For the conduct and regulation of affairs on shore, two great legal systems prevail among the white nations: the Common Law of England and the Roman Civil Law. The brown and yellow nations as a rule follow slightly varying forms of the Old Law of China.
Commerce and navigation of the seas, however, are under one general, world-wide code, the Law Maritime, usually called “Admiralty” among English speaking peoples. Its minor ramifications vary in different parts of the world. Each country has legislated for its own merchant marine; but these national variations are practically confined to such matters as “full crew laws,” employer’s liability, slop-chest and lime-juice regulations, radio, etc. The enduring backbone of admiralty law is the same everywhere, practically unchanged for centuries.
Admiralty was first codified for the English by Richard I in a book called the Rules of Oleron. King Richard assembled the materials after his return from the Crusade. He had them from the Saracens, who had had them from the Greeks, who in turn had had them from the Phoenicians in the days when Odysseus was challenging the monopoly of Tyre in Mediterranean markets.
In this country, only Federal courts have jurisdiction in admiralty cases, and appeals must lie with the Circuit Courts of Appeals. The Supreme Court has supervisory jurisdiction.
Many cases are on the border line between admiralty and common law. Such cases may be tried in state courts, if common law covers the point at issue. Admiralty, however, is as remarkable for its direct effectiveness and celerity as common law is for its intricacy and delay. Shipping controversies, moreover, are frequently between citizens of different states. As result, suit is brought in admiralty whenever possible.
The first test of possibility is: Does the matter at issue concern a ship? If so, the law maritime applies. If not, common law must be invoked. Naturally this leads to the question, “What is a ship?”
First, it must be a complete ship. While on the stocks or in the fitting basin, she is not a ship. In commission, while engaged in commerce or navigation, admiralty has exclusive jurisdiction. As she becomes decrepit or is wrecked, that jurisdiction gradually weakens and ceases when she is broken up.
Then the next question is: “What sort of completed floating structure can be called a ‘ship’?”
The Revised Statutes answer this question by the words, “Every description of water craft or other artificial contrivance capable of being used as a means of transportation by water.” The sweeping and sketchy technique characteristic of national legislative bodies is here apparent. That description includes a shaped pine log. “Other artificial contrivance capable” could be held to include a woodshed adrift on a Mississippi flood. So following the Act of Congress we have this rule of court:
The true criterion by which to determine whether any water craft or vessel is subject to admiralty jurisdiction is the business or employment for which it is intended, or is susceptible of being used, or in which it is actually engaged, rather than size, form, capacity, or means of propulsion.
Under this rule it has usually been held that a dredge is a ship, that a floating bathhouse is a ship unless it is permanently moored; that a solid crosstied raft built to transport the lumber it contains, and manned by a crew is a ship; but that a loose run of logs down navigable water is not a ship.
This decided, arises the third question: “Where does admiralty apply?”
Three sorts of waters are included in its jurisdiction:
- The seas.
- Streams where the tide ebbs and flows.
- Waters which carry a substantial water-borne commerce, which includes great lakes and rivers.
A navigable stream may lie entirely within the borders of a single state, yet it will be included in admiralty jurisdiction. The nice question here is to prove whether or not a given stream is “navigable.” The only known test is the stream’s ability to carry a “substantial commerce,” and that is not yet accurately defined.
The subject matters of admiralty jurisdiction are maritime contracts and maritime torts. There is no such thing as a “maritime crime.” Crimes committed at sea or in navigable waters are punishable by the courts having admiralty jurisdiction when the Federal Law provides for such punishment; but normally they are punishable by the state having sovereignty.
A contract is maritime only when it relates to a ship as an instrument of navigation. This does not mean that it must be made or concluded in a ship or on navigable waters. The best criterion in judging whether or not a contract is maritime is the system of law from which it arises. Insurance, for instance, springs from the law maritime. Dower or partnership do not, although the contract may have been concluded on the high seas between seamen.
A tort is a wrong where no contract is involved; a breach of duty imposed by law, not a breach of contract. Consequently, the character of a tort is of little value in determining whether or not it is maritime. The test here is purely a territorial one: it must be committed on navigable waters. A case in point was a wharf and warehouse kindled by a burning ship and destroyed. The fire started upon navigable waters, but the wrong was committed on shore, and admiralty had no jurisdiction.
