the port will rule the period of lay-days and demurrage, or otherwise reasonable damages will be awarded to the shipowners, in fixing which the time necessary for loading and unloading will be considered; but in this case the law so far differs from that where there is a stipulation, that the merchant will not be liable" if the delay be occasioned by the crowded state of the docks, nor where the customary mode of delivery of the particular article requires more time than in ordinary delivery. It will be only where the difference in the requisite time of delivery is to be ascribed to the shipper or consignee that demurrage will be due."1

SECT. 6.-Responsibility of Owners for Safety of Goods.

It is a general rule that shipowners are liable for all accidents happening to goods under their charge, not caused "by the act of God and the king's enemies." In the bill of lading, the exception generally extends to "the act of God, the king's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigations of what nature and kind soever." Fire is expressly excepted by statute. There is no liability for gold, silver, watches, and jewels abstracted through theft or robbery, unless they be entered in the bill of lading, or their nature, quality, and value be specially intimated in writing.3 Shipowners are not liable beyond the value of the ship and freight for embezzlement by persons in their employment or others, or for positive acts, or negligence, occasioning injury to the cargo without their privity.

Seaworthiness, &c.-There are certain obligations on the part of the owners, a departure from which renders them liable for all the consequences which may ensue. The ship must be seaworthy, and fit in all respects to encounter the ordinary perils of the voyage, having a skilful master and able mariners. A defect even unknown, and which has escaped the observation of a skilful surveyor, will occasion liability. So also if the defect should not become palpable till after the voyage has commenced, as where a split broke out in the pump during a voyage, and a box of silk ware near it was damaged by the water. The vessel must be fit for receiving on board and protecting the particular descrip

1 B. C. i. 577, 578. See Holt, 327.-2 26 Geo. III. c. 86, § 2.-3 Ibid. §3.-47 Geo. II. c. 15. 26 Geo. III. c. 86, § 1. 53 Geo. III. c. 159, § 1. B. C. i. 550. Abbot, 340, et seq.—6 Lawrie v. Angus, 7th November 1677, M. 10107.

tion of cargo. She must not be overloaded, must be furnished with the proper manifest and other papers, and must not be endangered by having contraband goods or false papers on board. In all those parts of the voyage where a pilot is employed by regulation or usage, termed "a pilot's fair-way," a pilot must be employed. It is sufficient that the pilot engaged be one licensed by the ordinary custom of the place. His proceedings must not be controlled by the master, while, on the other hand, the presence of the pilot does not absolve the master from the consequences of injury caused by his own carelessness or want of skill.3

Convoy. In time of war there is generally a stipulation that the vessel is to sail with Convoy, and should there be a legislative provision to prohibit vessels from sailing without convoy, the obligation is understood, without being expressed in the contract. The obligation is to join at the place of rendezvous, and if capture take place on the way thither, the owners are not responsible. After the vessel has joined the convoy, the master is furnished with sailing instructions by the commander of the naval force, and the possession of these instructions will form a part of the evidence that he has endeavoured to abide by the convoy.5

The care of the master and the responsibility of the owners do not terminate with what may be strictly termed the voyage. The master must report the ship and crew, and deliver the manifest and other papers. The vessel must be safely secured, and proper measures must be taken for the landing of the cargo. So when it is necessary to employ boats, the responsibility of the shipowners continues till the cargo is landed from them. But previous agreement or the custom of the port may terminate the responsibility before the goods are landed; and so, where it is the custom to discharge into lighters, the responsibility terminates when the lighters are laden.7

SECT. 7.-The Master.

The master or captain of the vessel, who takes the command and responsibility of the sailing operations, and is, to a certain extent, agent for the owners, is appointed by the majority of owners. The appointment requires no written contract; the nomination and his acceptance bind the parties.

1 Abbot, 347. B. C. i. 548. Smith's M. L. 276.-2 Abbot, 345.-3 B. C. i. 552, 553. B. C. i. 555. Abbot, 357.-B. C. i. 555. Abbot, 352. Holt, 310.- Abbot, 378. B. C. i. 557.- Abbot, 379. B. C. i. 558. B. C. i. 506.

In a vessel having British privileges he must be a British subject as to this, and his duties and liabilities in connexion with the register and certificate, see above, p. 65. The master has full power over the motions of the vessel after she has left the port, and may use whatever legal means suggest themselves to him as best calculated for the accomplishment of the voyage. His power to enter on contracts for the employment of the ship is absolute abroad. In a home port it is exercised under the authority of the owners.1 Where the ship is on general freight (see p. 274) he binds the owners in virture of his power of management, by receiving goods on board.2 The master has full authority to get the ship fitted out, victualled, and manned, in foreign ports, and he may even borrow money, provided the loan is supported by evidence of apparent necessity. In a home port his contracts for repairs and necessaries will bind the owners, unless it can be shown that the contractor knew that such power was not intrusted to the master. In all these cases, independently of the responsibility of the owners, parties will have a claim on the master, unless he specially stipulate otherwise.3

