The law of shipping, the law of marine insurance, and the law of negotiable paper have a common origin in the custom of merchants. This custom and its authority ascend to a remote antiquity, and the books to which we must refer for it give us the rules of the commercial world daring many ages. Many of the present rules and principles of the law of shipping have an earlier origin than anything in the common law, or indeed in any existing system of law. Even the Roman law, in the rubric de lege Rhodia de jactu (concerning jettison), quotes and confirms the law of Rhodes, whose commerce flourished at least 1,000 years before the Christian era. In the fragment to which we have alluded, the modern law of jettison, average, and contribution is as distinctly stated as in any recent text book; and in the title de nautico foenore, which, however, like many other rubrics of the Corpus Juris relating to shipping, is not traceable to any earlier source than the law of Rome, we have the present rules regulating loans on bottomry and respondentia.
Passing over several centuries, we find other still ancient but useful repositories of the customs of merchants and of the maritime law in the Consolato del mare, a collection or digest of the principal rules and usages established among commercial nations from the 12th to the 14th century, and in the laws of Oléron and the laws of Wisby, codes of maritime usages promulgated about the 12th or 13th century. Later, Le guidon, a book of the 16th century; the Ordonnance de la marine of Louis XIV., published in 1681, a work of the highest excellence covering the whole ground of maritime law; Valin's commentaries upon the ordinance; Cleirac's Us et coutumes de la mer; and the writings of Roccus and Casare-gis, Italian jurisconsults of the 17th and 18th centuries, reflect the commercial usages of their respective periods, and are the abundant, authoritative, and often sought sources of the modern law of shipping. - A ship is personal property, a chattel; and unless some positive law interposes, it may be transferred from seller to buyer by the same forms that attend the transfer of chattels of any other description; and in fact it can hardly admit of a doubt that an oral contract suffices to pass the property in a ship, and that no written evidence of the sale is essential to its validity.
Still it is the ancient usage of the maritime law to make a bill of sale or other written instrument the almost inseparable accompaniment and evidence of the sale, and it is convenient and proper that it should continue to be so. But apart from expediency and established usage, written evidence of the sale of a ship is made an essential condition of registration under the laws of the United States. Though the statute does not prevent the property from vesting in a purchaser under a merely oral contract, yet it renders a bill of sale a practically indispensable formality, because registration, of which it is the condition, gives to the ship all its substantial value as an instrument of commerce. - The laws which regulate commerce confer exclusive privileges in the carrying and coasting trade on United States ships. No merchandise may be brought from any foreign country to this except in American vessels, or in vessels belonging to that country of which the merchandise is the product, or from which it can only be or most usually is first shipped for transportation; and no merchandise shall be carried from port to port in the United States by any foreign vessel unless it formed a part of her original cargo.
Ships intended for the fishing or coasting trade must, if not registered, be enrolled and licensed. In short, a ship that is neither registered nor enrolled and licensed cannot sail on any voyage with the privilege or protection of a national character or national papers. This national character and the benefit of it can be acquired only by compliance with the registry laws. The ships which may be registered under these laws are those built within the United States and owned wholly by citizens thereof, and those captured and condemned as prizes or adjudged forfeited by violation of law, if owned wholly by citizens of this country. No ship can be registered if an owner or part owner usually resides abroad, although a citizen, unless he be a consul of the United States or an agent for and a partner in a mercantile house established and doing business here; nor if the master be not a citizen of the United States; nor if the owner or a part owner be a naturalized citizen and reside in the country whence he came more than a year, or in any foreign country more than two years, unless he be a consul or public agent of the United States. If a registered American ship be sold or transferred in whole or in part to an alien, the certificate of registry must be delivered up, or the vessel is forfeited.
As soon as a registered vessel arrives from a foreign port, her documents must be deposited with the collector of the port of arrival, and the owner, or, if he does not reside in the district, the master must make oath that the register contains the names of all persons who are at that time owners of the ship, and at the same time report any transfer of the ship or of any part that has been made within his knowledge since the registry, and also declare that no foreigner has any interest in the ship. If a ship be transferred while at sea or abroad, the old register must be given up, and all the requirements of law as to registry must be complied with within three days after her arrival at the home port. - The rights of part owners of ships form an important branch of the law of shipping. Two or more persons may become part owners by building a ship together, or by joining in purchasing it, or each may purchase his share independently of the others; and their rights and obligations are the same in all these cases. A ship may form part of the stock or capital of a copartnership, and then it will be governed in all respects by the law of partnership. But part owners are not necessarily partners.
