it cannot be committed by a master who is a part owner of the ship,
either generally or for the voyage. Thus in the old case of Marcadier
_v._ Ins. Co., 8 Cranch 39, the master abandoned the voyage at an
intermediate port for his own emolument and advantage, and, as a result,
a quantity of cargo was spoiled. It was contended that he had been
guilty of barratry. The Court found, however, that he was the owner of
the ship and therefore incapable of committing the offense. In Ins. Co.
_v._ Coulter, 3 Peters 222, it was held that gross negligence might be
evidence of barratry:
And when it is considered how difficult it is to decide where gross
negligence ends and ordinary negligence begins, and to distinguish
between pure accident and accident from negligence, we cannot but think
that the British courts have adopted the safe and legal rule in
deciding, that where the policy covers the risk of barratry, and fire
be the proximate cause, they will not sustain the defense that
negligence was the remote cause.
This case contains a quaint quotation from the doctrine of Malynes
"whose book unites the recommendations of antiquity, good sense and
practical knowledge." The passage follows:
Barratrie of the master and mariners can hardly be avoided, but by a
provident care to know them, or at least the master of the ship upon
which the assurance is made. And if he be a careful man, the danger of
fire above mentioned will be the less for the ship; boys must be looked
unto every night and day. And in this case let us also consider the
assurers; for it has oftentimes happened, that by a candle unadvisedly
used by the boys, or otherwise, before the ships were unladen, they
have been set on fire and burnt to the very keel, with all the goods in
them, and the assurers have paid the sums of money by them assured.
Nevertheless, herein the assurers might have been wronged, although
they bear the adventure until the goods be landed; for it cometh to
pass sometimes, that whole ships' ladings are sold on shipboard, and
never discharged.
=11. Failure to Equip with Radio Telegraph.=--By Act of Congress
approved June 24, 1910, 36 St. at L. 629, it is provided that it shall
be unlawful for any oceangoing steamer, whether American or foreign,
carrying passengers and carrying fifty or more persons, including
passengers and crew, to leave any port of the United States unless
equipped with efficient apparatus for radio communication in good
working order, capable of communicating over a distance of at least one
hundred miles, night or day, and in charge of a competent operator. To
be efficient the apparatus must be capable of exchanging messages with
stations using other systems of radio communication. A fine of not more
than $5,000 is assessed against the master or other person in charge for
violation of the act and as has been said (§ 5 _supra_) the fine is a
lien upon the ship. Regulations for the enforcement of the act are made
by the Secretary of Commerce. The act does not apply to steamers plying
between ports less than 200 miles apart.
=12. Failure to Disclose Liens.=--By the Ship Mortgage Act, 1920 (see
Appendix, Merchant Marine Act, Sec. 30), a mortgagor of a preferred
mortgage is required, upon request of the mortgagee, to disclose the
existence of any maritime lien, prior mortgage or other liability upon
the vessel, known to the mortgagor, and to refrain, until the mortgagee
has had an opportunity to record the mortgage, from incurring liens upon
the vessel except for wages, general average and salvage. Disobedience
to this injunction with intent to defraud is made a misdemeanor
punishable by a fine of not more than $1,000 and imprisonment of not
more than two years, or both, and the mortgage debt is to become due
immediately.
=13. Mutiny.=--This term is most often used with reference to an offense
committed on shipboard, although technically it is not peculiar to
shipping, but may be committed by soldiers and servants. Mutiny on
shipboard is defined as follows: "A revolt or mutiny consists in
attempts to usurp the command from the master or to deprive him of it
for any purpose by violence or in resisting him in the free and lawful
exercise of his authority; the overthrowing of the legal authority of
the master, with an intent to remove him against his will and the like."
Mere refusal of duty or disobedience by a seaman while liable to
punishment by the master is not mutiny, and the conduct may be very
aggravating and contumacious without amounting to mutiny. The Stach
Clark, 54 Fed. 533.
CHAPTER XV
WRECKS AND DERELICTS
=1. Definitions.=--In a legal sense, the word wreck includes ships and
cargoes, or any parts thereof, which have been cast on shore by the sea,
and derelict applies to similar property abandoned on the sea. The terms
should be understood as limited to things of a maritime nature and as
including the old subdivisions of flotsam, jetsam and ligan,--flotsam
being the name for the goods which float when the ship is sunk, jetsam
meaning those which are jettisoned or thrown overboard, and ligan those
cast into the sea but tied to a buoy or marker so that they might be
found again. Derelict is the term applied to a thing which is abandoned
at sea by those who were in charge of it, without any hope of recovery
or intention of return.
=2. Wrecks under the Common Law.=--It is said in Murphy _v._ Dunham, 38
Fed. 503, that the disposition of wrecks and derelicts is usually a fair
index of the degree of civilization of the people within whose domains
such property is found. In primitive societies, wrecks are treated as
the plunder of the finder, or lord of the soil, since title depends on
possession and the owner's rights disappear when his goods are separated
from him. The common law of England long exhibited this imperfect notion
of property. Blackstone, writing about 1760, points out that by the
ancient common law, wrecked goods belonged to the King since by the loss
of the ship all property left the original owner. This harsh rule was
modified by statutes which declared, in substance, that if a man, dog,
or a cat escaped alive out of the disaster, it was no wreck but might be
reclaimed by the owner within a year and a day. In this country,
colonial laws and current statutes have alike repudiated these primitive
notions, and reënacting appropriate provisions of Roman and medieval
sea-law, provide for safely keeping the property for the space of a
year, or other reasonable time, for the owner, and delivering it to him
on the payment of reasonable salvage; only in the event of the total
failure of the owner to appear, do the goods or their proceeds pass to
the state. The Act of Congress (10 U. S. Comp. St. 1916, § 10470)
provides that whoever plunders, steals, or destroys any money, goods,
merchandise, or other effects, from or belonging to any vessel in
distress, or wrecked, lost, stranded, or cast away, upon the sea, or
upon any reef, shoal, bank, or rocks of the sea, or in any other place
within the admiralty and maritime jurisdiction of the United States,
shall be fined not more than five thousand dollars and imprisoned not
more than ten years; and whoever willfully obstructs the escape of any
person endeavoring to save his life from such vessel, or the wreck
thereof; or whoever holds out or shows any false light, or extinguishes
any true light, with intent to bring any vessel sailing upon the sea
into danger, or distress, or shipwreck, shall be imprisoned not less
than ten years and may be imprisoned for life.
It is interesting to note, in connection with this statute, two Articles
of the _Rooles of Oléron_,--
ARTICLE XXV
If a ship or other vessel arriving at any place, and making in towards
a port or harbour, set out her flag, or give any other sign to have a
pilot come aboard, or a boat to tow her into the harbour, the wind or
tide being contrary, and a contract be made for piloting the said
vessel into the said harbour accordingly; but by reason of an
unreasonable and accursed custom, in some places, that the third or
fourth part of the ships that are lost, shall accrue to the lord of the
place where such sad casualties happen, as also the like proportion to
the salvors, and only the remainder to the master, merchant and
mariners: the persons contracting for the pilotage of the said vessel,
to ingratiate themselves with their lords, and to gain to themselves a
part of the ship and lading, do like faithless and treacherous
villains, sometimes even willingly, and out of design to ruin ship and
goods, guide and bring her upon the rocks, and then feigning to aid,
help and assist, the now distressed mariners, are the first in
dismembering and pulling the ship to pieces; purloining and carrying
away the lading thereof contrary to all reason and good conscience: and
afterwards that they may be the more welcome to their lord, do with all
speed post to his house with the sad narrative of this unhappy
disaster; whereupon the said lord, with his retinue appearing at the
places, takes his share; the salvors theirs; and what remains the
merchant and mariners may have. But seeing this is contrary to the law
of God, our edict and determination is, that notwithstanding any law or
custom to the contrary, it is said and ordained, the said lord of that
place, salvors, and all others that take away any of the said goods,
shall be accursed and excommunicated, and punished as robbers and
thieves, as formerly hath been declared. But all false and treacherous
pilots shall be condemned to suffer a most rigorous and unmerciful
death; and high gibbets shall be erected for them in the same place, or
as nigh as conveniently may be, where they so guided and brought any
ship or vessel to ruin as aforesaid, and thereon these accursed pilots
are with ignominy and much shame to end their days; which said gibbets
are to abide and remain to succeeding ages on that place, as a visible
caution to other ships that shall afterwards sail thereby.
ARTICLE XXVI
If the lord of any place be so barbarous, as not only to permit such
inhuman people, but also to maintain and assist them in such villanies,
that he may have a share in such wrecks, the said lord shall be
apprehended, and all his goods confiscated and sold, in order to make
restitution to such as of right it appertaineth; and himself to be
fastened to a post or stake in the midst of his own mansion house,
which being fired at the four corners, all shall be burnt together, the
walls thereof shall be demolished, the stones pulled down, and the
place converted into a market place for the sale only of hogs and swine
to all posterity.
The Act of Congress and the ancient articles are both occasioned by the
persistent notion of loss of title by shipwreck and the right of people
on shore to appropriate what they can of the property at risk.
=3. Wrecks within Admiralty Jurisdiction.=--It is sometimes said that
the admiralty has no jurisdiction over wrecks, but the statement is
correct in only a limited sense. In cases where the property had become
quite removed from all connection with commerce or navigation, as where
a ship had been thrown far inland by a tidal wave and been converted
into a dwelling, or cargo was incorporated into the common mass of
property on shore, the admiralty would probably decline jurisdiction. On
the other hand, the admiralty law of salvage is based, in large part, on
the law of wrecks and derelicts; contracts for the lightering of
stranded cargoes or the release of wrecked vessels are obviously
maritime and the conversion of shipwrecked property may be a maritime
tort when consummated on navigable waters. A steamer which had been
wrecked and abandoned to the underwriters as a total loss, and incapable
of self-propulsion or of carrying a cargo, still remained within the
admiralty law of limited liability (Craig _v._ Insurance Company, 141
U. S. 638). The fact is that the two jurisdictions are largely
concurrent on most matters in regard to wrecks and the instances, in
which an adequate remedy can not be found in either, are rare.
=4. Liabilities of Owner of Wreck.=--It is a general doctrine of the law
that the owner of a vessel wrecked without his personal fault may
relieve himself from all further personal liability on its account by
abandoning it. If sunk through his fault, or if he still retains his
title, he may be liable for damage which it occasions, or for
maintaining a nuisance, or for obstructing navigable waters. If wrecked
by unavoidable accident or without the owner's negligence, he may
abandon all his rights and interest in what remains and be freed from
all further responsibility; he will be under no obligation to remove it
nor subject to indictment on its account, nor liable in damages for
injuries caused by it. This abandonment is not required to be in any
formal way but is shown by evidence of acts and intention. A notice to
any public authorities who may be concerned, like local United States
engineers, or harbor masters, or commissioners of wrecks, is often
sufficient. Where, however, the owner does not abandon, he remains
liable in many respects. The wreck may be a nuisance which the courts
will compel him to abate at the suit of property owners injuriously
affected. It may be an obstruction to navigable waters and the
government may remove it at his expense or proceed against him
criminally for such obstruction. Passing vessels may injure themselves
against it or the riparian owner assert damages for the trespass.
=5. Rights of Landowner.=--The owner of the shore on which a wreck is
cast is not under any legal obligation to save it for the owner but he
may take possession and protect it on the owner's account. If he does
so, he will have a lien on the property for his expense and labor, at
least, and may stand in the position of a salvor. If he does nothing
himself, he may not resist the reasonable efforts of others to save the
property for it is a very old rule of the common law, that an entry upon
land to save goods which are in jeopardy of being lost or destroyed by
water, fire or any like danger, is not a trespass, and this rule is
applied to the rescue of ships cast ashore by the sea. At the same time,
the owner of the shore will have a sufficient title to goods cast
thereon to maintain an action for their value against third parties and
salvors should be prompt in seeking the protection of the admiralty if
their efforts are successful.
