Of Merchant Of the wages of the seamen. the ship by the process of that court, as a security for their demand, or may cite the master or owners personally to answer them. But if the seamen be hired by deed, and with special conditions; that is, not in substance the same with the articles in common use; in such case, as the fact of such deed, if denied, cannot be tried in the Court of Admiralty, the action must be in the Courts of Common Law. But if the deed have no special conditions, the circumstance of its being a deed, that is, having a seal, will not take away the jurisdiction of the Admiralty; and the wages may be recovered, as above said, by the arrest of the ship. 27. The Court of Admiralty will give its aid in the same manner, namely, by the arrest of the ship, to foreign seamen in a British port; unless where the contract is of a nature specially referring to their own law; and such law is not so set forth in the contract as to enable the court to judge upon the face of it. 28. The wages of seamen take precedence of all other demands, and are the most sacred of all liens. But actions for such wages must be commenced within six years after the cause of such action shall accrue, unless those impediments exist which in other cases take a demand out of the statute of limitations ;-such as, minority, lunacy, captivity, or absence beyond seas. If the agreement be by deed, the demand may of course be made within twenty years. The form of action is by assumpsit, or action of debt, or (in the case of a deed) by debt or covenant. The master, though a servant of the owners, has a distinct interest from them; and therefore may be a witness either for the owners or sailors. And if the articles are wanting, the seamen may apply to a Judge for an order to the master or owner to produce them. And a seaman, when plaintiff, cannot be nonsuited for not producing the articles. 29. By a recent act, (k) some facilities are given to (k) 59 Geo. III. c. 58. Of Merchant seamen for the recovery of their wages. In all cases, Shipping and where the wages do not exceed twenty pounds, they may Seamen. apply to a justice of the peace, who, upon a due hearing, may thereupon issue an order to the master and owner for immediate payment; and, in case of their disobedience, may levy such money by distress. And the determination of the justice or justices is to be final, unless an appeal be interposed by either party to the High Court of Admiralty within the space of seven days after the order made. Such are the principal rules of law as respect the ship, the master, and seamen, absolutely considered; that is to say, without reference to any contract respecting the ship, or her employment by the merchant. And this leads us to a brief review of our third and last part. III. OF MARITIME CONTRACTS. to Part III. of Maritime Contracts. WE now arrive at maritime contracts, the third divi- Introduction sion in the natural order of our subject. The contracts by which ships are employed are Charter-parties and Bills of Lading; the duties of owners under such contracts are a due and careful loading, voyage, and delivery; and the duties of merchants are to pay such freight as may be owing under their contract, and such demurrage, salvage, and general average, as the occasion of the voyage may produce. Under this consideration of our subject matter, it distinguishes itself into the five heads of, 1. Charterparties, and Bills of Lading, 2. Demurrage, 3. Freight, 4. General Average, and, 5. Salvage. To which may be added, from its important use and frequent occurrence, 6. The right of the unpaid consignor to stop in transitu. And, First, of Charter-parties and Bills of Lading. 1. A charter-party is a contract for the letting to freight Of Charterthe whole or part of a ship, for one or more voyages. parties. is so called from the ancient practice of having such deed divided longitudinally into two parts, along an indented line drawn through the middle of the writing, one of which parts was given to the owner, and the other to the It Of Maritime merchant. Such charter-party is universally in writing: Contracts. Of Charterparties. but it is immaterial whether it be by instrument under seal, or by writing only. If by deed, it is either by a deed inter partes, or a deed-poll. A deed inter partes binds only the parties to the deed, and covenants or grants only as respects them. But a deed-poll may make a grant to any one, though not a party to it. But the owner, though not a party to a deed inter partes between the master and the merchant, may sue upon the covenants expressed to be made for his account by the master; the distinction being, that he is a party to the covenants of the deed, though not to the obligation. In home ports, the charter-parties are usually made between the owner and merchant; in foreign ports, between the master and merchant. In the latter case, the contract is seldom under seal. 2. The formal parts of a charter-party are the following: 1. The premises, which specify the parties to the deed; their character as master, owner, and merchant; and the name, burthen, and tonnage of the vessel. 