obedience, desertion without cause, and general misconduct on the part of seamen, are severely punishable, in order that discipline may be enforced at sea; yet the law feels the refining influences of a civilized age; for while, in extreme cases, like mutiny, the officer in command of a ship might resort to extreme measures, even to shooting a ringleader, he is not now permitted by our statute to apply deliberate flogging, as formerly, by way of punishment.

Public sentiment sets strongly against those cruel and violent methods of discipline which petty despots at sea once deemed so essential to maintaining their own dignity; and in general the only remedies available to enforce discipline and good behavior are forfeiture of wages, in whole or in part, extra labor, irons, and confinement or imprisonment.1 Even in the matter of forfeiting wages, the courts by no means favor the master. For while a justifiable discharge of a seaman for bad conduct will work a forfeiture of wages previously earned, the maritime law does not allow a total forfeiture for a trivial irregularity, nor for a single act of disobedience, even if a violation of the shipping articles.2 And where acts of insubordination have been adequately punished, a subsequent forfeiture of wages will not be allowed.3

cases cited; Bush v. Schooner Alonzo, 2 Cliff. 548; Barker v. Baltimore, &c. R., 22 Ohio St. 45; Bright. Fed. Dig. 772.

See Act June 7, 1872, c. 322. 1 Bright. Fed. Dig. “Admiralty," 26; 2 Pars. Shipping, 88-105; Act of 1850, c. 80, 9 Stats. at Large, 515.

2 See Bright. Fed. Dig. Suppl. 167, "Seamen."

8 Ib. See English Stat. 43 & 44 Vict. c. 16 (1880) as to payment of wages, seamen's lodgings, desertion, and absence without leave. Habitual drunkenness of a master may forfeit his right to wages. 5 P. D. 254.

For the payment of their wages seamen may sue in personam at common law with the process of sequestration. Leon v. Galceran, 11 Wall. 185. And they have also a lien,

which attaches to the ship and the freight, and all the proceeds thereof, and follows them into whose hands soever they may go; and this lien is not avoided by a sale of the ship; nor can it be subordinated to claims under a bottomry or hypothecation, though perhaps it is postponed to a collision lien; nor does the mere loss of possession affect this privileged lien of seamen, so long as there is not delay amounting to a waiver or negligence. Brown v. Lull, 2 Sumner, 443; Sheppard v. Taylor, 5 Pet. 675; 2 Pars. Shipping, 59-62; Bright. Fed. Dig. 767; The Great Eastern, L. R. 1 Ad. & Ecc. 384. See also, as to action at common law, Wilson v. Borstel, 73 Me. 273. Expenses incurred for seamen's wages and sub

§ 316. Rights and Duties of Pilots. - Pilots have important duties in connection with the steering of the ship through dangerous places; and while on board they have a control and responsibility second only to that of the master, and in some respects even greater. The word "pilot" had formerly two meanings one was the pilot for the whole voyage, or the sea pilot, the other was the pilot who carried the ship through the harbor to which he belonged. In the latter sense the word is now generally used with us, and numerous statutes have been enacted in the several States, regulating the whole subject of a pilot's employment.1

§ 317. Rights, etc., of "Material-men." — One often hears of "material-men," and their liens as concerns a ship. The name "material-men" commonly applies to those who are employed to build, repair, or equip a ship, and who in general furnish work or necessary supplies for the vessel. These persons have not only a common-law lien for their work and material and supplies, but more ample liens conferred and enforced by local statutes.2

§ 318. Methods of employing a Ship; General Ship and Charter-Party. Third, as to the manner of the ship's em

sistence are items of charge proper to be included in the adjustment of general average. Barker v. Baltimore, &c. R., 22 Ohio St. 45. Seamen held entitled to priority of payment out of proceeds of the sale of the ship in court, over material-men who furnished supplies to the vessel during their employment. 9 Ben. 187. And see 10 Ben. 155, 234, 290, 369, 385, 445. In the absence of any evidence as to the law of the place where the contract of shipment is made and is to be substantially performed, the law maritime will be presumed to control the contract. 10 Ben. 155.