Now in the above case, against whom would action be brought—the owners, the operating manager, the directors, or the master? In the answer lies the reason why partnership is not a maritime contract. The suit would lie against the ship herself, unless she were so completely burned as to be a ship no longer, in which case it would be brought against those persons standing in lieu of heirs and assigns. The ship is a distinct person to even greater degree than a corporation. She cannot appear in court and must be represented by an attorney; but she is visible and tangible, and can of herself commit a wrong without human agency.
In the famous Hawk-Olympic case, suit was brought by the steamship company against H.M.S. Hawk, not against the Admiralty. Counter suit was brought by the Admiralty against SS. Olympic. In this case, the human owners and masters, in the then state of knowledge, had committed no wrong or error. The Olympic herself was to blame, and the Hawk was helpless. However, the trial brought out the danger of steering in the wake of a great liner; and such a case occurring now would be held negligence on the part of the small vessel’s master.
Under such circumstances, men cannot be held to too strict an account for a ship’s behavior, so the manager (who to this day is known legally as “ship’s husband”) is required only to exercise “due diligence,” etc., while owner’s liability is limited to the amount of investment. If the owners like, they can clear themselves entirely by surrendering the ship to the claimants, passing title and making the ship pay her own bill.
The law maritime endeavors to accomplish justice between litigants with the greatest possible brevity and speed. It follows equitable principles almost to the degree of Solomon’s sword proposing to divide the child. One of its earliest tenets, then, is the doctrine of general average, which has been defined as “a partial loss, voluntarily incurred for common safety, and recompensed by all who are benefited thereby.” General average is older than any known written speech and is probably antedated only by the codes of domestic relations and real property.
II
In order to obtain the benefit of American registry and consequent right to trade between ports of the United States, the ship must, under our laws, be owned and commanded by American citizens. A corporation created under the laws of any state is to a certain extent, a citizen in itself; and in case an American corporation is owner, it is not required that all stockholders be citizens. A single owner, or a partnership who are owners, must be American citizens, and in any case, so must the master. The word “citizen” in this connection does not imply enfranchisement. Minors, married women, and persons under guardianship have always been legal owners; and, if they can comply with the rules, masters. Captain Barney of 1812 fame was a duly qualified master four years before he ceased to be legally an infant.
Title in a ship may be passed in the easy manner of personal property, by simple delivery. It is not necessary that there be any written evidence such as a bill of sale. However, in the United States documents proving title are vital to registry, so the more formal methods of passing title are practically mandatory.
All ships of over twenty tons must be registered. Eight classes of vessels are entitled to American registry:
- Vessels built in the U. S. and owned by a citizen.
- Vessels captured in war, condemned as prize, and owned by a citizen.
- Vessels forfeited and sold for breach of U. S. law and purchased by a citizen.
- Properly certified and inspected vessels, built anywhere, owned by citizens, or by corporations whose president, directors, and holders of control are citizens, to engage only in foreign trade.
- Vessels wrecked in the U. S., bought by citizens, and repaired at a cost of at least three times the appraised value of the wreck.
- Shipping Board vessels sold to a citizen.
- Steamboats employed in a river or bay of the United States owned wholly or in part by a resident alien.
- Yachts owned by citizens and used for pleasure only.
Sale of a ship which will place her within any one of the above classes will entitle her to registry. Sale outside of these classes will void her right. Following the rule of personal property, sale by owners or trustees and administrators does not exempt the new owner from liens existing at the time of sale.
Sales “in admiralty,” ordered by the court through process of litigation, pass absolute title, exempt from any lien or encumbrance. If the sale clause of a preferred mortgage deed be properly observed, sale after foreclosure also passes clear title.
Under stress of circumstances, when unable to communicate with his owners and in his best judgment it is to the owner’s best interest, the master may sell a ship and convey a clear title. When the master lawfully sells a ship, all liens are divested, even if no bill of sale is executed.
Ill
The ship’s husband, or managing owner, is the person contemplated by the Harter Act as the “owner” who must exercise “due diligence.” As noted above, liability of other owners is limited to the amount of their investment or their proportionate share of the ship. Even if the vessel is chartered to another person, the managing owner is not exempt under many conditions. In the matter of bills of lading or contracts of affreightment, the test of responsibility is whether or not the owner has laid the ship on berth. If so, he is responsible. In other contracts or in torts, responsibility lies with the person who victuals, mans, and fuels the vessel, be he owner or charterer.