=6. Owner's Rights.=--The owner's title to his wrecked ship or cargo
remains in him until divested by his own act or by operation of law and
he has the right to enter upon lands of another, upon which it may be
cast, for the purpose of removing it; if prevented from so doing he may
have his action of trover for its conversion or a replevin for
possession.[31] In case his property was insured and abandoned to his
underwriters, they become the full owners thereof and entitled to all
his rights on the premises. These rules apply alike to ship and to cargo
and to all the parts thereof. In Murphy _v._ Dunham, 38 Fed. 503, may be
found an interesting discussion in regard to a wrecked cargo of coal.
Dunham owned the schooner _Burt_ which was lost in Lake Michigan with
about 1,375 tons of coal on board. Murphy bought this cargo from the
underwriters who had paid a total loss thereon. About two years
afterwards, Dunham located the wreck and raised a quantity of the coal
which he sold for the best price obtainable. These proceedings were
without any license or authority from Murphy, who had purchased the
cargo, and he then sued Dunham for tortious conversion. The court held
that Murphy had a valid title and that Dunham was a trespasser in
interfering with it; nevertheless if Dunham had promptly libeled it for
salvage, his conduct not being marred by bad faith, the admiralty would
have awarded him a substantial reward; but as he had assumed to dispose
of it at private sale, he must answer in damages, although not as a
willful trespasser or one acting in bad faith; he was accordingly held
to respond for the value of the coal in the port where he sold it, less
the actual and necessary expenses of its recovery. The Albany, 44 Fed.
431, is another opinion in regard to the rights of the owners of ship
and cargo; as a result of that disaster, the cargo was plundered by
wreckers and sold to many persons in the vicinity; the underwriters
recovered it by actions in replevin wherever it could be found.
=7. Rights of Government.=--The Act of March 3, 1899, (10 U. S. Comp.
St. § 9920, etc.) contains provisions for the removal of wrecks in
navigable waters by the Government. The obstruction may be broken up,
removed, sold or otherwise disposed of by the Secretary of War at his
discretion, without liability for any damage to the owners of the same.
This authority may be delegated by the Secretary of War and permits the
prompt removal of wrecks when they interfere with navigation. The rights
and power of the Government to so dispose of wreckage can hardly be
doubted and similar power probably exists in all foreign jurisdictions
as well as in the several states.
=8. Derelicts.=--Vessels abandoned and deserted at sea, with or without
their cargoes, are termed derelicts and may be salved or destroyed by
whomsoever can do so. They constitute very dangerous obstructions to
navigation, especially when afloat on the ocean or the Great Lakes. The
question whether or not a vessel is to be adjudged a derelict is decided
by ascertaining, not what was actually the state of things when she was
deserted by her master and crew, but what were their intentions and
expectations when they quitted her. If they left in order to obtain
assistance with the distinct purpose to return, there is no derelict.
_Prima facie_, however, a deserted vessel at sea is a derelict and
subject to salvage services, or, if not salvable, then to destruction by
private parties or naval authorities. Salvage of derelicts is always
liberally rewarded, sometimes to the amount of the whole recovery. If
destroyed, the proceeding must be in entire good faith and, if so, there
will be no liability to the owner. In the case of the River Mersey, 48
Fed. 686, that steamer had burned a scow found adrift at sea and was
libeled for its destruction. It appears that the scow had broken adrift
near one of the West Indies and become a dangerous factor in the
navigation up and down the coast. The steamer took her in tow in order
to drop her inside of the Gulf Stream but, finding this impossible on
account of the weather, set her on fire in order to destroy her and so
remove a dangerous obstruction to navigation. The owners of the scow
alleged that they had not abandoned her and meant to send out a tug to
bring her into port. The court dismissed the libel, saying that the
destruction of such obstacles to the fairways of the sea, either when
abandoned, or when proved not to be worth saving, is not tortious or
actionable, but rather a praiseworthy and beneficent service, and,
whether done by private or public ships, needs no statutory authority
but is entirely justified under the law of necessity, for the protection
of life and property, and for the manifest public good.
=9. Finders.=--The person who finds property lost at sea, or cast upon
the shore, is protected against the interference of third parties
although he has no title against the real owner unless that owner had
abandoned completely. Eads _v._ Brazelton, 22 Ark. 499, is an excellent
opinion on this phase of the subject. The steamboat _America_, laden
with a cargo of lead, had sunk in the Mississippi River in 1827. In 1854
Brazelton had discovered the wreck over which an island had formed and a
forest grown, and commenced preparations for its recovery. He marked its
position and placed buoys around it but was prevented from commencing
operations until the next year. In the meantime Eads commenced
operations on his own account and Brazelton sought an injunction to
restrain him. The original owners did not appear or make any claim.
Brazelton was held to have a good title as against any others than the
owner on the ground that he was the first finder of an abandoned wreck.
[31] These are common-law forms of action for the recovery of property or
damage for its detention.
CHAPTER XVI
WHARFAGE AND MOORAGE
=1. Definition.=--Wharves are structures made to facilitate and aid
commerce and navigation and are essential to maritime affairs. They are
classed as public and private and frequently regulated by local laws and
ordinances. Wharfage means the use by the vessel of a wharf, pier or
other landing place and also the compensation for such use; moorage is a
practically similar term but may include the use of unimproved property
by the ship while anchored or otherwise attached to the shore or lying
in a slip. Private wharves are those which the owner has constructed and
reserved for his own use but when they are legally thrown open to the
use of the public, they become affected with a public interest; the
keeping of such a wharf has been likened to inn-keeping or other
quasi-public places and all seeking its use are entitled to
accommodation at reasonable rates.
=2. Right to Erect.=--The construction of wharves or piers upon
navigable waters is usually governed by federal, state or municipal
regulations and, unless appropriate authority is obtained, the erection
of such a structure, projecting into the stream, will be unlawful and
the person responsible for the obstruction may be liable for any damage
resulting from its existence, and may be criminally liable to the
federal government and subject to injunctive process for the removal of
the structure. This remark does not apply to structures confined wholly
to the shores and not projecting. The paramount authority to legislate
with regard to wharves in navigable streams resides in Congress, which
has enacted that no such structures shall be erected outside of
established harbor lines, or where no harbor lines have been
established, except by specific authority of the Secretary of War. The
Secretary of War is empowered to establish harbor lines where he
considers it essential (30 St. at L. 425). It has been held, however,
that the power of Congress to regulate the use of navigable waters
entirely within the limits of a State is not complete without the
concurrence of the state legislature. In most communities located on
navigable waters, there exists a corporate power, conferred by the
legislature, to regulate wharves, piers and landings, and in pursuance
of such power wharves and harbor lines are frequently established, in
the absence of federal action establishing the same.
=3. Duties of Proprietor.=--The owner of a wharf is bound to keep it
safe and free from all defects which might injure persons or property
using the same. While not an insurer he must use due diligence to make
and keep it safe for the uses for which it was constructed or is
employed. The analogy is that of the keeper of any structure commonly
used by others for compensation and the obligation extends to all who
rightfully come upon the premises for business purposes. Thus friends
attending upon the arrival or embarkation of passengers, consignees of
cargo, hackmen, and customs officers have recovered damages against the
owner of a wharf for injuries sustained through its defective condition.
So he will also be liable for injuries to vessels caused by rocks or
other obstacles beneath the surface of the water or pikes projecting
from the wharf. There is an implied warranty that the premises are safe
and free from hidden obstructions. Frequent inspections are required in
order to ascertain and repair such defects as may be engendered by its
use, and if dangers are found to exist, he should close the wharf or
give ample notice of its condition.
These principles were invoked in the case of Onderdonk _v._ Smith, _et
al._, 27 Fed. 874; where a scow and her cargo were sunk in consequence
of being punctured by a spile which projected from the bottom of the
slip directly under the place where the scow had taken her cargo. The
respondent enjoyed the exclusive privilege from the owners of using the
pier and the adjoining slip for shipping their coal and to that extent,
although they were neither owners or lessees, had control and occupation
of the premises. "They assumed the duty toward those whom they invited
there for the transaction of business not to expose them to hazard from
any defects in the condition of the premises known to themselves or
which, by the use of reasonable diligence, should have been known."
Their superintendent knew of the existence of the spile and they were,
therefore, chargeable with notice, because about three weeks before the
accident in suit another boat had been struck by the same spile. The
Court said:
If the scow had been injured by this obstruction while being loaded at
the pier, or while going to it or away from it in the prosecution of
the business which called her there, the case of the libellant would be
clear. But the evidence is that her loading was completed at half past
4 o'clock in the afternoon, when the water was a little below high
tide, and the accident happened about half past 9 in the evening, when
the tide was low ebb; and if the scow had been removed from the place
where she was loaded within a reasonable time after the loading was
completed, she would not have been injured. When the tide went out, the
scow settled down upon the spile, which projected about a foot from the
bottom of the slip, and sufficiently far to puncture the boat at that
condition of the water.
* * * * *
The only liability of the defendants grows out of their duty arising
from their implied invitation to others to use the pier for the
transaction of the business to which the pier was appropriated. Their
invitation was spent when the boat's business at the pier was finished,
and a reasonable time had elapsed to enable her to move away. After
that she remained there at her own risk. It is not necessary to hold
that she was there against the permission of the defendants, and
therefore a willful trespasser; but, assuming that she was there
without having obtained the permission of the defendant's
superintendent, the defendants were not under any obligation to concern
themselves for her protection. Under such circumstances, the law
imposed no duty upon the defendants except the general duty which every
man owes to others to do them no intentional wrong or injury.
* * * * *
Owners of private property are not responsible for injuries caused by
leaving a dangerous place unguarded, when the person injured was not on
the premises by permission, or on business, or other lawful occasion,
and had no right to be there. One who thus uses another's premises
cannot complain if he encounters unexpected perils.
In Smith _v._ Burnett, 173 U. S. 430, a schooner while moored in berth
at a wharf on the Potomac River for loading, was sunk by a submerged
rock within the limits of the berth at the wharf, which the master was
invited to take, the obstruction being unknown to the master and having
been assured by the owners of the wharf, through their agent, that the
depth of water in the berth in front of the wharf was sufficient and
that the berth was safe for the loading of vessels. Chief Justice
Fuller, discussing the English and American authorities said:
Although a wharfinger does not guarantee the safety of vessels coming
to his wharves, he is bound to exercise reasonable diligence in
ascertaining the condition of the berths thereat, and if there is any
dangerous obstruction, to remove it, or to give due notice of its
existence to vessels about to use the berths. At the same time the
master is bound to use ordinary care, and cannot carelessly run into
danger.
=4. Rights of Proprietor.=--The owner of a private wharf is entitled to
compensation for its use by others or to reserve it entirely for his own
accommodation. Riparian owners may construct and maintain, for their own
exclusive use and benefit, private wharves on their own property, and,
so long as they do use them, and refrain from giving them a public
character, may deal with them as other private property. If a vessel is
wrongfully moored to such a private wharf, the owner may cast it adrift
and will not incur any liability if, in consequence of his act, the
vessel becomes stranded and lost. In the interesting case of Dutton _v._
Strong, 1 Black 23, a vessel in peril running into a harbor in the night
made fast to a pier, which was the private property of the riparian
proprietor, without securing his permission. The force of the sea
causing the vessel to pound and parts of the pier beginning to give way,
the proprietor of the pier warned the master to leave. The master,
believing that such a course would imperil his vessel, did not do so and
the pier owner cast her loose, as a result of which she was so seriously
injured that her master was obliged to scuttle her. The owner of the
vessel brought action for damages. The court (Clifford, J.) said:
Piers or landing places and even wharves, may be private, or they may
be in their nature public, although the property may be in an
individual owner; or, in other words, the owner may have the right to
the exclusive enjoyment of the structure, and to exclude all other
persons from its use; or he may be under obligation to concede to
others the privilege of landing their goods, or of mooring their
vessels there, upon the payment of a reasonable compensation as
wharfage; and whether they are the one or the other may depend, in case
of dispute, upon several considerations, involving the purpose for
which they were built, the uses to which they have been applied, the
place where located, and the nature and character of the structure.