Under the English Merchant Shipping Act (1854) and subsequent acts a seaman is no longer liable to imprisonment for neglecting to join his ship, but other remedies are substituted. See 11 Q. B. D. 225.

1 Bright. Fed. Dig. "Navigation," 588; Abb. Shipping, 195 et seq.; 2 Pars. Shipping, 106-119, and cases cited. See Steamship Co. v. Joliffe, 2 Wall. 450; The Levi, L. R. 2 Ad. & Ecc. 102; Ex parte McNiel, 13 Wall. 236; 15 Fed. Rep. 495; Cook v. Curtis, 58 N. H. 507. Pilotage is made compulsory by shipping acts under various prudential circumstances. See The Vesta, 7 P. D. 240; [1895] 1 Q. B. 566. The owner of a ship is not necessarily exempt from liability for damages occurring while a pilot is on board; though much depends upon the statute responsibility conferred on a pilot while employed necessarily. 7 P. D. 132, 190.

22 Pars. Shipping, 141-145, and cases cited; Bright. Fed. Dig. 797799; The General Smith, 4 Wheat.

ployment. There are two ways in which a merchant ship may be employed for the purpose of venture and profit. One is by the owners themselves, who send the ship on some particular voyage, and agree with various parties to transport their merchandise to the place of destination; the ship thus employed being often styled a general ship. The other way is for an entire ship, or at least the main portion of it, to be let for a determined voyage to parties desiring it by a written instrument familiarly known as a charter-party.1 The case is analogous to that of a man owning a warehouse, who may either occupy it for himself and sub-let as he pleases, or may lease the whole building to others at a specified rate of compensation and permit them to sub-let at their own risk.

§ 319. The Same Subject; General Ship; Contract of Freight. Where the owners use their own ship, they may, to be sure, carry their own merchandise exclusively; but in general they take that of others besides at a sum agreed upon, which sum is usually known as "freight;" this word being also applied, more loosely, to the goods themselves which are taken for hire. The contract for carriage of goods on freight is usually considered as made by or on behalf of the owners. The ship-owners undertake and promise to carry safely in their ship the goods of the shipper to the destined port, in the usual way, without unnecessary delay or deviation; and on the other hand the shipper is bound, if the goods are so carried, to pay to the owners of the ship the freight earned by the carriage. The ship and the cargo have corresponding rights and also corresponding liens for the enforcement of those rights. If the goods are once laden on board, the right of the ship-owners to carry them the whole distance, and to claim full freight, is complete, unless they choose to permit the shipper to take the goods out again. But if the ship-owners fail to act up to their own stipulations; if the

438; Abb. Shipping, 142; The Neptune, 3 Hagg. Adm. 129.

1 Abb. Shipping, 123; 1 Pars. Shipping, 170, 171.

2 Bright. Fed. Dig. 791, 792; 1

Pars. Shipping, 171; Abb. Shipping, 319, 405; Robinson v. Manufacturers' Ins. Co., 1 Met. 143.

8 Ib.; Flint v. Flemyling, 1 B. & Ad. 45; The Sch. Sarah, 2 Sprague, 31.

ship be unseaworthy, or badly manned; or if it be unnecessarily delayed in completing the voyage, the ship becomes subjected to the shipper's lien for indemnity against the loss or diminution in value of his goods, and the owners are responsible for the consequences.1 In its nature the contract for the conveyance of merchandise for a round sum is an entire contract; and unless it be completely performed by the delivery of all the goods at the place of destination, the owners will, in general, derive no benefit from the time and labor expended on a partial performance; while if the owner of the cargo be the cause of its not being transported to the port of destination, full freight may be recovered.2 The contract for freight is not only, generally speaking, an entire contract, in that no freight is payable unless the whole voyage is performed, but also as to the quantity of the goods, no freight being payable unless all are delivered.3