Any one of them may at any time sell his share, but he cannot sell the share of any other part owner without his authority. A majority of the owners may generally direct the employment of the ship at their discretion; but a court of admiralty will interfere to do justice between them, and prevent any one from inflicting injury on the others. In the absence of the rest, and without prohibition from them, one part owner may, in the exercise of good faith and a sound discretion, manage the ship as for himself and them; and the contracts into which he enters in relation to the employment or preservation of the ship bind all the part owners in favor of an innocent third party. In general, all the part owners are liable in soli-do, or each one for the whole amount, for all the repairs of a ship or for necessaries actually supplied to her in good faith; but if it can be clearly shown that especial credit was given and intended to be given to one owner personally to the exclusion of the others, the others cannot be holden. One of the part owners generally acts as ship's husband. His ordinary duty and authority include equipping and repairing the ship, taking care of her while in port, furnishing her with all regular and proper papers, and making contracts for freight or passage.
He cannot unless specially empowered make insurance, buy a cargo, borrow money, or surrender the owners' lien on the cargo for freight. - The owner of a ship may employ it in carrying his own goods or those of another. He may carry the goods of others while he himself retains the possession and direction of the ship, or he may lease it to others. In one case, he carries goods on freight; in the other, he lets his ship by charter party. When goods are carried on freight, the rights and obligations of ship owner and shipper are stated generally in the bill of lading, which is now in universal use among commercial nations with but little variety of form. It should contain the names of the consignor and consignee of the vessel, of the master, of the places of departure and destination; also the price to be paid as freight, with primage and other charges if any there be; and either in the body of the bill or in the margin the marks and numbers of the things shipped.
The bill should be signed by the master of the ship, who by the strict maritime law has no authority to sign a bill of lading until the goods are actually on board. One copy of the bill of lading is usually retained by the master, and three copies are given to the consignor; of these he retains one, and the others he sends to the consignee, one of them with the goods and the other by some other conveyance. The bill promises delivery to the consignee or his assigns. The consignee may designate his assigns by a particular indorsement, or he may indorse the bill in blank. As the bill is evidence against the ship owner as to the reception of the goods, and their quantity and quality, it is common to say: "Contents unknown." Yet between the ship owner and the shipper the bill is not conclusive, and the former may show, that the goods were injured or destroyed on the passage by reason of some intrinsic defect, which was not apparent or easily to be ascertained when the goods were shipped. But if the bill has altered the situation of parties relying on its truth, so that either an innocent party must suffer or else the ship owner whose agent signed the bill either fraudulently or heedlessly, it is he and not the innocent party who must bear the loss. - The contract of affreightment is entire; therefore no freight is earned unless the whole is earned by carrying the goods quite to their destination.
If the transportation is incomplete, having been interrupted by wreck or other cause, there is no absolute right of freight. Yet there is a conditional right; for as soon as the ship receives the goods, it not only comes under the obligation of carrying them to their destination, but at the same time, or perhaps more exactly, on breaking ground and beginning the voyage, acquires the right of so carrying them. Therefore, if any interruption intervene, the ship owner has the right of transshipping the goods and carrying them on to their original destination. The goods are to be delivered by the bill of lading in good condition excepting "the dangers of the seas," and such other risks or perils as may be expressed. Damage caused to goods by an excepted risk is therefore the loss of the shipper or consignor, and not the loss of the owner. But if goods are lost in substance, even if not in form, as if sugar is washed out of boxes or hogsheads, or wine leaks out of casks by reason of injury sustained from a peril of the sea, though the master may deliver the hogsheads or casks, this is not a delivery of the sugar or of the wine, and no freight is due.