Undoubtedly, a riparian proprietor may construct any one of these
improvements for his own exclusive use and benefit, and, if not located
in a harbor, or other usual resting place for vessels, and if confined
with the shore of the sea or the unnavigable waters of a lake, and it
had not been used by others, or held out as intended for such use, no
implication would arise, in a case like the present thus the owner had
consented to the mooring of the vessel to the bridge pier.
Accordingly it was held that:
When it became obvious that the necessary effect of the trespass, if
suffered to be continued, would be to endanger and injure or perhaps
destroy the pier, the peril of the vessel imposed no obligation upon
the defendants to allow her to remain and take the hazard that their
own property would be sacrificed in the effort to save the property of
the wrongdoers. On the contrary, they had a clear right to interpose
and disengage the vessel from the pier to which she had been wrongfully
attached, as the only means in their power to relieve their property
from the impending danger. They had never consented to incur that
danger, and were not in fault on account of the insufficiency of the
pier to hold the vessel, because it had not been erected or designed as
a mooring place for vessels in rough weather, and it was the fault of
the plaintiffs or their agent that the vessel was placed in that
situation.
The proprietor of a private wharf may fix any rate he pleases for the
use of such a wharf and those employing it, after due notice of the
charge, will make themselves liable to pay it. This rule of private
property, however, applies only to the purely private wharf and slight
circumstances may be sufficient to give it a public character. It has,
indeed, been held that where the wharf constitutes the only means by
which the people of a community can reach the water and have the benefit
of the means of commerce and navigation thereon, the structure is
necessarily impressed with a public interest and may not be monopolized
to the exclusion of others.
=5. Wharfage Compensation.=--The compensation for the use of a private
wharf depends on the bargain of the parties concerned. When there is an
express contract, that will control; if the rate is published, the
vessel impliedly promises to pay it when she uses the wharf; such
publication may be by a sign or placard on the wharf or by any other
method of conveying actual notice of the rate. Where there is no express
agreement, or published rate, there is an implied promise to pay a
reasonable compensation or customary charge for the use of the property.
The same rule applies to cases of overlapping, where a vessel moored at
one wharf projects over another to a greater or less extent. In the case
of the Hercules, 28 Fed. 475, a tug 80 feet long habitually used a wharf
of only 59 feet and so overlapped the adjoining wharf although she did
not actually use it for loading or unloading. The proprietor gave a
general notice that he would claim compensation and later filed his
libel therefor. The court sustained his position, but, as no rate had
been named, referred the matter to a commissioner to report on what a
reasonable amount would be. In other than matters of private wharfage,
the compensation is frequently regulated by local law.
=6. Lien.=--There is a maritime lien upon a vessel for wharfage in all
cases where the ship is foreign, and, by the weight of authority, this
lien also arises in the case of domestic vessels. In all cases of
domestic vessels, however, the States may provide liens for wharfage, by
local statutes, and these will be enforced in the admiralty if the
conditions of such statutes have been observed. It has, however, been
rather generally held that this lien only attaches when the ship is
actively engaged in commerce and navigation and can not be created when
she is out of commission and laid up for storage purposes. So, in
localities where navigation is closed during the winter months, it is
said that there is no lien for winter wharfage and intimated that the
proprietor should secure himself under his common-law lien by declining
to surrender possession of the vessel until his charges are paid. The
lien has also been given a high rank, under some decisions, and placed
next after sailors' wages, although the propriety of this may seem open
to question. It is inferior to a "preferred mortgage" given on an
American ship pursuant to the Merchant Marine Act of 1920 (see
Appendix). It is essential, of course, since the lien depends on
contract, express or implied, that it should be treated by some one
having due authority to pledge the credit of the ship.
=7. Injuries to Wharves.=--Cases of collision between ships and wharves
are very frequent and the damages caused thereby are a well recognized
subject of marine insurance for which the underwriters agree to
indemnify the vessel when it has been compelled to pay them. Damage to
the wharf can not be recovered in the admiralty because the tort is not
maritime; it is not consummated upon the water but on the land of which
the wharf is a part. The wharf owner must, therefore, sue at common law
or under local statutes; he has no maritime lien for the injury. On the
other hand, the injuries received by the ship are consummated on the
water and fall within the jurisdiction of the admiralty; the ship,
however, can not libel the wharf because that is a fixed structure and
not subject to maritime liens; its remedy is by a libel _in personam_
against the wharf owner. If the wharf is a lawful structure and the ship
negligently runs into it, full damages may be recovered at law. Where
the structure is unlawful, the ship may recover its damages, in whole or
in part, as the fault may lie, in an admiralty proceeding. Atlee _v._
Union Packet Co., 21 Wall. 389, was a case where a barge was sunk by a
collision with a stone pier in the Mississippi river which had been
placed there without authority of law. The pilot of the barge was also
at fault in assuming to take her through the channel without posting
himself about the location of the pier. The proceeding was a suit in
admiralty by the owner of the barge against the owner of the pier, and,
both being considered in fault, the damages were divided. In connection
with the subject of admiralty jurisdiction it should be noted that while
it declines to take cognizance of the damages sustained by the owners of
fixed structures from collisions with vessels, the shipowners, by filing
a petition under the Limited Liability Act, may draw their claims into
the admiralty and enjoin their actions at common law (Richardson _v._
Harmon, 222, U. S. 96.).
Injuries are often sustained by docks and wharves when vessels make fast
thereto in stress of weather and can not leave without exposing
themselves to destruction. The rule is that the shipowner may not save
his own property at the expense of the wharf-owner but must compensate
him for the damage done by his ship, although the master had no
alternative but to remain as he did. Vincent _v._ Company, 109 Minn.
456, is a decision in point, and Dutton _v._ Strong, 1 Black 23, should
be read in the same connection.
=8. Anchorage.=--The rights of navigation are usually paramount in all
navigable waters and the right of anchorage is essential for a full
enjoyment of such rights. These waters are, in many respects, like
highways on the land, and there is a like privilege of stopping upon
them, from time to time, as an incident to the right of travel thereon,
subject to the reasonable requirements of traffic and the rights of
abutting property. The right of passage extends to every part of the
water, but the right of anchorage is confined to such places as are
usual or reasonable, in view of local conditions. It does not imply the
power to remain for long periods of time or to create a nuisance.
Charges for anchorage may be made by the owner of the property used if
it is an artificial one so that his work in improving or rendering it
accessible forms a consideration for the amounts required. Generally,
where only a natural roadstead is utilized in the course of navigation,
it is no more subject to expense to the vessel than the temporary
stopping of a vehicle upon a street.
The vessel, being at anchor in a proper place and otherwise complying
with law, is not liable for damages sustained by collision with it, but,
obviously, will have a strong case against the ship which runs her down.
She ought not to anchor in an exposed situation, except in cases of
necessity, and then only as long as the necessity prevails.
=9. Obstructions to Navigation.=--Anchored vessels, like wharves, piers
and the like, may constitute serious obstructions to navigation but this
does not give others the right to run them down. Approaching vessels are
still bound to use ordinary care and skill to avoid them. It is the duty
of a ship under way, whether the vessel at anchor be properly or
improperly anchored, to avoid, if it be possible with safety to herself,
any collision whatever, and the courts have frequently held that even if
a ship is brought up in the fairway of a river, if the other could with
ordinary care have avoided her, the latter will be held solely to blame.
In the case of the Future City, 184 U. S. 247, a tug and tow descending
the Mississippi River at New Orleans, upon rounding a point came in
collision with several battleships of the United States Navy, anchored
in line on swinging chains. It appeared that they had taken up these
berths in the fairway for descending vessels contrary to the usage of
the port and against the advice of the Board of Harbor Masters, who,
however, had no authority over naval vessels. There was abundance of
good anchorage elsewhere in the harbor. The Supreme Court held the
Government liable for the negligent anchoring of the naval vessels and
that the tug was not guilty of contributory negligence in being unable,
after rounding the point, to check the headway which the current of the
river imparted to the tow.
The Court quoted with approval the language of Spencer on Marine
Collisions:
It is negligence for a vessel to moor so near the entrance to a harbor
that shipping, entering in stress of weather, is liable to become
embarrassed by its presence; and where the usual difficulties of
navigation make the entrance to a harbor a dangerous undertaking, it is
especially reprehensible for a vessel to moor in a situation tending to
increase these difficulties.
Where a vessel is at anchor in a proper place, and is observant of the
precaution required by law, it is not liable for damages sustained by a
vessel in motion colliding with it, but where it anchors in an unlawful
position, or fails to observe the statutory requirements and such other
precautions as good seamanship would suggest, it must suffer the
consequences attending a violation of the law.
In cases like these, the admiralty is inclined to follow the rule of the
famous donkey case (Davies _v._ Mann., 10 M. & W. 546), where the owner
of the animal had fettered its forefeet and, in that helpless condition
turned it into a narrow highway; then the defendant's wagon came along
very fast and carelessly and the donkey was crushed; the defendant had
to pay for it because, if the driver of the wagon had been decently
careful, the consequences of the negligence of the owner of the donkey
would have been averted. Any vessel not "under way," as when aground,
moored, or at a wharf, is in the position of anchored vessel and subject
to similar rights and liabilities.
CHAPTER XVII
ADMIRALTY REMEDIES
One of the reasons for the continued vitality of the admiralty lies in
the efficiency of the remedies which it affords. If it were not for
these it is quite possible that it would long since have been absorbed
by the common law as was the law merchant many years ago. Parties having
rights to enforce will usually resort to the admiralty in preference to
any other court if the selection is open to them. This is not so much by
reason of any difference in the law as in the methods of its
application. Admiralty remedies may be divided into proceedings, _in
rem_, _in personam_, and under the Limited Liability Act.
=1. Proceedings in Rem.=--This procedure is peculiar to the American
admiralty and does not exist in the common law. As the name indicates,
it is directed against the thing itself to enforce property rights which
inhere in it, mainly maritime liens. It belongs to the courts of
admiralty exclusively and similar remedies attempted to be given by
state statutes are unconstitutional and void. The characteristic feature
of this proceeding is that the vessel or thing proceeded against is
itself seized and impleaded as the defendant and is judged and sentenced
accordingly. Sales made under it are good against all the world while at
common law it is only the title of the defendant which is affected and
the title conveyed can never be better than his own. The nature of the
proceeding is more apparent when it is noted that the admiralty
personifies the ship and considers her capable of incurring legal
obligations entirely irrespective of her owner's personal responsibility
therefor. There is no such doctrine in the common law.
American courts of admiralty--that is to say, the United States district
courts--take jurisdiction _in rem_ not only of domestic vessels but of
ships flying foreign flags, and of controversies originating on the high
seas and in foreign waters. The test is, whether the subject matter is
within admiralty jurisdiction. The admiralty courts are not bound to
take jurisdiction of controversies between foreigners, but they may
exercise it in their discretion and frequently do so, applying the
principles of international law or the _lex loci contractus_. In the
exercise of their discretion to take jurisdiction of suits between
foreigners, the courts give consideration to the wishes of consuls of
the nations involved, though they are not bound to do so. The United
States courts have jurisdiction _in rem_ for supplies furnished American
ships in foreign ports and foreign ships in American ports. They may in
their discretion take jurisdiction of claims for wages by foreign seamen
against foreign ships in American ports, and, of course, of claims of
American seamen against foreign ships. The principle upon which the
court is to determine whether to exercise jurisdiction is whether the
rights of the parties would best be served by retaining the cause or
remitting it to the foreign court.
Foreign governments sometimes own or operate merchant vessels, and a
serious question arises, as yet undetermined by the Supreme Court,
whether such vessels are, like naval vessels, exempt from maritime
liens, or whether they are subject to the process _in rem_ of the
admiralty courts. By the act of March 9, 1920, Shipping Board vessels
are immune from arrest, but provision is made for suit _in personam_
against the government. Vessels of the Panama Railroad, although it is a
government agency, are subject to suits _in rem_.
