work, which, when completed, is to be
turned over to the master for his approval or disapproval; but he must
load the steamer at all times under the direction and subject to the
control of the master.
During the voyage and until the goods are delivered he stands as bailee
and has a high degree of responsibility for their safekeeping. He must
pursue the voyage without deviation or delay except for the purpose of
saving life. He must be watchful to protect the cargo, in whole and in
parts, as against deterioration and damage. Safe custody is as much a
part of his duty as safe carriage and delivery. In case of emergency and
necessity he becomes as much an agent of the cargo as of the owner of
the ship and may sacrifice a part for the safety of the whole venture,
or mortgage or sell the same, or tranship it. In the event of peril the
duty and power devolve upon the master to determine whether a jettison
be necessary. As the court said in Lawrence _v._ Minturn, 17 How.
(U. S.) 100:
If he was a competent master, if an emergency actually existed calling
for a decision, whether to make a jettison of a part of the cargo; if
he appears to have arrived at his decision with due deliberation, by a
fair exercise of his skill, and discretion, with no unreasonable
timidity, and with an honest intent to do his duty, the jettison is
lawful. It will be deemed to have been necessary for the common safety,
because the person to whom the law has entrusted authority to decide
upon and make it has duly exercised that authority.
But though the master may jettison cargo to lighten a ship in peril, he
may not, for that purpose, give cargo away. It is not his to give, and
if he attempts to do so, the donee takes no title and is liable for the
conversion of it as for embezzlement (The Albany, 44 Fed. 431).
The duties and powers of masters of vessels in regard to cargo, as they
develop out of the exigencies of navigation and the varied situation
abroad, are much broader than those of the agents of carriers by land,
because the circumstances are so very different. Such a master has
authority to do whatever is really necessary to preserve the interests
of an absent owner or consignees. He is bound to the exercise of
diligence and good faith to give the owner or consignee timely
information; and to follow instructions if they can be obtained. If his
possession of the goods is interfered with by legal process or seizure,
he must give notice, if possible, and in the meantime take all proper
steps to protect or recover the goods. He may be bound to take legal
proceedings or answer for the damages caused by his failure to do so.
=8. Power to Sell or Mortgage Cargo.=--This power to dispose of the
cargo arises out of the necessity of the case. The duty is to complete
the voyage, if possible. Money for repairs and expenses can frequently
only be secured by disposing of some of the property in the master's
charge. If so, he has the requisite power; of course, he should first
realize what he can on the credit of the ship and freight-money but
after this he may resort to the cargo and pledge or even sell it
accordingly. In the leading case of Post _v._ Jones, 19 How. (U. S.)
150, Mr. Justice Grier said:
It cannot be doubted that a master has power to sell both vessel and
cargo in certain cases of absolute necessity.... Without pretending to
enumerate or classify the multitude of cases on this subject, or to
state all the possible conditions under which this necessity may exist,
we may say that it is applied to cases where the vessel is disabled,
stranded, or sunk; where the master has no means and can raise no funds
to repair her so as to prosecute his voyage; yet where the _spes
recuperandi_ may have a value in the market, or the boats, the anchor,
or the rigging, are or may be saved, and have a value in market; where
the cargo, though damaged, has a value, because it has a market, and it
may be for the interest of all concerned that it be sold.
Such dealing with the cargo must be prudent and in the interest of the
cargo-owner; the master must not sacrifice the cargo to the ship more
than the ship to the cargo. If he can prudently delay for communication
with the owner he must do so; the exercise of this power depends upon
the necessity and the utmost good faith.
The case of Australasian Steam Navigation Co. _v._ Morse, L. R. 4 P. S.
222; 1 Aspin. 407; 27 L. T. Rep. N. S. 357; 8 Moore P. C. N. S. 482; 20
Weekly Rep. 728; 17 Eng. Reprint 393, was decided by the Privy Council
in 1872, on appeal from the Supreme Court for New South Wales. It
appeared that a quantity of wool had been shipped in December, 1865, on
board the _Boomerang_ by owners living inland, for transportation from
Rockhampton to consignees in Sydney. The vessel stranded and filled and
the cargo was so damaged by water that it became dirty, heated and
liable to ignition. It was transferred to a relief vessel which had been
sent out from Rockhampton and was returned to that place, where there
were no facilities for storing or drying it, and it was in danger of
total loss. There does not appear to have been any means of
communicating promptly with the shippers, but there was testimony on the
question whether it might have been possible to reach the consignees in
Sydney, a distance of 900 miles, by telegraph, considering the imperfect
state of the telegraph in New South Wales in 1865, the method of
management of the particular telegraph line, and the fact that
communication, to accomplish anything, must have been attempted on
Sunday or on the next day which was Christmas. Under these
circumstances, the master, after having the wool surveyed by the local
Lloyds agent and a merchant, sold it without attempting to communicate.
