he violates to their injury any material instructions under which he sailed.1 The relation of the master to the cargo is somewhat different from that which he bears to the ship; and this relation changes during the period which elapses from the date of lading to that of unlading. He is generally bound to receive the cargo and stow it properly. But while on the voyage he is regarded in respect to the cargo as master of the ship only. When at length the goods have reached their destination, he drops the character of master, and deals with the cargo, in unlading it, as a supercargo or consignee. Sometimes, however, the functions of master and supercargo or consignee are combined at one and the same time.2 § 312. The Same Subject; Master's Powers in an Emergency. But the master of a ship has an enlarged authority in cases of emergency, which is usually denominated his "power from necessity." This it is that justifies him in ordering repairs and supplies in a foreign port, borrowing money on the security of the ship, or even selling the ship as a last resort; by any or all of which acts the owners become bound as much as though the transaction were their own in person. But the necessity must be real and positive, in order that the master may assume such vast authority over property belonging to his employers; and the necessity which justified him in ordering a sale must be far more stringent than that which authorizes the borrowing on the ship's security; while that which authorizes the borrowing is usually considered more urgent than that which makes the owners responsible for repairs. "Whatever is fit and proper for the service on which a vessel is engaged," said Chief Justice Abbott, "whatever the owner of that vessel, as a prudent man, would have ordered, if present at the time, comes within the meaning of the term 'necessary,' as applied to those repairs done or 1 Ib.; Brown v. Smith, 12 Cush. Noble, 2 Pick. 615. See Mephams 366. v. Biessel, 9 Wall, 370. 22 Pars. Shipping, 20-22; Cook Com. Ins. Co., 11 Johns. 40; Day v. 8 Abb. Shipping, 150, 160; 2 Pars. Shipping, 13-18. things provided for the ship by order of the master, for which the owners are liable."1 Hence, to enforce a lien for repairs and supplies, whether express or implied, the rule is well established in this country that the creditor must prove that the repairs or supplies were necessary, or believed, upon due inquiry and credible representation, to be necessary in the particular foreign port. And it is further ruled that where proof is made of necessity for the repairs or supplies, or for funds raised to pay for them by the master, and of credit given to the ship, a presumption will arise, conclusive, in the absence of evidence to the contrary, of necessity for credit. The ordering by the master of supplies or repairs upon the ship's credit is sufficient proof of such necessity to support an implied hypothecation in favor of the material-man, or of the ordinary lender of money, acting in good faith, to meet the wants of the ship. And to support hypothecation by bottomry, evidence of actual necessity for repairs and supplies is required; and, if the fact of necessity be left unproved, evidence is also required of due inquiry, and of reasonable grounds of belief that the necessity was real and exigent.2 Such, in substance, is the latest exposition of the law by the Supreme Court of the United States, which is rather more liberal to the lender of money upon credit than formerly. While, however, in this country, the master may borrow money not only for the purpose of buying necessaries for the ship, but to pay for necessaries already furnished, the English cases seem to discountenance borrowing after the work is done to pay the debts incurred.* § 313. The Same Subject. - Even over the cargo the master acquires extraordinary power under extraordinary circumstances. Where he has neither money nor credit, and cannot communicate with his owners, he may sell part of his cargo, if he cannot make necessary repairs and prosecute his 1 Webster v. Seekamp, 4 B. & Ald. 352. 2 The Grapeshot, 9 Wall. 129; The Lulu, 10 Wall. 192; modifying Pratt v. Reed, 19 How. 359. 3 Ib. See also Bliss v. Ropes, 9 Allen, 341. 42 Pars. Shipping, 16; Brightly Fed. Dig. 786, 787; The Grapeshot, 9 Wall. 129; Beldon v. Campbell, 6 Ex. 886; Robinson v. Lyall, 7 Price, 592. voyage except by so doing. He may sell the whole cargo, if he can neither take it on nor place it on another ship, if made up of perishable goods whose value would be greatly diminished or utterly destroyed before instructions could be obtained from the owner.2 Yet whatever he does with the cargo for the purpose of raising funds for the voyage is upon the supposition that other means of obtaining necessary supplies, such as drawing bills on the owners, hypothecating the ship, and using the owners' credit, have been exhausted. And we need hardly add that the case must be one of actual and urgent necessity, and of prudent conduct under the stress of such necessity. For the cargo, unless, indeed, it belongs to the owners, is one thing, and the ship quite another, so far as the master's authority is concerned. Yet he has duties connected therewith, even where no great exigency has arisen; for he should stow away properly, ventilate, unpack and dry, and otherwise seek to preserve goods on board the vessel peculiarly subject to damage, in the exercise of good judgment; though he need neither repair, nor delay his voyage for the sake of his cargo.5 In case of capture the master should do all in his power, consistent with honor and a reasonable diligence, to get the cargo restored. And in the emergency of stranding and other sea perils, we shall see presently that both ship and cargo contribute for acts of the master done for the common benefit of the property exposed to danger. All such special emergencies extending the scope of the master's powers over ship or cargo presuppose that he is not within communicating distance as to owners, and must act upon his own responsibility.7 1 The Star of Hope, 9 Wall. 203; 2 Pars. Shipping, 23. 