=2. When Proceedings in Rem Will Lie.=--Generally speaking, every
maritime lien includes the right to enforce it by a proceeding _in rem_.
The person who has a maritime lien upon a vessel is entitled to proceed
directly against her in a court of admiralty for the locality in which
she happens to be. Thus in all suits by materialmen for supplies,
repairs, or other necessaries; in all suits for mariners' wages,
pilotage, collision, towage, hypothecation, bottomry, salvage, and the
like, the process may be _in rem_.
=3. The Libel.=--No process or writ can be issued by a court of
admiralty before a libel is filed in the clerk's office. A libel is the
statement of the party's claim and the relief or remedy which he
desires. It states the nature of the cause, for example, that it is of
contract, or of tort or damage, or salvage, as the case may be; the
ship, or property, against which the claim is made and that it is, or
soon will be, within the district; the facts upon which the claim is
based; and the relief sought. For convenience, it should be expressed in
concise paragraphs or articles, and, of course, must state a case within
the jurisdiction of the court.
=4. The Writ or Process.=--Upon a libel being properly filed in the
office of a clerk of a district court of the United States, a writ of
attachment is prepared and delivered to the marshal which commands him
to arrest and take the ship, goods or other things into his possession
for safe custody; and to cause public notice thereof, and of the time
fixed for the return of the writ and the hearing of the cause, to be
given in such newspaper within the district as the court shall order. It
is then the duty of the marshal to obey the writ, arrest the property
and give due notice according to law.
=5. Owner's Rights.=--The owner whose vessel is seized in admiralty is
entitled to release her immediately by giving a bond to secure payment
of the libellant's claim. This bond may be in double the amount of the
claim, or for such smaller amount as may be agreed upon between the
parties, or for the appraised value of the ship. In practice, such bonds
are usually arranged between the parties and their proctors[32] without
the expense and delay incident to an actual seizure. It is not unusual
to notify the owner of the commencement of the suit before process is
issued and he will generally agree to appear and bond accordingly. This,
however, is only courtesy and not a matter of right. At the same time
the amount of the bond can be arranged and, when filed, the suit
proceeds as if there had been an actual arrest and bonding. The bond
takes the place of the ship for all legal purposes and she proceeds
about her business entirely freed from the lien in suit.
The owner must establish his status with the court by filing a claim.
This is a formal statement on oath of his title to the property. If he
desires to contest the libellant's demand, he must file an answer to the
libel. The cause is then at issue and will be disposed of by the judge
in due course. The time will depend largely on the parties.
=6. Default.=--If the owner does not claim and bond his ship on the
return-day named in the writ, the libellant may take his default. The
court then investigates the demand _ex parte_ and makes an appropriate
decree for the sale of the ship to satisfy the amount due.
=7. Interlocutory Sales.=--When the property remains in the custody of
the marshal and is subject to undue expense or risk of loss, the court
may order its immediate sale for the benefit of all concerned. The
proceeds are paid into the registry of the court and represent the ship
for all purposes up to the time of the sale. The purchaser at such a
sale, as well as at a sale under a final decree, obtains a clear and
perfect title, if the proceedings have been in accordance with law. All
claims and liens are relegated to the proceeds.
=8. Intervenors.=--All persons legally interested in a ship are entitled
to appear and be heard by the court when she is in the custody of a
court of admiralty. Such are parties having other maritime liens upon
her and mortgagees. Their claims are presented, pursuant to the public
notice given by the marshal, by intervening libels or petitions and they
are called intervenors. The form of such petitions is substantially like
that of an original libel. Generally when an owner will not bond his
ship, she has become heavily in debt and all her creditors will be
obliged to intervene in the proceeding in order to protect their
accounts. A sale is accomplished and the proceeds brought into court as
soon as possible. Distribution is then made between the various lienors
according to their rank and priority. Any surplus will belong to the
owner and he may obtain it at any time before it is covered into the
Treasury of the United States as unclaimed funds.
=9. Costs and Expenses.=--These are largely within the control of the
parties and become heavy only to the extent that the court is burdened
with the care of the property or its proceeds. If promptly bonded, the
necessary costs are very small. If the marshal remains in possession,
his costs will include ship-keeper's charges and all other expenses
which the situation occasions. If he sells, there will be his commission
on the amount realized, 2-1/2 per cent. on sums under five hundred
dollars and 1-1/2 per cent. on sums in excess; the clerk will be
entitled to a commission of 1 per cent. for handling the proceeds. His
other necessary costs are small. Where, however, there is prolonged
litigation, the expenses may become very heavy, especially in respect of
stenographer's accounts and the fees of commissioners to whom matters of
detail may be referred.
=10. Proceedings in Personam.=--Suits may also be brought against a
defendant personally in the admiralty, where the subject matter is
maritime and a personal liability exists. Such a liability always
attaches to the person who made the contract or did the wrong for which
the action is brought. In a few instances of maritime torts, like
assaults and beatings on the high seas, the remedy is _in personam_ only.
=11. Process in Personam.=--The writ here is usually a simple monition
or summons to appear and answer the libel, like the ordinary writ in an
action at law, but where the defendant cannot be found within the
district, it may contain a clause for the attachment of his goods and
chattels, or garnishment of his credits and effects. This proceeding is
often very effective in obtaining security for the judgment when the
proceeding _in rem_ cannot be employed.
=12. Proceedings in Limitation of Liability.=--The shipowner is entitled
to limit his liability on account of the ship to its value in many cases
and the General Admiralty Rules promulgated by the Supreme Court provide
a very valuable proceeding for this purpose. In substance, whenever an
owner is threatened with a multiplicity of suits on account of damage
done by his ship, or by a claim or claims in excess of her value, and he
is not personally liable on such account, he may file a petition in the
proper court and surrender the ship to a trustee or give a bond for her
appraised value. All other suits are thereupon stayed and all creditors
must present their claims in the proceeding which he has so instituted.
In effect, it is a maritime bankruptcy by which the ship, or her value,
is surrendered to creditors for _pro rata_ division and the owner goes
free from further claims. It is the application of one of the underlying
doctrines of the maritime law by which a shipowner, on abandoning the
ship, can protect himself from further responsibility on her account.
[32] In admiralty an attorney is called a proctor. The term is being
generally abandoned.
APPENDICES
APPENDIX I
SUMMARY OF NAVIGATION LAWS OF THE UNITED STATES
JASPER YEATES BRINTON[33]
I. SHIP REGISTRY 228
General 228
Registry and Nationality 228
Registry and the Flag 229
Registry and Ownership 229
Vessels Entitled to American Registry 229
Forms of Register, Enrollment and License 231
Restrictions as to Coastwise Trade 231
Procedure for Documenting Vessels 232
1. Presentation of Carpenter's Certificate 232
2. Surveyor's Certificate of Measurement 232
3. Securing and Marking of Official Number 233
4. Marking of Official Tonnage 233
5. Marking of Name and Home Port 233
6. Evidence that Number, Tonnage, Name and Home
Port are Properly Marked 234
7. Owner's Oath 234
8. Master's Oath 235
9. Special Oath by a Corporation 235
10. Evidence of Outstanding Certificate of Inspection 235
Bill of Sale Not Required on Original Documentation 236
Surrender and Reissue of Documents 236
II. RECORDING OF BILLS OF SALE 237
III. PREFERRED MORTGAGES UNDER MERCHANT MARINE ACT 238
IV. CHANGE OF NAME 240
V. ENTRY AND CLEARANCE 241
VI. SHIPPING ARTICLES 242
VII. LICENSING AND QUALIFICATIONS OF OFFICERS 244
VIII. QUALIFICATIONS OF SEAMEN 245
Age 246
Service and Physical Qualification 246
Lifeboat Men 246
Language 246
IX. NATIONALITY OF OFFICERS AND CREW 246
Officers 246
Crew 247
X. WAGES 247
Advances 247
XI. WATCH AND WATCH AND WORK-DAY 248
XII. PROVISIONS FOR CREW 249
Sleeping Quarters 249
Washing Places 249
Provisions Scale 249
Hospital Accommodations 250
Warm Room and Woolen Clothing 250
XIII. PERSONAL INJURIES TO SEAMEN AND RECOVERIES FOR DEATH 250
XIV. OFFENSES BY SEAMEN 251
Mutiny, Desertion and Disobedience 251
Miscellaneous Offenses 252
Assistance in Case of Collision 252
XV. RULES OF THE ROAD 253
XVI. PILOTAGE 253
XVII. LENGTH OF HAWSERS 254
XVIII. INSPECTION OF STEAM VESSELS 255
Barges 255
The Certificate of Inspection 255
Manning of Inspected Vessels 256
XIX. REGISTER TONNAGE 256
XX. TONNAGE TAXES 257
XXI. NAVIGATION FEES 258
XXII. ANNUAL LIST OF MERCHANT VESSELS 258
XXIII. NUMBERING OF UNDOCUMENTED MOTOR BOATS 258
XXIV. ADMINISTRATION OF NAVIGATION LAWS 259
Commissioner of Navigation 259
Steamboat Inspection Service 259
Shipping Commissioners 260
XXV. THE SHIPPING BOARD 260
SUMMARY OF THE NAVIGATION LAWS OF THE UNITED STATES
While the navigation laws of the United States are in many respects the
most advanced and progressive of any in the world, the form in which
they exist is far from satisfactory and is a serious handicap on their
usefulness. They are voluminous and complicated and in much confusion.
Even on comparatively simple topics it is often impossible to
distinguish the law of to-day from the law of yesterday.
The reason is not hard to find. It lies in the fact that these laws
represent one of the oldest bodies of statute law in the books, and for
well over a century have been subject to a steady piecemeal amendment,
but with little or no attempt at revision or codification. The result is
that on almost every subject there is a bewildering overgrowth of
laws--law after law covering and partly modifying, but seldom explicitly
repealing, the older law, which thus remains as a stumbling block to
even the expert reader.
A complete revision is urgently needed and has been undertaken by the
Shipping Board. In the meantime, it is of course desirable that
knowledge of the laws as they exist shall be made as conveniently
accessible as possible and the summary herewith is presented as a
contribution towards that end. It does not pretend to be either complete
or exhaustive, but merely undertakes to cover very generally the
principal topics, with a somewhat more extended reference to the
practical aspects of ship registry as embodied not only in the laws but
in the regulations and practices which have grown up around them.
Most of the statutes which have been summarized herein except the recent
Merchant Marine Act (Jones Bill) and other laws of this year will be
found in the 600 page compilation of the Navigation Laws (1919) prepared
with the thoroughness and accuracy to be looked for from any work issued
under the direction of the present Commissioner of Navigation. It may be
procured from the Superintendent of Documents, Washington, at the cost
of one dollar. Subject to the obvious limitations on any compilation
which must necessarily include a large body of conflicting and
practically obsolete statutes, the work is in every respect admirable.
The volume, however, is confined to statute law, and for much of the
practical information covering those branches of operation of ships
involving the agency of the customs service, including the documentation
of vessels, reference must be had to the Customs Regulations, the last
edition of which was published under date of 1915, and which may also be
secured from the Superintendent of Documents.
In addition to these two principal compilations reference should also be
made to the series of Rules and Regulations of the Board of Supervising
Inspectors, issued by the Steamboat Inspection Service, Department of
Commerce, to the various publications of the Department covering the
Rules of the Road, the International Rules, the Inland Rules, and the
Pilot Rules, respectively, together with the notable series of pamphlets
issued by the Department from time to time, covering such special
subjects as the Measurement of Vessels, the Comparative Study of
Navigation Laws of the Maritime Nations, and other similar topics. So
far as the writer is aware, however, there is no volume which contains
any general summary of the whole body of our navigation laws.