The master must give bond, according to a scale proportioned to the tonnage, to return the ship's certificate if she lose her character as a British vessel. If the master is changed the change must be indorsed on the certificate, and the new master must give bond. The master must keep a muster-roll of the seamen, according to the directions of the act for the relief of disabled merchant-seamen, under a penalty of £5.5 He must observe the regulations of the act for consolidating the laws relating to merchant-seamen (7th & 8th Vict. c. 112). By that act the master forcing ashore or leaving behind any seaman during a voyage, is liable to fine and imprisonment. He cannot discharge a seaman abroad without the written sanction, founded on inquiry, of the principal government officer, or in his absence the principal officer of customs-in a colonial port; or of the British consul, or two respectable merchants, in an alien port.7 The master of a vessel trading abroad, must deliver to the collector and comptroller of customs a list of the crew, both at departure and return. If the ship be sold at a foreign port, he is bound to find the crew a passage home.9 The masters of emigrant or other passenger vessels are bound to observe

6

1 B. C. i. 506.-2 Abbot, 156.-3 B. C. i. 507. Holt, 222. Abbot, 132. -48 & 9 Vict. c. 89, §§ 23, 24.-5 4 & 5 Wm. IV. c. 52, § 9.—6 7 & 8 Vict. c. 112, § 46.-7 Ibid. Ibid. § 26.- Ibid. § 17.

the police regulations for the protection of the public provided by the act "for regulating the carriage of passengers in merchant vessels," and are liable to penalties for neglect or refusal to obey the act. The masters of steam-boats are in the same manner bound to observe the act 9 & 10 Vict. c. 100.

SECT. 8.-Average.

Where a loss is not General Average, as below defined, it

is called " Special or Particular Average,—a very incorrect expression, used to denote every kind of partial loss or damage happening either to the ship or cargo from any cause whatever."

12

By a very ancient law, which has now been in some form or other adopted in all civilized communities, certain losses incurred for the safety of the whole adventure are proportionally borne by all the parties so benefited. The principle upon which the rule is founded is, that whenever a portion of the ship or cargo is advisedly sacrificed for the safety of the whole, the loss shall not be solely borne by the proprietor, but shall be divided among all for whose benefit the step has been taken; and hence the species of loss so occasioned is termed general average. That it should be done advisedly has been held to infer the consent of a majority of those on board, but the deliberate act of the master and crew, or of the master alone, will generally be sufficient, as the circumstances and event, more properly than the form, justify the act. "Previous deliberation, if there be time to deliberate, and a due choice of the heaviest and most cumbersome articles, may be proofs of the necessity and propriety of the act, but they are not the only and therefore ought not to be deemed the essential proofs." "3 To make the loss average, it is necessary that the remaining property has actually been preserved, and it is a rule that an entry shall be made in the log-book on the return of tranquillity, stating the act and describing the goods sacrificed; and affidavits to the same effect should be made at the first port.5 When a sacrifice of any part of the property under the care of the master is unadvisedly made, the owners of the vessel will be the losers, either from the property being their own, or from their responsibility for the safety of the cargo. "The goods must be thrown overboard for the sake of all; not because

15 & 6 Vict. c. 107, § 27.-2 Abbot, 473.- Ibid. 476.- Marshall, 541.- Abbot, 476. B. Č. i. 585.

the ship is too heavily laden to prosecute an ordinary course through a tranquil sea, which would be the fault of those who had shipped or received the goods, but because at a moment of distress and danger their weight or their presence prevents the extraordinary exertions required for the general safety." Goods stowed on deck have not the benefit of average if thrown overboard, as they are presumed to be an encumbrance.2 Goods thrown overboard to lighten the ship so as to enable her to get into port are not average. But the case is different if the vessel has been so lightened to enable her to escape from an enemy, to seek shelter from a storm, or to enter a port, to repair such damage caused by a storm or an enemy, as might render the voyage otherwise dangerous. The expenses incurred during the progress of such repairs (viz. in unloading, warehousing, reloading, &c.) are average losses; but in the calculation it will be considered what benefit the ship has derived from the outlay so incurred, and therefore ordinary repairs not necessary for the special safety of the cargo will not be average. Not only the portion of the ship or cargo which may be actually relinquishedfor the general safety, but the damage occasioned to the remaining portions, by the act, is average; as where the deck or sides of the ship are cut to facilitate the discharge of cargo.4

3

5

The ship and all the goods on board contribute to average, except the stores and provisions, and the wearing apparel and money of the passengers and crew. The freight is liable to contribute, but not the seamen's wages. In adjusting the contribution, merchandise is valued at the clear price it would have brought at the port of destination, unless the vessel have to return to the lading port, when the invoice price is taken. Ship's furniture is taken at two-thirds of the price of replacing what is lost. An account is then made out of all the articles which have to contribute, the property sacrificed included, and the loss is proportionably assessed on each.6

SECT. 9.-Salvage.

Salvage is the reward due to those whose extraordinary and voluntary exertions have been the means of saving or recovering a vessel, or her cargo, or any part of either, or of

Abbot, 475.-2 B. C. i. 586.-3 Ibid. 587. Abbot, 480-81. Marshall, 543.- Abbot, 480-81.-5 B. C. i. 590. Abbot, 503-4. Br. St. 1008.Abbot, 505-6. See Stevens on Average, and Martin's Compendium of the Practice of Stating Averages.