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merit that regulate our mercantile navy, as well as the reasonings of the late Mr. John William Smith, and Lords Stowell and Tenterden, we shall attempt to embrace the most prominent points requisite to be known, and expose them with all the lucidity and simplicity which is necessary, in offering an abstruse subject to the attention of the young.
The first thing is to ascertain the nationality of a ship, and whether that ship possesses those rights which entitle her to the protection of the British laws and the British ocean police, exercised by our navy. The important point is, therefore, the registry, for no ship can be registered as British unless all the owners are British subjects or denizens. If this regulation were not enforced, it would open a door to the greatest frauds, as foreigners might, under cover of one or more British names, carry on operations incompatible with British rights and interests, and evade the responsibility attaching thereto. But a regularly constituted corporation forms an exception ; for instance, there is nothing to prevent a foreigner from purchasing scrip of a British chartered company, because here the responsibility and direction are exclusively British, the foreigner standing in no relation but that of a contributor of funds to a corporation, the responsibility and direction of which are exclusively British. If the British flag be used by any ship owned wholly or in part by foreigners, she is forfeited as a penalty for her infringement of that broad line of demarcation which Jurisconsuls always insist upon, so as to give a distinct and unmixed identity to the nationality of a ship, the whole fabric of our maritime jurisprudence being built up on this distinct identification; but there are some cases in which the rule is varied; for instance, if a foreign ship become British property at a foreign port, the British consul may give a provisional certificate of registry—a sort of betrothal, which precedes the consummate acts of British registry at home; this latter registry must state fully the antecedents of the ship—whether foreign built or not. There are also certain perils at sea in which ambiguous conduct is tolerated pro tempore. For instance, in order to secure identity, the name and port of a vessel must be painted in white or yellow letters upon a dark ground, the letters not less than four inches in length. But obliteration or alteration are allowed in order to escape an enemy. It follows as a matter of course that, in such extraordinary cases, ambiguous conduct must be justifiable on grounds of irresistible necessity.
As a general rule, registry de novo takes place if the owner transfers his shares, or if the certificate be lost; there is also another valid cause of registry de novo, which is, if the build or equipment of the ship be so altered as to render the old registry no longer an accurate description of the vessel, otherwise the object of the registry, which is identification, is eluded. But this does not apply to coasting small craft, which would involve endless trouble to Customs' officers and others. A limit having to be drawn somewhere, it has been fixed by the Mercantile Marine Act of the 13th and 14th of Victoria, and the Merchant Shipping Act of the 17th and 18th of Victoria, which are the definitive acts that regulate trade shipping, that registry j8 not required for craft with a deck under fifteen tons burthen, or without a deck under thirty tons burthen.
As we are upon this subject we shall, for the sake of completeness, go into other matters, not perhaps directly affecting relations which usually exist between our warlike and our mercantile navy, but which it is always useful to know. Our navy being the police of our merchant shipping in many distant stations and seas where there is not only no British consul, but not even a civilised population at all, a knowledge of the organic principles of the constitution of British shipping property is therefore an auxiliary branch of our subject, by no means devoid of interest. According to law, a merchant ship is what is called a chattel, personal, or movable—in fact, a thing, the object of which is motion, cannot be, by any possibility, classified as otherwise than a movable, although the dwelling of many men for long periods. As a possession, every merchant vessel is subjected to an imaginary division of sixty-four parts, divisable into the half, or thirty-two sixty-fourths; a thirty-second part,'or two sixty-fourths, &c, &c, &c But there can be no more than thirty-two owners to a ship, except minors, heirs, legatees, and creditors; in which case the rule is not stringent. Nor dues this apply to joint-stock companies, who can hold ships through the intervention of not less than three trustees, and, by the new acts, a corporation may be registered by its corporate name. But although there may be joint possessors of shipping property, they are not partners with the responsibility of partnership according to the bankruptcy laws. The connection relates solely to the ship itself and its adventures, but the general acts of part owners do not entail any responsibility on the other part owners, so that the liability is limited to what relates to the ship, and is not a co-partnery of trading, with its large margin of its synallagmatic reiponsibilities, in the ordinary acceptation of the term partnership.