I. SHIP REGISTRY
=General.=--Under the power to regulate commerce Congress, among its
earliest enactments, adopted a system of ship registry for
American-owned bottoms and created the class of vessels to be known as
"vessels of the United States." The purpose of establishing this system
was the double one of encouraging domestic commerce and of building up
our national defense. It did not require and (with certain war-time
exceptions) has never required that American-owned ships should be
registered, but by imposing prohibitory penalties on foreign trade in
American-owned vessels which are _not_ registered, and by closing the
coasting trade entirely to all except American-owned vessels (or vessels
operating during war time under special permission of the Shipping
Board) it made the securing of appropriate documents--a register--an
enrollment and license--or a simple license, as the case may be,--a
practical necessity for American-owned vessels engaged in American
trade. In passing it is to be noted that while a ship's registry is a
special document, distinguished from the enrollments and licenses of
smaller vessels, the word _registry_ is commonly used as covering
generally all three classes of documentation.
=Registry and Nationality.=--While vessels, like citizens, are commonly
said to have a nationality, their _nationality_ is not necessarily a
matter of _registry_. Nationality means rather--To what country does the
ship in fact belong and to whose protection is she entitled? As far as
the United States is concerned this nationality--this right to
protection--depends upon _ownership_.
Therefore, if a ship is actually owned by American citizens, her
nationality is American, and she is entitled to the protection accorded
to American property all the world over, regardless of the fact that for
any reason she may not be entitled to, or may not desire to take,
American registry.
=Registry and the Flag.=--In the same way, the right to fly the American
flag is not dependent upon American registry, but upon American
ownership. The flag is only the symbol of nationality and of a right to
protection. It is the signal to other vessels at sea--conveying
information as to nationality, just as her other signals are used to
convey the name of the private owner or of the line to which she
belongs. It follows that the American flag may be flown upon any vessel
owned by American citizens. For many years vessels of this character
flying the American flag have been familiar in the trade in the Far and
Near East.
The rule as to the use of a flag is somewhat different and more strict
in England. Under the Merchant Shipping Acts the use of a British flag
on board a ship owned either in whole or in part by persons not lawfully
qualified to own a British ship, subjects the vessel to forfeiture. But
there are no such provisions in the law of the United States and
questions as to the improper use of the flag of this country upon
vessels have not arisen, although occasional diplomatic negotiations
have been undertaken to prevent the use of the American flag in foreign
countries. Generally speaking it may be said that the United States has
been extremely lax in regulating the use of her flag.
=Registry and Ownership.=--Just as registry is not necessary to give
nationality, with its corresponding right to protection, so it is true
that the transfer of title to ships is not dependent upon its registry
laws. While title to a ship must be passed by bill of sale, this does
not depend upon any requirement of the United States law, but arises out
of the general maritime law. It is only in the case of ships that are to
be registered or enrolled that it is necessary that the transfer be made
according to the particular and very specific form prescribed by the
registry acts.
=Vessels Entitled to American Registry.=--Under the early ship registry
acts, and for a period of over 120 years, American registry was confined
to American-built ships. Such alone were "deemed vessels of the United
States, and entitled to the benefits and privileges appertaining to such
vessels." As already noted, these privileges were, in effect, the right
to engage in American trade.
In 1892, a special act was passed granting American registry to certain
foreign-built vessels of the American Line under conditions as to the
building of other vessels, but this was a special and very limited
proviso.
The Panama Canal Act of 1912, however, made a radical change in our
policy and opened American registry to foreign-built vessels not over
five years old, owned by American citizens, although denying to these
vessels the privilege of entering the coasting trade.
The Ship Registry Act of 1914 went a step farther and removed the
limitation as to age, and also authorized the President to suspend, as
to these vessels, the rigorous provision that the watch officers of all
vessels engaged in foreign trade should be citizens of the United
States. This authority was exercised by the President and many such
vessels have been registered.
In 1915 a law was passed to facilitate the transfer of American-owned
vessels from foreign to domestic registry by a repeal of the prohibitory
duties on such vessels on condition that before leaving an American port
they should secure the necessary documentation.
The Shipping Act of 1916, as amended in 1918, and again by the Merchant
Marine Act of 1920, further enlarged the scope of the registry laws by
providing that vessels (whatever their previous history) purchased,
chartered or leased from the Board by citizens of the United States may
be registered, or enrolled and licensed, or both enrolled and licensed,
as vessels of the United States and entitled to the benefits and
privileges of such documentation.
The various classes of vessels now entitled to registry under these laws
may be thus divided:
(1) American-built vessels which have always been American-owned;
(2) American-built vessels formerly owned by foreign owners, but
subsequently purchased by American citizens;
(3) Vessels captured in war lawfully condemned and owned by citizens;
(4) Vessels forfeited for breach of the laws;
(5) American-built vessels sold by the government to citizens, and
foreign-built vessels bought or chartered by the government and sold to
citizens;
(6) Vessels whose documentation is authorized by special act;
(7) Wrecked vessels purchased by citizens and repaired in American
shipyards on proof that the repairs are equal to three times the
appraised salved value; this is a special permission which is a dead
letter except as to the coastwise trade, as wrecks can now be admitted
to registry for foreign trade regardless of the amount of repairs;
(8) Vessels for foreign trade wherever built, wholly owned by citizens
of the United States;
(9) Vessels purchased, chartered or leased from the Shipping Board by
citizens of the United States.
Barges, lighters and other boats provided with sails or internal motive
power, if falling within these classifications, are entitled to
documents, as also barges and boats without sails or internal motive
power engaged in the Canadian trade or employed upon the marine waters
of the United States or engaged in the carriage of passengers.
The following classes of vessels are not within the provisions of the
registry laws and therefore require no documents:
(1) Boats or lighters not masted, or if masted and not decked, employed
in the harbor of any town or city and not carrying passengers.
(2) Barges or canal boats or boats without sails or internal motive
power employed wholly upon canals or on the internal waters of the state
and not engaged in trade with contiguous foreign territory and in
carrying passengers;
(3) Barges or boats without sail or motive power, plying on inland
rivers or lakes of the United States, also not engaged in trade with
contiguous foreign territory and in carrying passengers;
(4) Vessels plying waters wholly within the limits of the state having
no outlet into a river or lake on which commerce with foreign nations or
among the states can be carried on.
=Forms of Register, Enrollment and License.=--The Law provides for three
classes of documents; (1) A Register; (2) An Enrollment and License; (3)
A License.
Originally the license, which is applicable only in the coasting trade,
was an altogether separate document from the enrollment, the form of
each document being provided by statute. In 1906, however, the two
documents were consolidated into one, so far as enrolled vessels were
concerned, leaving the license only to be required in the case of
smaller vessels. As the law now stands these documents are distinguished
as follows:--
_Registry_ is _required_, for vessels engaged in the foreign trade and
in the trade with our insular possessions, except Hawaii and Porto Rico,
and is _permitted_ to vessels engaged in the domestic trade under
certain requirements as to entry at the Custom House when laden with
certain commodities, etc. There is but a single form of register.
_Enrollment of License_ is _required_ for vessels of twenty tons or over
when engaging in the coasting trade. Separate forms are issued for the
coasting trade or fisheries, and for yachts.
_License_ alone is _required_ for vessels between five and twenty tons
when likewise engaged in the coasting and fishing trade.
Vessels of less than five tons may not be licensed, nor may pleasure
vessels of less than sixteen tons be documented except under special
instructions from the Department of Commerce.
In general form and purpose these documents closely resemble each other
and further consolidation and simplification is badly needed.
=Restrictions as to Coastwise Trade.=--From 1817 until the recent war
the coastwise trade of the United States was limited to vessels of the
United States. This restriction, however, was removed by the shipping
Act of 1916. Under this act (§ 9) the Shipping Board was authorized
generally (with certain very limited exceptions) to purchase, lease and
charter vessels suitable for its purposes, regardless of whether
foreign-built or not, and also to sell and charter the same to citizens
of the United States, such vessels being entitled to American registry.
As to all such vessels the Act specifically provided that they should be
permitted to engage in the _coastwise_ trade. This privilege was also
extended to vessels owned, chartered or leased by the Emergency Fleet
Corporation (see § XXV, below).
In addition, under an act passed in 1917, the Shipping Board was given
authority in its discretion to permit vessels of _foreign registry_, and
foreign-built vessels which had been admitted to American registry under
the Act of 1914, already referred to, to engage in coastwise trade
during the war, and for three months thereafter.
This latter act has been in terms repealed by the Merchant Marine Act of
1920, but with the proviso (§ 22) that all foreign-built vessels
admitted to American registry, which were owned on February 1, 1920, by
citizens of the United States, and all foreign-built vessels owned by
the United States on the date of the signing of the Act (June 5, 1920),
when sold and owned by citizens of the United States, may engage in the
coastwise trade so long as they continue in such ownership.
The general policy above outlined is supplemented by a further proviso
of the Merchant Marine Act (§ 27) forbidding the transportation of
merchandise between points in the United States, or such of its
possessions as are subject to the operation of the coastwise laws, in
any other than documented vessels of the United States, owned by
citizens of the United States, except in the case of the vessels to whom
the privilege has been extended by the provisions above referred to.
=Procedure for Documenting Vessels.=--Marine documents are issued by the
Collectors of Customs for the various collection districts, one district
frequently including several ports. The District of Philadelphia, for
instance, includes Camden, Gloucester City, Chester, Somers Point,
Tuckerton, Thompson's Point, Wilmington and Lewes.
Practically each step in the process of securing the ship's papers is
marked by the production or issuance of one or other of a number of
important documents. These steps are as follows:
_1. Presentation of Carpenter's Certificate._--The Carpenter's
Certificate, sometimes referred to as the Master Carpenter's Certificate
or Builder's Certificate, is the starting point of the vessel's official
status in the eyes of the government, and is the first document to be
produced before the Collector. It is the vessel's birth certificate, and
is required in order to fix the origin of the vessel, to secure and
place on record the best evidence as to the date and place of its
building, the name of its builder, and its general description, given
under the oath of the builder. For the purpose of this certificate the
time of building is the time of completion; the place of building is
that where the hull was built. Both of these facts must appear on all
marine documents. The Carpenter's Certificate is not a document of title
and does not of itself vest any interest in the person holding it. It is
sufficient to authorize the vessel to be removed from the district where
she has been built to another district in the same or an adjoining State
where its owner resides, provided it be in ballast only. This document
is filed of permanent record in the Custom House where the vessel
receives her papers. The difficulties frequently encountered in the way
of securing the certificate of the builder himself have led to the
adoption of a regulation permitting other competent evidence
establishing the same facts, subject to the approval of the Commissioner
of Navigation.
_2. Surveyor's Certificate of Measurement._--The measurement of the boat
contained in the Carpenter's Certificate not having been made by a
government officer, is not an official measurement. It is therefore
specifically required that there shall be produced a certificate of such
an official measurement made, prior to every registry, by the Surveyor
of Customs or by some person appointed by him, at the port where the
vessel is, or if there be no such officer, by some one appointed by the
Collector. The Surveyor is the "outside man" in the Custom House
administration, the official who superintends and directs the inspectors
and weighers, who visits all vessels as they arrive in port each day,
and who incidentally is charged with this particular duty of measuring
vessels for register. His certificate of measurement is required to show
not only the measurement of the vessel, i.e., length, breadth, depth,
etc., but her build, her tonnage, number of decks and masts. It is also
required to state that the vessel's name and the place to which she
belongs are painted on her stern. Once measured, it is not necessary
that the vessel shall be measured again upon each successive register.
Like all the other documents incident to the registration of the vessel,
the form of this document is provided by the government and must be
countersigned by an owner, or by the master, or by the owner's agent.
_3. Securing and Marking of Official Number._--The Secretary of Commerce
has been authorized to provide a system of numbering all documented
vessels. An application for such number must be made through the
Collector of Customs by the master or owner. Each vessel so numbered
must have her number "deeply carved or otherwise permanently marked on
her mainbeam," preceded by the abbreviation "No."
Prior to 1866 the penalty for the violation of this requirement was the
severe one of forfeiting her status as a vessel of the United States.
To-day the penalty is a fine of $30 upon every arrival of the vessel in
a port.