2. The letting of the ship for the voyage or voyages; and the freight, whether it be a gross sum for the whole voyage, or so much for any division of time or tonnage, or bale of goods. 3. The stipulations on the part of the owner or master for the seaworthiness and due appointment of the ship in all necessaries for the voyage; for the due lading, departure, and delivery at the destined port, certain perils and accidents excepted. 4. The stipulations of the merchant, that he will furnish a cargo, and will unload the goods within a reasonable time, and pay the freight and demurrage agreed upon. 5. The penal clause, by which the parties bind themselves in a specified penalty for the faithful performance of their respective covenants. 3. The principal questions under charter-parties, and the main source of all the cases, arise under the heads of the duties of the master and owner by virtue of such deeds; the exceptions to their liability, and the degree in which their service is affected by an imperfect performance of the voyage agreed upon, or goods carried. As respects parties. the duties of the master and owner under the charter- of Maritime Contracts. party, they are contained either in the express terms of the charter-party; or, at least, are immediately deducible from them. These duties distribute themselves under the four divisions, of the seaworthiness and due appointment of the ship; the loading; the voyage; and the delivery. 4. As regards the seaworthiness and due appointment of Charterof the ship in all necessaries, the stipulation is, that the ship shall be tight, staunch, and strong; sufficiently manned; and every way fitted for the voyage. This covenant comprehends not only the hull, rigging, stores, and crew, but all the necessary papers, of which the ship must be possessed to be allowed to enter the port of destination; such as bills of health, &c. And as respects the crew, they must not only be sufficient in number, but in skill; the captain must be duly qualified, and so must the seamen. And as the seaworthiness of the ship is a common law duty, the law will not allow it to be indirectly and consequentially diminished and reduced by any of those. precautionary notices and restrictions of liability, which have become too common amongst land-carriers. In such cases, the courts will hold that the common law duty is a preliminary and almost indispensable engagement; and that the precautionary notice must be regarded as applying to some other liabilities; a principle which some recent decisions have very wisely extended into cases of carriers by land. 5. As respects the loading of the vessel, it is the duty of the master to receive his lading according to the custom of the particular place; sometimes from the wharf or docks; sometimes from the beach; sometimes from the craft at the vessel's side. The master is responsible for theft and robbery whilst in port; the sole custody being necessarily in him, as the goods are out of the dominion of the freighters. The due lading likewise includes proper stowage, packing, &c. according to the custom of the port, the course of business, and the usage of trade. 6. As regards the voyage, the master is bound to use 1 Of Maritime Of Charterparties. proper expedition, and not to deviate or delay. But-a deviation for the repairs of the ship, or necessary refuge from the perils of the sea or enemy, is of course not only an excuse, but a duty. He must likewise také proper care of the cargo during the voyage, and is responsible for all injuries within his means of prevention; for injury by vermin for example, unless he shall have taken all due care to extirpate them. In the same manner, he is answerable for goods stolen and embezzled. In short, for any damage or injury arising from negligence, or absence of due skill. 7. As respects the delivery, the master is bound to take the same care in the delivery of the cargo, as in receiving it on board. In ordinary cases, he is not bound to part with the goods till the payment of the freight and therefore, if he have reasonable cause to doubt the solvency of the assigns of the cargo, it is his duty to retain the goods till payment, if payment is to be received by him from them. But as much inconvenience would ensue from the delay of the ship, the usage is, that he may in such case land the goods in some public dock or wharf; and there give them in custody to the wharfinger or dock keeper, with an order not to part with them till the payment of the freight. The lien is then continued in the master and owners through the custody and possession of the wharfinger as his agent. In the same manner, if goods on board of ship are taken out of the ship invito the master, and by compulsion of law, or the authority of an act of parliament, the lien will be preserved in the place, and in the hands, where the law has deposited them. This holds in the case of goods landed to secure the duties in the public docks. The master's responsibility continues till the goods are delivered to the consignee, according to the ordinary usage of the trade, or the custom of the voyage; that is, either to his wharfinger or his servants, either in boats or on land. Such are the general duties of masters and owners under charter-parties. 8. As regards the exceptions to charter-parties; or the |