Inasmuch as barratry must be directed against or in fraud of the owner,

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.

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