_4. Marking of Official Tonnage._--The law also requires that the net
tonnage of a vessel shall be deeply carved or otherwise permanently
marked on her mainbeam. This tonnage--representing the entire cubic
contents of the interior of the vessel, excluding the spaces occupied by
the crew and the propelling machinery, and known as the "registry
tonnage" or "register tonnage"--is defined by elaborate provisions of a
law passed in 1864, which has been several times amended. It is fixed in
the first instance by the surveyor or other officer measuring the boat.
_5. Marking of Name and Home Port._--The law requires that the name of
the vessel shall be marked upon each bow and upon the stern, and that
the home port shall also be marked upon the stern. These names may be
painted or gilded, or they may consist of cast or carved Roman letters
in a dark color on a light ground, or in a light color on a dark ground,
secure in place, distinctly visible, and not less in size than four
inches. Originally the names of vessels were required to be in white on
a black ground. In 1875 yellow and gilt letters were permitted. The rule
as we now have it dates from 1891. The penalty for violation of this law
is $10 for each name which is omitted.
In addition to this, every steam vessel of the United States is required
to have her name conspicuously placed in distinct, plain letters not
less than six inches high, on each outer side of the pilot house, and in
case the vessel is a side-wheeler, then also upon the outer side of each
wheel-house. "Double-enders" may place the names on the parts
corresponding to the bow and stern; and on vessels whose sterns do not
allow sufficient space for lettering, the letters may be placed on
adjacent parts so as to conform as closely as possible to the
requirements, and provided always that the home port shall be marked at
_one_ end of the vessel.
Scows, barges and other vessels with square bows may be marked on the
bow instead of the side, where such marking would be speedily worn out
by chafing against other vessels.
The "home port" as required to be marked on the stern of the vessel, may
mean either the _port_ where the vessel is documented, _or_ the place in
the _same_ district where the vessel was _built_, _or_ where one or more
of the _owners reside_. From this it follows that the home port need not
be the port of documentation, for, as already noted, the law is that the
vessel must be _registered_ in the district which includes the port to
which the vessel at that time _belongs_, such port being defined by law
as that at or nearest to which the owner, or if there be more than one,
the managing owner of the vessel, usually resides.
Questions as to what is a vessel's "home port" frequently arise in
connection with contracts for repairs and supplies and liens arising
from the same. As will be seen the port of registry and the home port
may often be quite different places.
_6. Evidence that Number, Tonnage, Name and Home Port are Properly
Marked._--The Surveyor's Certificate under the form now in use should
have covered all of these various points. However, if for any reason
they have not been so covered, as for instance, if the vessel is out of
the district in which she is being documented, the law requires that
evidence be produced by the owner that all these requirements have been
complied with. Thus, if the vessel is elsewhere, the owner may make an
affidavit that the necessary has been done, but as soon as the vessel
arrives within the vessel's home district, where the inspection
certificate of a customs officer can be secured, such a certificate must
be produced.
_7. Owner's Oath._--Before a vessel can be documented, the owner, or an
officer or agent of the owner, whether individual or corporate, must
make an affidavit disclosing the general facts as to the ownership of
the boat, giving the names of its various owners, their proportions of
ownership, and the citizenship of each of them, etc. It must also
include a statement as to the name and tonnage of the vessel, and the
place and nature of her construction. This oath is an absolute
requirement, and if the vessel is documented without it, the document is
void, and the vessel is not entitled to be considered a vessel of the
United States.
It is also required that the owner's affidavit shall name the master of
the vessel together with a statement that the master is a citizen, with
a note of the means whereby he acquired his citizenship. The person thus
named by the owner is thereby deemed her master for all legal purposes,
regardless of the question of his competency, or as to who actually
commands the vessel, but no name of a master who has not the necessary
license to command a vessel of the class in question will be accepted by
the Collector. Thus, while in the case of a _barge_ any citizen may be
_named_ as the master, or one citizen may be named as master for any
number of barges, in case of a tug or larger vessel requiring a licensed
master, the person named as master must be licensed and qualified to
perform this duty. This, however, is entirely irrespective of whether he
has in fact assumed or does in fact assume actual command over the
vessel. For such purposes the command may be a nominal one.
The importance of this document is illustrated by the fact that the
penalty for a statement knowingly false is a forfeiture of the vessel,
or of its value, to be recovered from the person by whom the oath was
made.
_8. Master's Oath._--In addition to the oath of the owner as to the name
and qualification of the master, it is specifically required that if the
master is within the district where the registry is made at the time of
application for it, an oath must be taken by _him_, instead of by the
owner, covering his citizenship. In the case of a false oath by the
master the vessel is not forfeited, but the master is liable to a
penalty of $1,000. Every change of master must be reported at the first
port and indorsed on the document.
_9. Special Oath by a Corporation._--Under recent legislation a special
oath is required in the case of corporations, covering any question of a
possible foreign interest in the corporation. This oath must set forth
"that the controlling interest in the said company free from any alien
trust or fiduciary obligation, or any understanding that it may be
exercised directly or indirectly on behalf of any alien, is owned by
citizens of the United States, and that the President and Managing
Directors are citizens of the United States and that the corporation is
organized under the laws of some particular State".
_10. Evidence of Outstanding Certificate of Inspection._--It is
specifically forbidden to issue a ship's document on any vessel subject
to the inspection laws until a copy of the certificate of inspection as
issued by the Local Inspectors, has been filed with the Collector of
Customs. If the original certificate is not available, a certified copy
can always be secured from the office of the proper Collector of Customs.
=Bill of Sale Not Required on Original Documentation.=--The foregoing
completes the steps or documents necessary for the original registration
of a vessel.
It will be observed that no reference has been made to a bill of sale.
This is because no such bill is required by law to be produced at the
first registration. In fact the only bill of sale recognized by statute
is a bill which _itself_ contains a copy of the ship's document, and
therefore such a bill could not be produced before the registration had
actually taken place. All that is required in the first instance,
therefore, is the Carpenter's Certificate with the affidavits as to
ownership, etc. These documents are taken as establishing the ownership,
and laying the foundation for registry in a particular name. However,
the bill of sale may be actually in existence, having been given either
by the builder himself or by some one who had subsequently acquired
title to the vessel before her documentation. In such case the bill of
sale should be produced to complete the chain of title, and will be
retained at the Custom House with the Carpenter's Certificate as a link
in the chain. But it will not be recorded, for the law makes no
provision for the recording of bills of sale except in the sense of
transfers of documented vessels, as hereafter referred to.
=Surrender and Reissue of Documents.=--The foregoing summarizes the
steps to be followed in the case of an _original_ registration. But on
every change in the status of the vessel a new registry must be secured,
and the vessel must be documented anew. This is the case where a vessel
is _sold_ in whole or in part to a citizen of the United States, or
where it is _altered_ in whole or in part, by being rebuilt or
lengthened or built upon, or is changed from one classification or
denomination to another, by alteration in its mode or method of rigging
or fitting. It also applies to the case of a change of name as hereafter
referred to, and, in case of corporations, to the death of the officer
in whose name vessel is documented.
It should be borne in mind that the penalty for failure to effect such a
new registration is the severe one that the vessel shall cease to be
considered a vessel of the United States. No time limit for the accruing
of this penalty, however, has been fixed by law.
In case of such new registration the process is the same as above
outlined, but omitting the earlier steps relative to the measurement and
marking of vessel, official number, etc., all of which are certified to
by the previous document.
In the case of the _sale_ of the vessel, it is of course the bill of
sale that furnishes the foundation for the transaction, which must be
accompanied by the owner's and master's oaths as already outlined.
The bill of sale, as the all-important and indispensable document, must
be made to comply strictly with the requirements covering registry, the
most important of which is that it will recite at length the last
previous certificate issued to the vessel. This proviso is of great
importance in England. The inaccurate recital of such a certificate
voids the sale entirely. In the United States the penalty is not so
severe, but still severe enough, as the ship is deprived of her American
character.
The bill of sale when produced is recorded in the office of the
Collector of Customs in accordance with the law hereinafter referred to,
and is returned to the owner producing it, as in the case of any other
bill of sale which the owner may desire to have recorded.
It frequently happens that it becomes necessary to secure new documents
for a vessel which is distant from the port where her new owners reside,
and where it is desired that she shall be documented. In such case it is
often impractical at the time to secure the outstanding papers for
surrender. The practice is to secure certified copies of the same either
from the office of the Collector where they were issued or from the
office of the Commissioner of Navigation at Washington, giving the
necessary oath for the production of the original documents when they
come to hand.
It also frequently happens that the certified copies, or indeed
sometimes the original documents themselves, do not bear upon their
face, as they should, a notation as to the date of expiration of the
certificate of inspection of the vessel. In this case some evidence of
an outstanding inspection must be produced to the Collector. The
simplest plan is to secure, by wire if necessary, a statement from the
appropriate Collector of Customs that such an inspection is outstanding.
The law is very strict on the surrender of the old documents upon the
issuing of new ones, as also in those cases where a ship loses her right
to continue as a vessel of the United States. The old law, passed in
1792, provided for the giving of a bond by the ship's husband or the
acting or managing owner, varying in amount according to the tonnage of
the boat from $400 to $2,000, guaranteeing that the registry should be
used only for the vessel for which it was granted, and should not be
sold, lent or otherwise disposed of, and that in case the vessel were
lost or taken by an enemy or otherwise prevented from returning to the
port, the certificate, if preserved, should be delivered up within eight
days of her return to port, etc. The present law substitutes for this
bond a penalty of $500 and declares the Certificate of Registry to be
void after a violation of any of the requirements as to its surrender.
It frequently happens that a document is lost or wrongfully withheld
from the possession of the owner. In this case, upon the oath of the
master or other person having charge of the vessel, a new document may
be issued either temporary in form, if the vessel is out of her own
port, or permanent, if she is in her own port.
II. RECORDING OF BILLS OF SALE
The present law on the subject of recording bills of sale is included in
the general mortgage provisions of the new Merchant Marine Act, under
which it is provided that no sale of a vessel shall be valid against a
ship unless the bill of sale is recorded by the Collector of Customs in
an official register, which is required to show
(1) The name of the vessel;
(2) The names of the parties to the sale;
(3) The time and date of receiving the bill of sale; and
(4) The interest in the vessel so sold.
It is also provided that no bill of sale can be recorded unless the
interest of the grantor in the vessel is stated, also the interest sold,
nor unless the bill has been acknowledged before a notary public or
other officer authorized to take acknowledgements. In the case of a
change in the port of documentation, no bill of sale may be recorded at
the new port unless a certified copy of the record of the vessel at the
former port is furnished by the collector of that port.
III. PREFERRED MORTGAGES UNDER MERCHANT MARINE ACT
The law in regard to ship mortgages is highly technical and reference
only will be made here to the general provisions of the Merchant Marine
Act which makes far-reaching changes in the existing system in an effort
to give added value to mortgage security on a ship, a form of security
which heretofore has been of very limited value on account of the
subordination of the mortgage, which is not a maritime contract, to all
maritime liens, whether arising out of contract or tort.
The present law gives to a duly recorded preferred mortgage priority
except as to (1) liens arising prior to the recording of a mortgage in
strict conformity to the provisions of the act; (2) liens for damages
arising out of tort; (3) liens for wages of stevedores when employed
directly by the owner, operator, master, ship's husband or agent of the
vessel; (4) liens for wages of the crew of the vessel; (5) liens for
general average; (6) liens for salvage, including contract salvage; and
(7) court costs and expenses.
If a mortgage covers a ship of over 200 gross tons the material facts
regarding it must be endorsed on the ship's papers. There must also be
filed an affidavit that the mortgage was made in good faith, without the
intent to delay or defraud. It must appear that the mortgagee is a
citizen of the United States and that the mortgage does not stipulate
that the mortgagee waives its preferred status. If the mortgage includes
property other than a vessel it must provide for the separate discharge
of such property by the payment of a specified amount, and if it
includes more than one vessel it must similarly provide for the separate
discharge of each vessel on the payment of a specified amount, in
default of which, the court, in a suit on the mortgage, is to determine
the proportionate charge.