That is the theory of property in British shipping. When a ship is built it has owners holding it on these conditions, which they proceed to place at the service of other parties for their commercial speculations. When the whole or part of a ship is placed at the disposition of a merchant for mercantile purposes, a document is drawn up with stipulations to secure the interests of the merchant, in return for the money paid as freight, which document is styled the charter-party. But the merchant hiring the vessel has his claims limited by various clauses in the charter party, such, for instance, as "restraint of princes," being exercised upon the owner, preventing him from fulfilling the stipulations of the voyage; this is called,in French jurisprudence, "force majeure;" then, should the goods not be ready, penalties of " demeurage ;" must be paid for detainment of the ship in port beyond the stipulated time. But there are certain cases of delay in which the merchant is not liable for detainment, such as ice, interrupting lighters, &c, &c, &c In these cases, irresistibl••, natural, or artificial causes, and not the supineness of the merchant, has been the cause of the delay. A charter-party secures a whole conveyance, but a bill of lading secures only a place in a general conveyance, and this latter is a document in triplicate, establishing the fact of the shipment of goods to be carried to such and such a port, barring such perils as fire, the king's enemies, &c, &c, &c A bill of lading stands in the same relation to a charter-party ns a ticket in a stagecoach to the hiring of a separate conveyance. The charter-party is like the lease of a house, the bill of lading an agreement for a room in a general lodging-house.
The law provides stringently for the merchant being adequately served by the shipowner. The vessel must be staunch and thoroughly equipped in crew and material. This is obvious, not only as regards the rights of the merchant whose goods are entrusted to a vessel assumed to be seaworthy, but as regards the interest of the underwriters, a point to which we will subsequently come. There must be no delay in the departure on the voyage, nor can the shipmaster loiter or deviate from his course. In the former case the greatest abuse that we know of is at the Dardanelles. There is very often a wind blowing from the sea of Marmora into the Mediterranean, which really prevents vessels from proceeding to Constantinople through this narrow gut; but it constantly happens that the obstacle is not such as may not be easily overcome by an active master. Too often, however, a slight head wind is a pretext for great delay, during which the drunkenness and boon companionship of shipmasters occasions great injury to their employers on the most insufficient pretexts.
The master is bound in the most absolute manner to study, by every possible means, the safety of the ship and cargo. In some extraordinary cases the master may sell or mortgage the ship, that is to say, after heavy disasters, or if he cannot find the funds to prosecute the voyage. But such extreme measures are not to be taken except there be the most absolute and clearly proved necessity. "Suppose, for instance, a ship be in a foreign port, where there is no correspondent of the owners, and no money to be had on hypothecation to put her into repair ; under these circumstances what is to be done? The ship may rot before the master can hear from his owners; and therefore if the necessity were clearly shewn, with full proof, that everything was done optima fide for the real benefit of the owners, the courts of law would sustain a purchase so made. But there must be the clearest proof of necessity; it must be shewn not only that the vessel was in want of repair, but likewise, that it was impossible to procure the money for that purpose." (Judgment, Fanny and £lmira.)
The owner is responsible to the merchant and the master to the owner, but with certain formalities; for instance, if precious minerals be shipped, they must be especially declared; but, when nearing port, faults committed by a licensed pilot do not fall on the owners. They are responsible for the ship being good, and the master being an expert general navigator, but not for the erroneous pilotage of a party whom they take, not on the strength of their own knowledge, but of a general license. As regards remuneration, just as a landlord has a lien on the goods of his tenant, so an owner has a lien on the goods shipped until the freight is paid. On the other hand, no freight is payable if the voyage be not completed, as it denotes the price of complete carriage, not of the mere reception of goods. The exceptions to this are capture under particular circumstances, which we have no space to detail at length, or goods thrown overboard for the general interest. This does not affect the freight, the payment of which is compensated by what is called a general average, that is to say, a compensation pro rata, of a sacrifice made by a part for the benefit of the remainder. But, in order to secure this so-called general average, the sacrifice of the part must be voluntary. Involuntary damage to a ship, for instance, by stress of weather, does not involve an average, but jettison, or the voluntary throwing overboard of a merchant's goods in order to save the rest of the goods, and the ship involves an average which compensates the merchant for his particular loss out of the general benefit which has accrued. But the freight is nevertheless liable, the owner having performed his duty to the best of his ability through the delegation of the shipmaster. It occasionally happens that the navy has important service to render to the mercantile marine in the way of salvage; for this compensation is made to the extent of one-eighth to the royal navy, or one-sixth if by private ships; the cause of the distinction being that the moral obligation is stronger on the navy,who are the natural protectors of our mercantile marine, than on private parties. The measure which accords a certain salvage money to the navy is no doubt a wise one, in stimulating the exertions of our bluejackets to the utmost. The same right falls to the navy on recapture of a vessel taken by the enemy. Formerly the salvor had a lien on goods saved from wreck, but now the Admiralty agent holds what is saved until the amount of salvage be fixed. If under two hundred pounds sterling be claimed, it may be decided by the nearest justice, but if over two hundred pounds, it is subject to the decision of an Admiralty court.
