Abbildungen der Seite

loss of anchor, and damage by running ashore to avoid a greater peril from storms or heavy seas, from the attack of an enemy, or from endeavours to escape capture. Again, when a vessel runs foul of another, if neither is particularly to blame, each owner must bear his own loss, which is recoverable from the underwriters. The amount of damage must be thirty shillings upon the whole value, to render the underwriters liable for the loss; unless it may arise from the stranding of the vessel. The claim of freight, as it is generally specially mentioned in the policy, is necessarily left open, as the interest may appear. In the event of the goods being lost, and the freight irrecoverable, the underwriters have to make it good, or to bear their proportion when the freight has been insured.”

BARRATRY is generally understood to be a fraudulent act of the master or mariners, committed to the prejudice of the owners of the •ships. Abbot says, “ To our definition of barratry, it is not essential that the act should be done by the master for his own benefit, or with the intent of injuring his owners.” Thus, if he sail out of port without paying port duties, whereby the goods are forfeited, lost, or spoiled; or if he cruise in quest of prizes without proper authority, and contrary to the orders of his owners; or if he disregard an embargo, or attempt a breach of blockade, or be concerned in smuggling, or connive at smuggling by his mariners; or wilfully delay, or deviate, or run away with the ship, and sell her, or part of her cargo, he is guilty of barratry: and where a master has general instructions to make the best purchases with despatch, it was considered that such instructions must mean legal purchases and legal despatch, and that going into an enemy's settlement to trade, although his cargo could be more speedily and cheaply completed there (the ship being seized and confiscated on account of it), was barratry. Nor was it thought to make any difference that he intended thereby to promote his owners' interests. It is not for him to judge in cases not entrusted to his disc ion, or to suppose that he is not breaking the trust reposed in him, but acting meritoriously when he endeavours to advance the interests of his owners by means which the law forbids, and which his owners must be taken to have forbidden ; not only from what ought to be, and therefore must be presumed to have been, their own sense of public duty, but also from a consideration of the risk and loss likely to follow from the use of such means. But an error in judgment in matters entrusted to his discretion, and not contrary to law, admits of a different consideration; and accordingly, when in an action on a policy of insurance, the loss being alleged by barratry of the master, it appeared that his ship having sprung a leak, he took her into port, and before any survey made, broke up her ceiling and bows with bows, thereby injur

ing and weakening her, Lord Ellenborough, addressing the counsel for the plaintiff, said, “ To constitute barratry, which is a crime, the captain must be proved to have acted against his better judgment; as the case stands, there is a whole ocean between you and barratry.”

Barratry may be committed with the privity of the freighters against the owners, or by the owners or master against the general freighters. It would seem that one part owner, being master, may commit barratry against another; but if the master be sole owner, he cannot commit barratry against himself.

BILLS OF LADING are instruments a Captain signs as an acknowledgment of the goods being received on board; and after signing this he is liable for every clause as signed for. It is, therefore, most essential that a Captain should be extremely particular in putting his name to any such document unless he is quite positive that the goods are on board, and unless he knows the exact contents of the package; the clause is generally inserted by him, "contents unknown;" and in fragile articles, etc., “not accountable for breakage and leakage.” For forms of Bills of Lading, and Bills of Lading Act, vide Sections iv. and vi.

BIRTHS AND DEATHS AT SEA.—The Act, 6 & 7 Wm. 4, c. 86, s. 21, states, that the commanding officer on board of whose vessel a child is born, shall make a minute of the several particulars relating thereto.

When a passenger or sailor dies during the voyage, and no one present is legally entitled to take possession of the effects, the master must make an inventory, witnessed by some other passenger or seaman, or by the mate. Should they not be claimed within a reasonable time, the master may sell the same, but is always liable to be called upon for the amount, and to show the sale was for the value of the articles disposed of. In the case where a seaman dies abroad, or on board, we beg to refer the reader to the Consular Instructions, 1855.

BLOCKADE is the stopping up the traffic from a port by an enemy's fleet, and it is throughout the world acknowledged that the attempt to break such Blockade is the forfeiture or capture of the ship, whether she be a vessel belonging to the State of the blockading squadron, or of neutral nations. It is, however, difficult to determine a cognizance on the part of the captain of the vessel of the state of such Blockade, and an innocent person not having had any idea of such Blockade, and not being warned off by the blockading squadron, cannot be considered a lawful prize.

Dr. Deane, in a very clever work, recently published on the subject, defines a Blockade as follows:

1stly. That the Blockade should offer no obstruction to a neutral port; that is, that in blockading a number of the enemy's Ports, by the

stoppage of a river or channel in which there happened to be a neutral Port, would be considered a violation of the law of nations.

2ndly. That once the Blockade has been established, no ship whatever should be allowed to enter; and if the Blockade is not so enforced, it cannot be insisted upon by a Prize Court. Vessels of neutral nations in ballast, or with cargo, laden before the fact of the Blockade has been established, may come out.

3rdly. That the sailing or prosecuting a voyage to a blockaded Port, after the knowledge of the existence of such Blockade, and with an intention to violate such Blockade, is an offence punishable by confiscation.

4thly. That it is for the Commanding Officer of the blockading squadron to board any neutral vessel, warn her that such a Blockade has been established, and write a notice to that effect upon the ship's papers; but, at the same time, if there is reason to suppose, or sufficient proof that such vessel at the Port of her sailing, has been apprised of such Blockade, and having attempted to break it, shall be liable to confiscation.

5thly. That any vessel found coming out of the blockaded Port having any goods on board, and having entered into such Port during the existence or in breach of such Blockade, she shall be seized and sent in for adjudication.