For the Privy Council, Sir Montague Smith announced the law as follows:
The general principles of law are not in dispute, viz., that the
authority of the master of a ship to sell goods of an absent owner is
derived from the necessity of the situation in which he finds himself
placed; and consequently that, to justify his thus dealing with the
goods he must establish (1) the necessity for the sale; and (2) his
inability to communicate with the owner and obtain his instructions.
Under these conditions and by force of them the master becomes the
agent of the owner, not only with power but under the obligation
(within certain limits) of acting for him; but he is not in any case
entitled to substitute his own judgment for the will of the owner in
the strong act of selling the goods where it is possible, as hereafter
explained, to communicate with the owner and ascertain his will.
The Council defined the necessity of sale as meaning "that the course
taken must be clearly highly expedient," "the best and most prudent
thing to be done for the interest of the owner of the goods," and said:
A sale of cargo by the master may obviously be necessary in the above
sense of the word, although another course might have been taken in
dealing with it; for instance, if, in this case, the wool, which had no
value but as an article of commerce, could have been dried and repacked
and then stored or sent on, but at a cost to the owner clearly
exceeding any possible value to him when so treated, it would plainly
have been the duty of the master to sell, as a better course for the
interest of the owner of the property than to save it by incurring in
his behalf a wasteful expenditure. In other words, a commercial
necessity for the sale would then arise, justifying the master in
resorting to it.
On the subject of the necessity for communicating with the owners
of the cargo, the Council say:
The possibility of communicating with the owners must, of course,
depend on the circumstances of each case, involving the consideration
of the facts which create the urgency for an early sale; the distance
of the port from the owners; the means of communication which may
exist; and the general position of the master in the particular
emergency. Such communication need only be made when an answer can be
obtained, or there is a reasonable expectation that it can be obtained
before the sale. When, however, there is ground for such an expectation
every endeavor, so far as the position in which he is placed will
allow, should be made by the master to obtain the owner's instructions.
* * * * *
There can be no doubt that the master is bound to employ the telegraph
as a means of communication where it can usefully be done, but in this
case the state of the particular telegraph, the way it was managed, and
how far explanatory messages could be transmitted by it, having regard
to the time and circumstances in which the master was placed, were
proper subjects to be considered by the jury, together with the other
facts, in determining the practicability of communication.
The necessities which may arise in the course of the voyage are
innumerable and can hardly be classified, but the settled and reasonable
rule is that the power corresponds to the necessity at hand. By the
contract of carriage, the shipper and consignee impliedly authorize the
master, when he cannot obtain instructions, to do everything within the
general scope of his employment which a rational man of business might
believe that a rational owner would certainly do for himself if he were
present under the circumstances at hand. And even if the acts of the
master were beyond the ordinary scope of his authority, they may be
ratified by his principals and every ratification is the equivalent of
an original specific authority. So, while it is a general rule that an
agent may not delegate his authority the master may, in proper cases,
appoint another in his place and stead; and such appointee will have the
like powers as the original master. Circumstances may even arise where
the master may sell the cargo though the owner may be in port and does
not approve his action. Thus in the case of the Brewster, 95 Fed. 1000,
the ship had a cargo of coal. After commencing her voyage she was forced
to put back in port. Part of the coal had become wet and liable to
spontaneous combustion; it being dangerous to proceed with it, the
master tendered it to the shippers, who refused to receive it. He
thereupon sold it. The Court upheld his action as being for the general
good of the ship and cargo. This, however, was in the exercise of the
master's duty to protect the safety of the whole ship and must not
be understood as modifying the rule that the master, when no
considerations, except those relating to cargo, are in question, may not
substitute his judgment for that of the owner of cargo, where the
owner's will is ascertainable. It should be noted that all the master's
powers in regard to the cargo depend on the necessity for their exercise
and that, as long as that does not arise, he is really a complete
stranger to the cargo between lading and discharge. While the voyage
prospers he is only to carry it and must not intermeddle in any way.
=9. Power to Sell Vessel.=--Under like circumstances of necessity, the
master may sell the ship herself, on a home shore as well as abroad,
although never in the home port. Good faith and overwhelming necessity
must concur. For his own protection, he should have a thorough
examination made by competent surveyors and their sworn report stating
her condition and advising a sale. In some places, this may be
accomplished through a court of admiralty and this is the safest way.
This subject has been discussed more fully under the caption "Title and
Transfer," § 16, "Sales by Master." The case of the _Amelie_, 6 Wall.
18, there quoted, is the leading case. It should be observed that, if
the exigency is not too urgent to admit of the necessary delay, the
master is bound to communicate with the owner before selling the ship,
and the purchaser is bound to know the circumstances so far as he can
ascertain them by reasonable inquiry. He will not acquire a good title
if the emergency did not justify the sale, provided he could have so
ascertained by investigation.