Two certified copies of every preferred mortgage are to be delivered by
the collector to the mortgagor, who is required to use due diligence to
retain one copy on board the vessel, and to cause it and the ship's
documents to be exhibited by the master to any person having business
with the vessel which may give rise to a maritime lien or to the sale of
the vessel. Upon request, the master is required to exhibit to such
person the ship's documents and this copy of the mortgage. Upon request
of the mortgagee, the mortgagor is required to disclose in writing,
before the execution of any preferred mortgage, the existence of any
maritime lien prior to the mortgage, that is known to the mortgagor,
and, without the consent of the mortgagee, the mortgagor is forbidden,
after the execution of the mortgage and before the mortgagee has had
reasonable time to record the mortgage and have the necessary
endorsements made, to incur any obligations creating liens on the vessel
other than those for wages, for general average or for salvage.
The law permits the preferred mortgage to bear any rate of interest
agreed to by the parties. It provides severe penalties upon the master
for failing to exhibit the ship's documents or the copy of the mortgage,
when demanded, and permits local inspectors to suspend or cancel the
master's license for any such violation. As to the mortgagor who fails
to make disclosure of liens already referred to, or who incurs new liens
with attempt to defraud, the law provides a maximum fine of $1,000 and
imprisonment for two years, and makes the mortgage then immediately
payable. It also subjects the collectors of customs and the mortgagor to
personal liability for loss occasioned by their failure to perform their
duties under the act and opens the federal courts to such suits.
Under the same act jurisdiction of all suits to foreclose a preferred
mortgage is vested exclusively in the District Courts of the United
States. Authority is also given to bring suit _in personam_ in the
admiralty, in the United States District Courts, against the mortgagor.
The surrender of the documents of mortgaged vessels without the approval
of the Shipping Board is prohibited, and the Board is directed to
withhold such approval unless the mortgagee consents to the surrender.
By resolution of the Board this law is interpreted as not applying to
cases in which owners merely renew licenses or change documents incident
to change of trade and where the ownership remains the same.
Elaborate provisions are also to be found covering the formal procedure
in case of sales of mortgaged vessels, together with a provision that no
rights under a mortgage shall be assigned to any person not a citizen of
the United States without the approval of the Board, and that no vessel
shall be sold in a suit in the admiralty to any person who is not a
citizen.
The legality of the provisions conferring upon the federal courts the
right to enforce mortgage liens which are of a nonmaritime character, is
much debated and must await final decision by the Supreme Court. If the
court should decide against the legality of these provisions serious and
difficult questions will be presented as to whether the act as it now
stands will be effective to give preferred status to such a mortgage,
under the radically different procedure which must then be resorted to.
The act also revises the law on the subject of the creation of maritime
liens for necessaries. It provides that persons furnishing repairs,
supplies, towage, etc., on order of the owner or an authorized agent
shall have a maritime lien on the vessel without being required to prove
the credit was given to the vessel; defines the persons who are to be
presumed to have authority from the owner to procure repairs, etc.,
including the agents of a charterer; and permits the waiving of such
liens by those furnishing the supplies or services, subject to certain
existing specified rules of law.
IV. CHANGE OF NAME
The American law has always been very strict in regard to changing the
names of vessels. Such change can only be made by the Commissioner of
Navigation, and if made _by_ the master or owner or agent of the vessel
subjects the vessel to forfeiture. Since 1881 the Secretary of the
Treasury, and later, the Commissioner of Navigation, has been authorized
to permit the change of names of vessels "duly enrolled and found
seaworthy and free from debt." Under this law it became necessary to
secure a special act of Congress, which was frequently done, to change
the name of a mortgaged vessel. To cure this defect the law of February
19, 1920, which took effect thirty days after its passage, provides for
a change of name _by_ the Commissioner of Navigation upon compliance
with regulations issued by him.
All that is required in the first instance is a duplicate application by
the owner, addressed to the Commissioner of Navigation and forwarded to
him through the Collector of Customs at the home port of the vessel,
which is required to state the change desired, the reasons in support of
it, place of build, official number, rig, gross tonnage, and the owner's
name. It must also include a detailed list of liens of record from all
custom houses where the vessel has been previously documented, together
with the consent in writing of the mortgagee or other beneficiary under
each lien to the change desired. To this the Collector of Customs,
forwarding the application, must add his certificate as to liens on
record in his office, and must also state the date and place of last
inspection, a requirement which presupposes the presentation to him of
satisfactory evidence of the vessel's inspection, that is, either the
original certificate, or a certified copy of it, or a statement from the
office of the Commissioner of Navigation at Washington that such a
certificate is outstanding. In the case of vessels not usually
inspected, as, for instance, barges, inspectors are authorized to make
special examinations at the owner's expense and to furnish a certificate
of the seaworthiness of the vessel, the object of course being to
prevent old and unseaworthy vessels from concealing their condition and
antiquity by a change of name.
After the application has been passed by the Commissioner and permission
has been granted, it is required that the change shall be published in a
daily or weekly paper nearest to the port of documentation in at least
four consecutive issues, the cost of procuring the evidence and of
publication to be paid by the applicant. The permission for change is
not effective until this fee is paid. Upon its payment the issuance of a
new document is then required, which presupposes the production, as in
other cases, of the owner's affidavit, and of the master's affidavit, as
already explained.
The Collector thereupon records the change of name in his prescribed
reports and the transaction is completed.
Vessels formerly documented and which have been sold to the United
States and resold to citizens, must be documented under the old name and
official number, but vessels never before documented and sold by the
United States to citizens, may be redocumented under any name selected
that is approved by the commissioner.
In forwarding the application for change of name the Collector of
Customs is required to submit his recommendations giving any reasons for
or against the change. The usual reasons in support of a change are a
desire on the part of the company to carry out some established policy
in the naming of its vessels, or a desire to shorten or lengthen a name,
as the case may be.
The fee required is prescribed by law upon a sliding scale from $10 to
$100, according to gross tonnage, the former figure being for vessels of
99 gross tons and under, and the latter for vessels of 5,000 gross tons
and over.
V. ENTRY AND CLEARANCE
Whether or not a vessel is required to enter and clear depends, first,
upon whether she is registered, and second, upon her tonnage and the
service in which she is engaged.
_All_ vessels under _registry_ (as distinguished from vessels enrolled
or licensed) are required to enter and clear at every port, except when
bound from a point in one state to that of an _adjoining_ state.
If _not_ registered the question depends in the first instance upon the
size of the vessel. The law, as inherited from the early days, when
smuggling was frequent in small vessels, and it was considered important
to keep them under close supervision, makes a distinction between
vessels under twenty tons and those above that tonnage.
If _under_ 20 tons (and properly documented, that is licensed) and laden
wholly with American goods, or with foreign goods in packages as
imported not exceeding $400 in value, or of aggregate value not over
$800, they may trade from a customs district in one state to a customs
district in the same or an adjoining state, without entering or
clearing. But if _over_ twenty tons, such vessels are permitted to
trade, without entering or clearing, from one customs district in the
same Great District to another in the same Great District, or from a
State in one Great District to an adjoining State in another Great
District: Except as thus provided _all_ vessels engaged in the coasting
trade must enter and clear on their arrival at, or departure from, each
port.
The five Great Districts referred to have been defined as follows and
should not be confused with the customs collection districts:--
1. Atlantic coast from Canada to Mexico.
2. Porto Rico.
3. Pacific Coast.
4. Alaska.
5. Hawaii.
It is worth noting, however, that enrolled vessels which are not
_required_ to enter and clear _may_ do so, if they desire for any
purpose to have a record of their entrance and their clearance. This
might occur in the case of a vessel intending to undergo extensive
repairs and which might desire such a record to secure a rebate of
insurance premium.
In the case of vessels in the foreign trade or coming from one Great
District into another, and which are required to be registered, the law
requires the surrender and filing of manifests, bill of health and crew
list. When these formalities have been complied with, the vessel is
posted in the Custom House as entered. The manifest is produced to the
boarding officer and includes the original manifest issued at the
foreign port as well as a certified copy. The crew list is the list
issued by the Collector of the last port of clearance from the United
States, the Collector having retained the original sworn to by the
master, and having furnished the master with a certified copy. Bills of
health should have been secured from the American consular office at the
last port of touch, but bills are not required from ports where there is
no such officer. The ship's register is deposited in the Custom House
and obtained before clearance.
In the case of the clearance of a vessel in the coastwise trade, and
which is under registry, or which for any other reason desires a
clearance, the master is required to produce a coasting manifest to the
Collector. Upon making affidavit to this document the necessary
coastwise clearance and permit is issued. If, however, as in the case of
tugs, there is no cargo to be manifested, a coastwise permit is issued
upon affidavit by the master that the vessel contains no cargo whatever
other than sea stores.
In the case of vessels bound to foreign ports the documents take the
form of the customary foreign manifest, which is followed by the
official clearance in the form familiar to the export trade for a
hundred years.
VI. SHIPPING ARTICLES
Shipping articles are required in both the foreign and in the coastwise
trade, but with certain important differences.
In the _foreign_ trade the articles, which must be in government form,
are required to be signed before a Shipping Commissioner. This, however,
does not apply to trade between the United States and the British North
American possessions and the West Indies, and Mexico. The nature of
these articles is sufficiently familiar to require no comment. Generally
speaking the articles must contain the following particulars:--
1. The nature and, as far as practicable, the duration of the intended
voyage or engagement, and the port or country at which the voyage is to
be terminated.
2. The number and description of the crew, specifying their respective
employments.
3. The time at which each seaman is to be on board to begin work.
4. The capacity in which each seaman is to serve.
5. The amount of wages which each seaman is to receive.
6. A scale of the provisions which are to be furnished each seaman.
7. Any regulations as to conduct on board and as to fines, short
allowances of provisions, or other lawful punishments for misconduct,
which may be sanctioned by Congress or authorized by the Secretary of
Commerce, not contrary to or not otherwise provided for by law, which
the parties agree to adopt.
8. Any stipulations in reference to allotment of wages or other matters
not contrary to law. In 1898 this provision was repealed so far as it
relates to allotments in trade between the United States, Dominion of
Canada, Newfoundland, the West Indies and Mexico, and the coasting
trade of the United States, except between Atlantic and Pacific ports.
In the _coasting_ trade the law merely requires that every _master_ of a
vessel of fifty tons or over, bound from a port in one State to a port
in any other than a port in an adjoining State (with the exception of
voyages from the Atlantic to Pacific ports, which are included under
foreign trade) shall make an _agreement in writing_ with his seamen
declaring the voyage or term of time for which the seaman is shipped.
This agreement _may_ be signed before a Shipping Commissioner, but this
is not compulsory. The agreement required in the coasting trade requires
only the voyage, or term of time for which the seaman is shipped.
Question has been raised as to whether the requirement as to written
articles applies to cases where the "adjoining State" is reached by a
waterway running through other States, as, for instance, a voyage from
New York to Philadelphia. It seems clear, however, that the law should
be strictly interpreted, according to its terms, and that articles would
not be required on such a voyage.
In neither case does the law provide a limit in the matter of length of
voyage. In England shipping articles are frequently for long periods of
a year or more. Our practice is more limited. Clauses for one or more
continuous voyages are commonly found with a provision for the
termination of the contract by authority of the master, or any member of
the crew, upon twenty-four hours' notice.
A provision of law which sometimes occasions difficulty is that which
permits a seaman discharged "without fault on his part justifying such
discharge" and without his consent, before the commencement of the
voyage or before one month's wages are earned, to receive a compensation
of one month's wages. This question, like all other questions relating
to wages, comes up in the first instance before a Shipping Commissioner,
and in the hands of a competent commissioner there should seldom be any
difficulty in determining whether the discharge was or was not due to
the fault of the seaman or to his inability properly to perform his
duties.
The right to overtime is not provided for by statute, and before the war
was not generally recognized. In July, 1919, however, an informal
agreement was made between the Shipping Board and the steamship
association and the unions, under which this right to claim overtime is
recognized, provided it is covered by special contract.