But freight must be paid if the goods are injured or actually perish and disappear from any internal defect or decay or change; that is, from causes inherent in the goods themselves. If goods are delivered, although damaged and deteriorated from faults for which the ship owner is responsible, as bad stowage, deviation, negligent navigation, or the like, freight is due, the amount of the damage being first deducted. The rules in respect to passage money are quite analogous to those which regulate the payment of freight; but as the money is not earned except by carrying the passenger, or pro rata by carrying him a part of the way with his consent, it may be recovered back when it has been paid, as it usually is, in advance, and not earned. Not only is the owner of the ship bound to the owner of the cargo, as soon as he receives it, to lade it properly, to take care of it while on board, to carry it safely, so far as the seaworthiness of the ship is concerned, to its destined port, and then deliver it all in a proper way, but the ship itself is bound to the discharge of these duties. - An owner, we have said, may let his ship to others. The instrument which contains the evidence of such a contract is called a charter party, an ancient name, the origin of which is not quite certain.
The form of the instrument varies with the bargain between the parties. Generally only the burden of the ship is let, the owner holding possession of her, finding and paying master and crew, supplies and repairs, and navigating her as is agreed upon. Sometimes, however, the owner lets his ship as he might let a house, and the hirer takes possession, mans, navigates, supplies, and even repairs her. The charter party should designate particularly the ship and master and the parties; should describe the ship generally and particularly as to her tonnage and capacity; should designate especially what parts of the ship are let, and what parts if any are reserved to the owner or to the master to carry goods, or for the purpose of navigation; should describe the voyage or the period of time for which the ship is hired with proper particularity; and should set forth the lay days, the demurrage, the obligations upon either party in respect to the navigation or furnishing of the ship, and all the other particulars of the bargain. Lay days are those which are allowed the charterer for loading or unloading the vessel. If more time than these agreed lay days is occupied, it must be paid for, and the amount thus paid is called demurrage.
By the charter party the hirer (or charterer) usually agrees to pay so much demurrage a day. If time be occupied in repairs of the ship which are made necessary without the fault of the owner or master or of the ship itself, that is, if they do not arise from her original unseaworthiness, the charterer pays during this time. But generally speaking, there is no claim for demurrage on the charterer for any delay which is induced by the action of the elements, as ice, tide, or tempest, or from any act of government, or from any real disability of the consignee which could not be imputed to his own act or to his own wrongful neglect. The contract of charter party may be dissolved by the parties by mutual consent, or without their consent by any circumstance which renders the contract illegal; as for example, a declaration of war, an embargo, or a blockade. - In the navigation of the ship, the whole care and supreme command are intrusted to the master. He must see to everything that respects her condition, including her repairs, supplies, loading, and unloading. He is principally the agent of the owner, but is to a certain extent the agent of the shipper and of the insurer, and of all who are interested in the property under his charge.
Much of his authority as agent of the owner springs from necessity. In a case of extreme necessity, he may even sell the ship; he may pledge her for a debt by a bottomry bond; he may charter her for a voyage or a term of time; and may raise money for repairs or incur a debt therefor, and make his owners liable. Generally the master has nothing to do with the cargo between the lading and the delivery; but if the necessity arises, he may sell the cargo or a part of it at an intermediate port if he cannot carry it or transmit it, and it must perish before he can receive specific orders. So he may sell it or a part of it, or pledge it by means of a respondentia bond, in order to raise money for the common benefit. A bond of respondentia is much the same thing as to the cargo that bottomry is as to the ship. It secures money borrowed at maritime interest and on maritime risk by pledge of the goods, and the debt is discharged when the goods perish. The owner is liable for the master's wrong doings; that is, for every injury done by the master while acting in that capacity. - Under our pilotage laws, every ship entering or leaving a harbor must, within certain limits, accept the services of a pilot if they are offered, or pay the prescribed fees even if those services are declined; and if a ship neglect to take a pilot when it should and can do so, the owners will be answerable in damages to shippers or others for any loss which may be caused by such neglect or refusal.
As soon as the pilot stands on deck he has control of the ship, and is answerable for any damage resulting from his own negligence or default. Yet it remains the master's duty and power, in case of obvious and certain disability, or dangerous ignorance or error, to disobey the pilot and dispossess him of his authority. - See also Average, Bottomry, Salvage, Seaman, and Stoppage in Transitu.