=10. Power to Create Liens.=--This power is very broad. The master has
an implied power to pledge the ship for all her necessities and thus to
create all classes of contract liens upon her in the absence of the
owner. The order of their priority is governed by the rules applicable
to all maritime liens (see Chapter IX). He may create liens of
materialmen for supplies, work, labor and repairs; of sailors for their
wages; for all necessary services rendered the ship; advances of money;
dockage; towage; and the like. So he may, involuntarily create liens
upon her for torts, as by negligent carriage of cargo, collisions, or
personal injury. The leading exposition of law on this subject is that
of Justice Story in the early case of the _Aurora_, 1 Wheat. 96, decided
in 1816, wherein it was said:
The law in respect to maritime hypothecations is, in general, well
settled. The master of the ship is the confidential servant or agent of
the owners, and they are bound to the performance of all lawful
contracts made by him, relative to the usual employment of the ship,
and the repairs and other necessaries furnished for her use. This rule
is established as well upon the implied assent of the owners as with a
view to the convenience of the commercial world. As, therefore, the
master may contract for repairs and supplies, and thereby, indirectly,
bind the owners to the value of the ship and freight, so, it is held
that he may, for the like purposes, expressly pledge and hypothecate
the ship and freight, and thereby create a direct lien on the same, for
the security of the creditor. But the authority of the master is
limited to objects connected with the voyage, and, if he transcends the
prescribed limits, his acts become, in legal contemplation, mere
nullities. Hence, to make a bottomry bond executed by the master a
valid hypothecation of the ship, it must be shown by the creditor that
the master acted within the scope of his authority; or, in other words,
it must be shown that the advances were made for repairs and supplies
necessary for effectuating the objects of the voyage, or the safety and
security of the ship; and no presumption should arise that such repairs
and supplies could be procured upon any reasonable terms, with the
credit of the owner independent of such hypothecation. If, therefore,
the master have sufficient funds of the owner within his control, or
can procure them upon the general credit of the owner, he is not at
liberty to subject the ship to the expensive and disadvantageous lien
of an hypothecatory instrument.
=11. Duties on Disaster.=--If the ship becomes stranded, disabled or
wrecked, the master is bound to use all reasonable efforts to save all
that may be rescued out of the disaster. The maritime law contemplates
that he must be the last man to leave the ship in every sense of the
expression. He must be diligent to obtain the aid of salvors and to
protect the property in his charge. As far as may be, the cargo must be
saved, stored and transhipped to its destination. The crew must have
provision made for return and the wreck itself preserved as far as it is
of value. He cannot give away any of the property or needlessly
sacrifice any of it. He should promptly communicate with his owners and
underwriters, both ship and cargo, and, until lawfully superseded, has
all the authority which the necessities of the situation demand.
While the master is bound to follow instructions as to the course of his
voyage, and may not deviate unless forced to do so by stress of weather
or for the safety of vessel, crew or cargo, he may always deviate from
his course for the purpose of saving life. He is not bound to lie by or
delay his voyage for the purpose of preserving the property of third
persons, though he may deviate, in the exercises of a sound discretion,
to save property in peril.
=12. Log Book and Protests.=--The log book is the ship's journal in
which is entered her position from day to day, winds, currents, sea,
course, speed, and all other matters of importance in relation to the
vessel. The entries in it should be regularly and correctly made, as in
the regular course of business, and when so kept, it will become a
record of great importance in all matters relating to the ship's
business and litigation. While the entries may be customarily made by
the mate or other subordinate officer, the master should see that they
are properly kept up and satisfy himself of their correctness as he is
primarily responsible for all the transactions of the voyage. The
statutes (U. S. Comp. St. 1916, § 8036) require every vessel making
foreign voyages, or between Atlantic and Pacific ports, to have an
official log book and charge the master with twelve classes of entries
therein, under penalties.
All cases of offenses or of misconduct by members of the crew are
required to be recorded; also all cases of illness, death, birth and
marriage on board; the name of any seaman who ceases to be a member of
the crew; the wages of any seaman who dies during the voyage; the sale
of the effects of any such seaman, and a description of any collision
that may occur.
In introducing a ship's log in evidence, it must be proved in the same
manner as any other document; that is to say, it enjoys no special
evidentiary status.
In case of damage or disaster during the voyage, or suspicion thereof,
the master should within twenty-four hours of his arrival in port cause
a notary public or consul to "note a protest" in regard to the fact;
this "noted protest" should be extended before a notary as soon
thereafter as possible, and at any rate, on arrival at destination and
while recollection is fresh. The extended protest will be upon the usual
form and contain a plain account of the misfortune and damage. As it
will form the basis of any claim of underwriters or adjustment of
damages, great care should be taken to express the facts clearly and
according to their legal results. The master is charged with this duty
and should execute the protest, together with his officers and such of
the crew as have knowledge of the facts involved.