The question of salvage from a wreck brings us to the important subject of Insurance, one of the most intricate branches of commercial jurisprudence, arising from the great variety of incidents under which losses are incurred, and the difficulty that often supervenes as to whose shoulders the loss should be laid on. Sometimes the liable party being the underwriter, in fact generally it is so. But circumstances frequently happen which neutralize the hold which the insured has upon the underwriter, so that the apportionment of compensation for moderate losses has often given rise to protracted and expensive litigation; neither owner, merchant, nor underwriter willingly bearing a loss alone if it can be either thrown upon the others, or partially averted by general average. In order to elucidate this, we may mention that the policy of insurance is the instrument of contract, and that underwriting is the subscription of the writer by the insurer. But in order to limit the security accruing from this contract, it is enacted that no policy can be effected by an alien enemy, except under royal license. Also, as in the case of annuities, the insured must be clearly proven to be interested in the insurance. No gambling or wager insurance is held legal, the institution being not intended to procure gain to a speculator, but to compensate the fair trader for the perils incident to commerce. But a defeasible and inchoate interest is quite insurable, because where there may be a risk, however temporary and terminable, protection by insurance stands to reason, and is good in law. Nor is duplicate or triplicate re-assurance allowable, but only on the death or bankruptcy of the insurer.
As the policy of insurance is a document of great importance, our legislation hedges it round with every respect—for instance, parole evidence is not admissible on a policy, which must be explicit in its terms, and comprehensive in its legal ground. It must state the names of the parties, that is to say, of the insured, or of the consigner, or consignee. The name of the ship is also indispensable. The policy must, moreover, set forth the subject matter of insurance, for instance, an assurance on freight is not covered by a policy on goods. As a general principle, the policy provides a framework or limit to the risk, such as the beginning and termination of the voyage. The risk of a ship terminates when it has been moored twenty-four hours in safety. The risk of goods terminates after landing, but the landing must take place within a reasonable time ; and lighterage is considered to be still at the peril of the shipowner, except the lighter should belong to the consignee.
One of the most important points of a policy is, that the peril should be stated in perfect good faith. There ought to be no concealment, and, in short, the non-communication of an essential fact vitiates the policy. But this concealment, which is supposed to vitiate, must be some essential concealment, that is to say, something which falsifies the aspect of the adventure, or unduly diminishes the appearance of the risk. Honesty is, in fact, the best policy which the insured can pursue towards the underwriter. A valued policy must not be over-valued ; and if the adventure of the merchant be illegal, that is to say, either contravening our own municipal law or the laws of nations, the insurance is vitiated.
A common mode of insurance, is called contingent insurance of an absent vessel, the policy containing the words "lost or unlost," in French mercantile phraseology, " sur bonnes ou mauvaises nouvelles." But this is voided by a fraudulent representation on the part of the insured, who, if he have intelligence of any disaster having happened to the vessel, and then covers himself by an insurance, the underwriter may, on proof of this unfair advantage, resist payment. The law assumes that the chapter of accidents, having closed unfavourably for that ship, her hopes are eliminated; for insurance pre-supposes chances pro and contra. The recovery of insurance on fire peril is also avoided by goods being put on board in a state of eflervesence; in such a case, the risk began outside the limit or framework established by the policy; for insurance, as already stated, comprises perils generated or contingent, after the goods are put on board, and until the arrival in port, Other perils are always stated in the policy, such as the Queen's enemies, pirates, jettison, and barratry, which are frauds by the master or mariners. The essential character of barratry being intentional fraud. Bad seamanship, or negligence, by which a ship or goods may be damaged or lost, not being barratry—a word derived from the Italian word baratto, used in the Venetian "Consolato del Mare."