VII. LICENSING AND QUALIFICATIONS OF OFFICERS
The law requires that masters, chief mates, second and third mates, if
in charge of a watch, engineers, and pilots of all steam vessels, and
the masters of sailing vessels of over 700 gross tons, and of other
vessels over 100 gross tons carrying passengers for hire, shall be
licensed and classified by the boards of local inspectors, and imposes a
penalty of $100 for employing an unlicensed officer or for an unlicensed
person to serve as an officer. These several boards of inspectors are
under the direction of a Supervising Inspector General appointed by the
President, and who is at the head of a Steamboat Inspection Service, and
are further under the supervision of ten supervising inspectors, to each
of whom is assigned general supervision of the work of inspection in a
particular district. The law imposes large discretion upon the local
inspectors in the examination and licensing of officers, limiting the
licenses to a period of five years, and giving the inspectors authority
to suspend licenses on proof of bad conduct, intemperate habits,
incapacity, inattention to duties or a willful violation of inspection
laws.
It is specially forbidden for any state or municipal government to
impose on pilots any obligation to secure a license in addition to that
issued by the Federal government.
One of the most important functions of the local inspectors is that
which concerns the investigation of collisions and complaints of
incompetency or misconduct committed by licensed officers. For this
purpose the inspectors have power to summon the witnesses, to administer
oaths and, upon hearing had after reasonable notice in writing to the
alleged delinquent, to suspend or to revoke his license, if satisfied
that he has been guilty of misbehavior, negligence or unskillfulness, or
has endangered life. Appeals from the decision of the local inspectors
may be made to the supervising inspector.
Where, however, the supervising or local inspector finds a licensed
officer on board a vessel under the influence of liquor to such an
extent as to unfit him for duty, or when a licensed officer uses abusive
language to an officer or insults him while on duty, the local inspector
is required to revoke the license of the offending officer without
further trial or investigation.
The rules of the board classify vessels according to the general
character of their trade, as
1. Ocean and coastwise.
2. Lakes, bays and sounds.
3. Rivers.
Qualifications for the officers properly vary according to these three
classes of service, to which is added a number of other special
classifications, as, for instance, ferry steamers on rivers, passenger
barges on rivers, etc.; or in the case of engineers, as, for instance,
condensing river steamer and noncondensing river steamer. These
requirements are set forth in full detail in the Regulations of the
Steamboat Inspection Service, with which all officers should be familiar.
Certain minimum requirements in the case of deck officers have been
prescribed by statute, the latest law being that of March 11, 1918,
which with certain minor exceptions, provides for one licensed master
for every vessel; for vessels 1,000 gross tons or over, three licensed
mates, and for vessels between 200 and 1,000 tons, two licensed mates;
for vessels between 100 and 200 tons, one licensed mate. The inspectors,
however, are permitted to increase these requirements if they consider
the vessel not sufficiently manned for safe navigation.
The same law of 1918 prohibits officers from assuming deck watches on
leaving port unless they have had at least six hours off duty within the
twelve hours preceding sailing; and also prohibits licensed officers on
both ocean and coastwise vessels from doing duty exceeding nine hours of
any twenty-four while in port, or more than twelve hours of any
twenty-four while at sea, except in case of emergency endangering life
or property.
VIII. QUALIFICATIONS OF SEAMEN
Before the passage of the Seamen's Act in 1915, there were no statutory
requirements as to the ability or experience of the crew, other than the
general requirement that the vessel should be properly manned. This act,
however, presents a body of highly stringent requirements. Its principal
requirements may be summarized as follows:
=Age.=--In the matter of age the act provides that in the deck
department of all vessels of more than 100 tons gross, except those
navigating rivers exclusively and the smaller inland lakes, there shall
be a certain proportion of seamen with the rating of able seamen, a
classification which is limited to those of nineteen years of age. The
lack of supply of able seamen has made it practically impossible to
enforce this requirement.
=Service and Physical Qualification.=--The act requires the physical
examination of able seamen in the deck department. It also divides able
seamen into two classes, those engaged in vessels operating on the high
seas and those engaged on the Great Lakes, smaller lakes, bays and
sounds. For the former three years' service at sea or on the Great
Lakes, etc., and an examination as to general physical condition, is
required, or one year's experience on deck at sea or on the Great Lakes,
etc., together with an oral examination on seamanship and for the latter
eighteen months' experience at sea or on the Lakes.
=Lifeboat Men.=--The Seamen's Act, in connection with its elaborate
provisions for the equipment of vessels with life-saving appliances,
lays down the distribution of a specially designated class of
certificated seamen known as lifeboat men to the various lifeboats and
rafts required to be carried by a vessel, leaving the designation of the
individuals to the discretion of the master. To secure a certificate as
lifeboat man, a seaman is required to prove to the satisfaction of the
inspection officers, or other officers designated for the purpose of
issuing certificates, that he has been trained in all the operations in
connection with launching lifeboats and the use of oars, is acquainted
with the practical handling of the boats themselves, and is capable of
understanding and answering the orders relative to lifeboat service.
=Language.=--Perhaps the most disputed proviso of the Seamen's Act is
that which requires that not less than 75 per cent. of the crew of the
vessel must be able to understand any order given by the officer--that
is, the necessary orders given to the members of the crew in each
department in the performance of their particular duties. This law,
however, does not require the use of any particular language on the part
of officers and crew of the vessel, nor does it require an
English-speaking crew, nor that the members of the crew in one
department of the vessel should understand orders given in another
department.
IX. NATIONALITY OF OFFICERS AND CREW
=Officers.=--Since 1792 our laws have required that the officers of
_all_ vessels of the United States who are in charge of a watch,
including pilots, shall be citizens. This of course includes tugs,
barges and all other vessels which are documented under our laws. The
term "officer" includes the Chief Engineer and each Assistant Engineer
in charge of the watch. The only exception to this rule is that which
was made by the Ship Registry Act of 1914, and the executive order based
upon it, under which foreign-built ships admitted to American registry
under that act are permitted to retain their watch officers, without
regard to citizenship, for a term of seven years, provided that after
two years any vacancy must be filled by a citizen of the United States.
=Crew.=--There are no provisions or restrictions as to the nationality
of the crew on vessels of the United States.
X. WAGES
The Seamen's Act requires that on _coasting_ voyages, wages shall be
paid to every seaman within two days after the termination of the
agreement under which he shipped, or at the time of his discharge if he
should be discharged before the expiration of the agreement; and that on
_foreign_ voyages wages shall be paid within twenty-four hours after the
discharge of the cargo, or within four days after the discharge of the
seaman, whichever shall first happen. The law further provides that a
seaman is entitled in every case to be paid at the time of his discharge
a sum equal to one-third of the balance of wages then due him. This
proviso, however, is seldom observed in practice, nor is it insisted
upon, as it would in general be impracticable for wages to be paid at
the moment of discharge.
The question of payment of a certain portion of wages on demand, which
is also covered by the Seamen's Act and earlier acts, has received
considerable revision in the Merchant Marine Act. Under this law it is
provided that _every_ seaman on a vessel of the United States may
receive on demand of the master one-half of the balance of his wages
earned at every port where the vessel loads or delivers cargo. This
protection may not be waived by contract, but is subject to the proviso
that the demand shall not be made before the expiration of, nor oftener
than once in, five days, nor more than once in the same harbor. Failure
on the part of the master to comply with this demand releases the seaman
from his contract and entitles him to full payment of wages earned. At
the end of the voyage the seaman is entitled to the remainder of his
wages according to the provisions of the Seamen's Act, which also
provides that notwithstanding the release, which is required to be
signed before the Shipping Commissioner at the time of the seaman's
discharge, the proper court may set aside the release upon good cause
shown. The provision of the Merchant Marine Act is specially made
applicable to the case of seamen on foreign vessels while in the harbors
of the United States, and the courts of the United States are opened to
such seamen for its enforcement.
=Advances.=--The law in regard to advances to seamen is also slightly
amended by the Merchant Marine Act, which makes it unlawful to pay wages
in advance of the time when actually earned, or to pay such advance
wages or make any order or note or other evidence of indebtedness for
the same to any other person, or to pay any other person for the
shipment of seamen when payment is deducted or is to be deducted from
the seaman's wages. Payment of such advance wages or allotment whether
made within or without the United States does not absolve the vessel
from libel and is no defense to a libel suit. This act also forbids any
person to demand or receive from any seaman any remuneration whatever
for providing him employment.
Seamen discharged by a consul in a foreign port on account of the voyage
being continued contrary to agreement, or unseaworthiness of vessel, or
bad provisions, or cruel treatment, are entitled to one month's extra
wages and transportation to the United States. Seamen discharged at a
foreign port at the request of the master, and not on account of neglect
of duty, are entitled to employment on a vessel agreed to by the seaman
and to one month's extra wages.
Seamen discharged before commencement of voyage without fault, are
entitled to one month's additional wages, and all seamen are entitled to
two days' extra wages for each day's delay in payment at end of voyage.
The laws also contain elaborate and beneficial provisions for the
recovery of their wages by seamen through proceedings in the courts.
Seamen are disqualified by law from signing away their lien upon a
vessel for wages; as also their rights to participate in salvage. It is
to be noted that the seaman's right to a share in salvage, in the case
of the saving of human life, on the part of a seaman who has taken part
in the services rendered, is expressly conferred and protected by
statute. Failure, unless unavoidable, to give help to persons at sea, in
danger of being lost, is also made a serious criminal offense.
XI. WATCH AND WATCH AND WORK-DAY
Before the passage of the Seamen's Act there were no legal requirements
as to hours of labor at sea, though long established custom had divided
the deck crew into two watches and the engine crew into three watches,
with certain variations in this plan in special trades. Under the
Seamen's Act it is now provided that on merchant vessels of over 100
tons, except those engaged in river and harbor navigation, the sailors
must be divided into at least two watches, and the firemen, oilers and
water tenders into at least three watches, which are to be kept on duty
successively for the performance of ordinary work, incident to the
sailing and management of the vessel.
Seamen may not be shipped to work alternately in the fireroom and on
deck, nor may those shipped to work on deck be shifted to the fireroom,
or vice versa, subject to cases of emergency, in the judgment of the
master or other officer. These provisions, however, do not prohibit the
master or other officers from requiring the whole or any part of the
crew to participate in fire, lifeboat and other drills when the vessel
is in a safe harbor nine hours, inclusive of the anchor watch, which is
a legal day, but in such case no seaman may be required to do
unnecessary work on Sundays or on New Year's, Fourth of July, Labor Day,
Thanksgiving Day and Christmas, provided that this does not prevent the
dispatch of the vessel on regular schedule or when ready to proceed on
her voyage.
XII. PROVISIONS FOR CREW
=Sleeping Quarters.=--The Seamen's Act provides that on all vessels
(except yachts, pilot boats and vessels of less than 100 tons) whose
construction is thereafter begun, there shall be a crew space of not
more than 100 cubic feet or not less than 16 square feet for each seaman
lodged therein; also that each seaman shall have a separate berth, and
that not more than one berth shall be placed above another; that the
seamen's quarters shall be properly lighted, drained, heated,
ventilated, constructed and protected and shut off; and that crew space
shall be kept free from goods and stores. This law increased the crew
quarters from 72 cubic feet and 12 square feet in the case of
steamships, and from 100 cubic feet in the case of sailing vessels. It
is noted that the Seamen's Act applies to _all_ merchant vessels of the
United States, in this respect differing from the earlier acts which
applied only to seagoing vessels.
=Washing Places.=--The Seamen's Act requires that all merchant vessels
whose construction is begun after its passage, having more than ten men
on deck, shall have a light, clean and properly ventilated washing
place, at least one washing outfit for every two men of the watch, and a
separate washing place for the fire-room and engine-room men, if more
than ten in number, which shall be large enough to accommodate at least
one-sixth of them at the same time, and shall have hot and cold water
supply and a sufficient number of wash basins, sinks and shower baths.