REFERENCES FOR GENERAL READING
_Commentaries_, Kent, III, Lecture XLVI.
_Shipping and Admiralty_, Parsons, Vol. II, Chapter XIV.
_Sea Laws_, Jacobsen, Book II, Chapter I.
Niagara, 21 How. 7.
Nebraska, 75 Fed. 598.
Rupert, 213 Fed. 263.
Lombard S. S. Co. _v._ Anderson, 134 Fed. 568.
Spedden, 184 Fed. 283.
Yarkand, 120 Fed. 887.
Ponce, 178 Fed. 76.
Jenkins, S. S. Co. _v._ Preston, 186 Fed. 108.
Ancaios, 170 Fed. 106.
Aguan, 48 Fed. 320.
Trigg, 37 Fed. 708.
[5] There are a few instances in which a master need not be licensed.
All masters of steamers must be licensed, all masters of sailing vessels
of over 700 tons and all vessels of over 100 tons carrying passengers
for hire (§ 4438). Other masters need not be licensed.
[6] A question sometimes arises whether a particular individual occupies
the position of master or not. The fact that the man is enrolled as
master is not necessarily conclusive of this question. Where a man was
clothed with and did actually exercise the duties of master during the
illness of the registered master he was held to have been _de facto_
master and hence not entitled to a maritime lien for his wages (Hattie
Thomas, 29 Fed. 297). On the other hand, the engineer of a dredge who
was highest officer on the vessel and directed the firemen and other
hands but who had no authority to engage or dismiss men or purchase
supplies, was held not to be the master and his lien for wages was
sustained (Atlantic, 53 Fed. 607). In the Calypso, 230 Fed. 962, it was
said: "the master of a ship is _pro hac vice_ the agent of the owner and
... his appointment or authorization lies in contract, ... if the master
has not been appointed by the owner enrollment cannot make him such."
[7] The rules referred to are "Rules of Practice for the Courts of the
United States in Admiralty and Maritime Jurisdiction on the instance
side of the court."
[8] In a number of leading cases attempts were made to hold the owner
liable for shortage in cargo where the master had signed bills of lading
for goods not actually on board. Among these are the Freeman, 18 How.
182; Grant _v._ Norway, 10 C. B. 665; McLean _v._ Fleming, L. R. 2 H. L.
Sc. 128 (English cases), and American Sugar Refining Co. _v._ Maddock,
93 Fed. 980. The principle laid down in these cases is "not merely that
the captain has no authority to sign a bill of lading in respect to
goods not on board but the nature and limit of his authority are well
known among mercantile persons."
[9] Ragland _v._ Norfolk & Washington Steamboat Co., 163 Fed. 376. This
was a libel _in personam_ in which the libellant claimed damages on
account of an alleged improper arrest while a passenger on board
respondent's vessel. The court said:
"Officers of steamboats and passenger vessels should be exceedingly
careful before putting a passenger under arrest. They are the servants
of the passengers on their boats, paid for the purpose of treating them
kindly. The trouble on this occasion arose from a misapprehension on the
part of the captain of the steamer of his power and duty as master of
the ship. The master of a passenger steamer is an exceedingly important
officer. He should be of exceptional firmness, intelligence and
character, and more than ordinarily endowed with common sense and tact
and always gentle and courteous. He has vast power in dealing with
passengers in situations that are liable to and do arise on his vessel,
and he may in a proper case after exhausting pacific measures, place a
passenger under arrest, but, to suppose, as he testified he did, that he
could delegate this authority to minor officials or others on board,
cannot be sanctioned. When the time comes to arrest passengers, an
occurrence on a steamboat only second in importance to navigating the
vessel in safety, it is his duty to properly care for and protect them
as far as is reasonably possible, and personally to exercise the
responsible duties at hand, and at least give personal direction to what
is being done."
The Lizzie Burrill, 115 Fed. 1015, with reference to the duty of the
master toward the crew. The court quotes a number of American and
English authorities. The syllabus summarizes the decision as follows:
"It is the duty of the master of a ship while at sea to protect his crew
from violence and brutal treatment by other officers under his command.
"The master of a ship while on board is the agent of the owners in
respect to all matters which come within the scope of his duty, and the
owners and ship are liable in damages to a seaman, not only for the
unwarranted ill-treatment of such seaman by the master himself, but for
his failure to perform his duty to protect the seaman from assaults and
ill-treatment by other officers."
[10] The frequently misused term "freight" means the compensation for
carrying the cargo and not the goods thereunder.
[11] See Chapter XII, "Pilotage," _infra_.