Sometimes the freight money is paid in advance, in whole or in part; in which case, if the goods are not delivered or the voyage not performed, questions somewhat perplexing may arise, which, however, are rather of fact than of law. The voyage never having been begun, no freight money can be claimed by the owners; but, since acts of God or a public enemy, and the risks of sea perils generally, are not ordinarily assumed by those who carry merchandise in ships, any interruption which occurs after the voyage is begun, whatever be the delay it causes, if it occur from a peril of the seas and without the master's fault, as by capture and recapture, embargo, and the like, will not prevent the owners from claiming the whole freight, provided the vessel finally arrives

1 Bright. Fed. Dig. 791, 795; 1 Pars. Shipping, 175–180.

2 Caze v. Baltimore Insurance Co., 7 Cr. 358; Hart v. Shaw, 1 Cliff. 358; The Nathaniel Hooper, 3 Sumner, 542.

8 Ib. See 1 Pars. Shipping, 204210; Schouler Bailments, § 529.

4 Manfield v. Maitland, 4 B. & Ald. 582; 1 Pars. Shipping, 211.

The English rule, which is admitted to be harsh, and unlike that of other countries, is that payments made in advance on account of freight cannot be recovered, though the vessel be lost. Byrne v. Schiller, L. R. 6 Ex. 319. As to enforcing a contract for advance freight after the ship is lost, see [1891] 1 Q. B. 742.

without avoidable delay, bringing the cargo to the port of final destination.1

§ 320. The Same Subject. The contract of freight, like any other contract, may contain special stipulations, to which owners and shippers must conform; and illegal contracts of this nature are, of course, void; as, for smuggling against the laws of the country to which the ship belongs, or sailing under the license of an enemy.2 So the shipper may accept his goods at an intermediate port, and thus make himself liable for freight pro rata, at least, and even for the entire freight if the carrier was disposed to complete the transit.3 And in order that the ship-owners may earn and receive their freight, the law permits the master, if unavoidably delayed from damage to the ship or other like cause, to send his cargo forward in another vessel, or even by land conveyance, to its place of destination, and then claim full freight; and there are circumstances under which it would be clearly his duty to do so, for the benefit both of the shipper and the ship-owners. He may in an exigency charge the excess of the cost of transshipment over his freight to the owner of the goods. But under ordinary circumstances ships are treated as "common carriers," 5 the carriage of goods being, however, regulated considerably by the express terms of the bill of lading; and the merchandise must be delivered at the port of destination and to the proper parties, without unreasonable delay or damage from the ship-owners' fault. There can be no right to claim freight, ordinarily, unless delivery is made, or is prevented from being made by the act or fault of the shipper, or of the person to whom the goods were con

1 Bright. Fed. Dig. 792; Tindal v. Taylor, 4 Ell. & B. 219; Curling v. Long, 1 B. & P. 634; 1 Pars. Shipping, 220; M'Bride v. Mar. Ins. Co., 5 Johns. 299.

2 See Wilson v. London, &c. Navigation Co., L. R. 1 C. P. 61; The Aurora, 8 Cr. 203; 1 Pars. Shipping, 213, 214.

8 Caze v. Baltimore Insurance Co., 7 Cr. 358; Bright. Fed. Dig. 792;

Cook v. Jennings, 7 T. R. 381; 1 Pars.
Shipping, 239-244.

4 Rosetto v. Gurney, 11 C. B. 176; Saltus v. Ocean Ins. Co., 12 Johns. 107; Hugg v. Augusta Ins. Co., 7 How. 595; 1 Pars. Shipping, 231–238. See Thwing v. Washington Ins. Co., 10 Gray, 443; Lemont v. Lord, 52 Me. 365.

5 See Schoul. Bailments, part vi., at length, as to common carriers.