6thly. As regards free ships making free goods, Dr. Deane adds, that inquiries must still be made, and the ship's papers be referred to and examined in order to ascertain her nationality, her cargo, whether contraband or not, her destination and port of clearance, as well as the character and number of her passengers.

In respect to the papers found on board a ship, any suspicious letter found among them having reference to her destination to an ememy's Port, would be sufficient cause for her detention, and even condemnation. As regards what is contraband of war,* it is a difficult thing to determine what would condemn a ship in respect thereof. The transportation of military personages and dispatches is prohibited, and would come under the category of condemnation.

BOTTOMRY is an hypothecation of a ship for the payment of the debts of a vessel, which may have been incurred by reason of her having been compelled to put into a foreign port by distress to repair, and where the master, not having sufficient funds at hand to defray the same, and in the absence of being able to raise money on his own credit or on that of the owners, gives the bottom of the ship as a security for the money lent. A case of necessity, to enable the master

* Vide under head, “Contraband of War."

to carry the goods to their destination, ought to be established, to justify him taking a bottomry bond on his vessel, as it would not be recognisable in law were he to hypothecate his vessel for private expenses ; again, he is justified in taking a bottomry bond to pay the crew their wages, should the owner not have remitted him money for that purpose, but this would not be justifiable before he came to the port where the cargo is discharged. It must, however, be understood that he could not do so for wages of antecedent voyages, as such ought to have been satisfied prior to the vessel leaving the port where she took her cargo in. For form of Bottomry Bond vide Section vi., and for further particulars, vide ss. 22 to 32, Instructions to Consuls, pages 45 to 51.

CAPTURE.-According to the legal signification of capture, the same is constituted by the taking of the vessel, or seizing the ship in time of war; which capture, however, must be legalised and sanctioned by a sentence of condemnation in a Court of the capturing power, acknowledged according to the law of nations. Abbot says: “ That there appears no settled and uniform rule established in practice among nations, as to the precise period at which property is divested by capture. It is, however, generally understood to take place twentyfour hours after possession.” Capture, however, must be conducted on very strict principles, as in the recent decision of the Right Honourable Pemberton Leigh in the case of the Ostsee, he has decreed, and very justly, that officers capturing vessels without sufficient cause, or in ignorance or misunderstanding of their instructions, are liable to be called upon to pay the costs for the detention of the vessel captured. In this theory he is undoubtedly right, as the encouragement held out by prize money might easily cause, if such was not so, the detention of many vessels from which it was thought prize money might possibly be obtained. It has generally been determined and confirmed by Lords Stowell and Tenterden, that by the general practice of nations a sentence of condemnation is at present deemed necessary, and a neutral purchaser in Europe during war looks to a legal sentence of condemnation as one of the title deeds of a ship, if he buys the vessel. Whether a purchase of a condemned ship by a neutral, and its subsequent capture under the protection of a neutral flag, is likely to transfer the title, is a matter open to a great deal of controversy, although it may be generally supposed that belligerent powers would hold sacred the laws of nations in respect to the property of neutrals. A legal condemnation of a captured vessel cannot be effected by a Consul when the vessel is carried into a neutral port, and Lord Stowell was even of opinion that a condemnation could not be decreed in a proper Court of the belligerent power, when the ship was in a neutral port, as it would be contrary to the law of nations. Of course it is

So many


clearly understood that capture by pirates or letters of marque is not recognised; and, in fact, the first is never countenanced as capture, nor does it divest the property from its original owner. lessons can be taken from the Judge's decision in the case of the Ostsee that we give it in full.

The Mecklenburg Ship Ostsee.*_At the Judicial Committee of the Privy Council.—Present: The Right Hon. T. Pemberton Leigh, the Right Hon. Sir Edward Ryan, the Right Hon. Sir John Patteson, and the Right Hon. Sir John Dodson-judgment was given in the following important case:

On the 1st of June, 1854, the ship Ostsee, sailing under the Mecklenburg flag, on her voyage from Cronstadt to Elsinore, was seized by Her Majesty's ship Alban, under the command of Captain Otter, and sent to London for adjudication as prize. Upon the ship's papers, and the examination of the master, the mate, and another of the crew, the usual interrogatories, there appeared to be no ground for condemnation; and with the consent of the captors on the 19th August, 1854, an interlocutory decree was pronounced, by which the ship and cargo were restored to the claimants, but without costs and damages. From so much of the decree as refuses costs and damages to the claimants, the present appeal was brought.

The Right Hon. T. Pemberton Leigh delivered the judgment of the Court. On the 1st June, 1854, the ship Ostsee, sailing under the Mecklenburg flag, on her voyage from Cronstadt to Elsinore, was seized by Her Majesty's ship Alban, under the command of Captain Otter, and sent to London for adjudication as prize. Upon the ship's papers, and the examination of the master, the mate, and another of the crew, on the usual interrogatories, there appeared to be no ground for condemnation; and with the consent of the captors, on the 19th August, 1854, an interlocutory decree was pronounced, by which the ship and cargo were restored to the claimants, but without costs and damages. From so much of the decree as refuses costs and damages to the claimants, the present appeal is brought. It is agreed on all hands that the restitution of a ship and cargo may be attended, according to the circumstances of the case, with any of the following consequences :-1. The claimants may be ordered to pay

the captors their costs and expenses; or, 2. The restitution may be, as in this case, simple restitution, without costs, or expenses, or damages, to either party; or, 3. The captors may be ordered to pay costs and damages to the claimants. These provisions seem well adapted to meet the various circumstances, not ultimately affording ground of condemnation, under which captures may take place. A ship may by

* Shipping and Mercantile Gazette Report.

« ZurückWeiter »