22 Pars. Shipping, 23. 8 Owners held not bound by the acts of the master where the latter made expensive repairs most imprudently. Stirling v. Phosphate Co., 35 Md. 128. 4 The Collenberg, 1 Black, 170; Chouteaux v. Leech, 18 Penn. St. 224; Bird v. Cromwell, 1 Mo. 81. 5 The Star of Hope, 9 Wall. 203. 6 Hannay v. Eve, 3 Cr. 242. 7 See Gager v. Babcock, 48 N. Y. 154. When the master of a foreign vessel has authority to contract upon the credit of his vessel for necessary repairs, the credit of the vessel is presumed to be an element in any contract he may make for such repairs. 9 Ben. 79. As to acts of the master terminat § 314. The Same Subject; Master, when specially employed. -Finally, it may be observed of the master that he may have been employed, not by the owners, but by those who have chartered the vessel for a particular voyage, in which case he may bind the charterers, and of course the ship; but probably not the owners personally, without some special authority. Owners may otherwise confer a special agency.2 And sometimes a master is appointed abroad by a consul, or any official person, agreeably to the usage of merchants, and usually in an extreme emergency, in which case he exercises the powers of an ordinary master under like circumstances.8 § 315. Rights and Duties of Seamen. — Seamen, under the master's direction, and that of his subordinate officers, attend to the details of navigation; and their services are indispensable to the proper employment of the ship. This class of persons, whose generosity and improvidence are proverbial the world over, has become an object of peculiar solicitude to the courts; and there are numerous statutes enacted in England and this country, which aim to protect humanely those who navigate the deep, as men unable to protect themselves. Seamen cannot be shipped for a voyage unless the master procures fairly their signatures to shipping articles which must declare the voyage and length of time for which each ing his employment as such at the election of the owners, see Budge v. Mott, 47 Wis. 611. The owners of a vessel, as well as the master, are liable for injuries caused by the negligence or unskilfulness of the master, provided the act be done within the scope of his authority as such. Thompson v. Hermann, 47 Wis. 602. But where the master uses the vessel on the service of a third party, such party knowing that the employment is wholly unauthorized, the owners of the vessel cannot be held liable for damages sustained by such third party during such unauthorized employment. 9 Ben. 352. A master cannot, by selling out his interest as an owner, confer any right to command. 11 12 Pars. Shipping, 18, 19. Ib. See the Cynthia, 20 E. L. & Eq. 623; The Jacmel Packet, 2 Ben. 107. shall be shipped, and be in all respects reasonable and precise. Provisions of due quality and quantity must be furnished; the ship must be seaworthy; and by the general commercial law, seamen who become sick, wounded, or maimed in the discharge of duty must be cared for and supplied with medicines; not to speak of statutes which require vessels when bound on distant voyages to be provided with a suitable medicine chest.2 There are various ways in which seamen may be shipped, so far as concerns their compensation. Sometimes (though rarely in this country) they are employed to receive a certain proportion of the freight earned; sometimes for a certain voyage, to be paid a round sum at the close; sometimes on` shares, as in the case of whaling and fishing ventures; but most commonly on monthly wages for a certain voyage or during a definite period. If a seaman is dismissed without cause before the voyage begins, he is entitled to wages for the time he serves, besides a reasonable compensation for special damages. Where the voyage is broken up by misfortune, or the seaman becomes disabled by sickness not caused by his own fault, the wages are still due. And if the seaman is compelled to desert by the cruelty of the master or other officers, he may claim wages in full. Dis 12 Pars. Shipping, 34-47; 1 Stats. at Large, 131; The Juliana, 2 Dods. 504; Harden v. Gordon, 2 Mas. 541; Bright. Fed. Dig. "Seamen," 755757; Abb. Shipping, 607. See Sweeney v. Cloutman, 2 Cliff, 85. 22 Pars. Shipping, 75, 78, 80; 1 Stats. at Large, 131, 132, 134; Bright. Fed. Dig. 755, 757, 771; Abb. Shipping, 615. Marine hospitals are established for the comfort of old and disabled sailors, and supported by a sort of levy upon those who earn wages; and whenever a sailor has been discharged in a foreign port, it is the duty of the American consul to see that he is paid three months' extra wages, except in case of a disaster to the vessel, rendering the discharge necessary; and to send home seamen in other ships, if need be. And heavy penalties are visited upon the master who discharges a seaman in a foreign port against his consent, and without good cause, while the seaman may recover full indemnity for loss of time, and expenses. besides. 2 Pars. Shipping, 84-88. 3 Abb. Shipping, 606; 2 Pars. Shipping, 47 et seq.; Taylor v. Laird, 1 H. & N. 266; Bright. Fed. Dig.. 764, 765. 4 Parry v. The Peggy, 2 Browne Civ. and Adm. Law, 533. 5 Increased danger of the service, as where war is declared by the employing government, may justify the seaman in abandoning. O'Neil v. Armstrong [1895] 2 Q. B. 418. 6 See 2 Pars. Shipping, 52, 53, and 401 |