American law is much more liberal to the owner than the law of other countries. It is much closer to the ancient law in its recognition of the injustice of unlimited liability for happenings beyond the owner’s control. This is in direct conflict with the common law doctrine, however, and the courts are influenced greatly by the common law no matter what the statute may be. Common law considers a ship as personal property, not a person; and it has been some thirty generations since under common law the liability of the owner of a vicious dog could not go beyond the value of the dog itself. It is safe to predict that in time the limited liability of all owners will be successfully attacked in the matter of recourse for torts. As it is, an owner cannot contract himself out of his responsibility for seaworthiness at the beginning of a voyage, nor out of liability for bad stowage and improper loading. The common law is straining to take all limit off these liabilities; but the owner still has one saving hope: his insurance money cannot be sequestered. Successful suitors may take his ship and seize all freight moneys due. The insurance, however, is unassailably the owner’s.
Generally speaking, a lien is created against a ship whenever she accepts a service or does an injury. Such liens are of course in favor of those who perform the service or suffer the injury; but liens are not uniformly enforcible. There is a settled priority of liens, depending upon their character. Liens created by judgment of court as recompense for tort of course take precedence over all others. Others take precedence in the following order:
- Salvage.
- Seamen’s wages.
- Stevedores’ wages if the stevedores were employed by the owner or the master.
- Preferred mortgages.
- Pilotage and towage.
- Supplies and repairs.
- Advances of money.
- Insurance premiums (when, as not always, they constitute a lien).
- Mortgages which are not preferred.
Between liens of the same class, priority follows the old seagoing rule “Obey the last order first.” The date governs; and the later the date, the more pressing the priority of the lien.
Maritime liens are limited to movable things engaged in commerce and navigation. They will attach to a ship or to her gear and appurtenances, but not to a ship totally out of commission. A lien may be divested as a maritime lien by slowness of enforcement or “laches” as it is termed, the delay being prolonged until the ship is dismantled or broken up. This does not mean that there is no remedy, for the lienor can still bring suit at law; but he loses his ability to arrest or libel the ship as a method of enforcing prompt payment; and he also loses the speed and simplicity of a process in admiralty.
When a ship is libeled she cannot move, load, nor discharge until bond is posted for the full amount of the claim. This drastic method of arrest is not confined to important claims. It is within the power of a tired gentleman on the water front to swear a pauper’s oath, thus avoiding court fees, and plaster a ship with a $50,000 libel keeping her immovable until bond is posted, on the ground that the cook threw over a pail of garbage and spoiled his suit of clothes.
Three forms of loans are peculiarly maritime in their nature, although it is probable that one of them—vessel mortage—will soon pass to common law, relaxing admiralty jurisdiction. Vessel mortgage is simply the conveyance of a ship as security for a loan. Under the growing rule, this is a simple chattel mortgage, like other personal property mortgages. Formerly, it was more like a personal indenture, like apprenticeship under the old law merchant.
A bottomry bond is a mortgage-like contract bearing heavy interest where the ship is the sole security and there is no further recourse if she is wrecked or seized. Respondentia is a similar loan upon cargo, repaid if the cargo arrives at destination, not repaid if it is lost. Naturally, bottomry and respondentia are not loans on prime security, and at times interest as high as 25 per cent is demanded.
IV
One section of admiralty law is made necessary by the fact that the master occupies a peculiar position. The owners of a ship are like the owners of corporate stock; the ship’s husband performs the duties of a board of directors, the subordinate officers and seamen are foremen and workmen; but the master has no parallel ashore. He occupies a position as responsible, dignified, and unassailable as any known to the law. Governments themselves rigidly prescribe the qualifications necessary to obtain a master’s certificate; and to employ a master with a current and valid ticket is the first requirement of the exercise of “due diligence” on the part of the ship’s husband. Under the law, the tightest ship is unseaworthy without a legally, as well as actually, competent master, and normally without a substitute for him in case of illness or injury. It is not merely ambition or slow promotion which prompts the display of unlimited master’s license by the first officers of passenger vessels. Due diligence requires a first officer eligible to command.
According to the usual direct maritime custom no formalities are necessary in hiring a master. His contract, even for several years, need not be in writing. He shows his license, he bargains with the owner, and he takes out the ship. From then on, he is the owner for all practical purposes, and to a great extent, he is the law. He is so much more than a mere employee that his salary is a matter of contract only—he has no lien on the ship for it—as has the poorest apprentice. When his ship is tied up his authority is of course largely limited; but at sea, even if the owner be present, it is almost unlimited. As corollary, his responsibilities are virtually unbounded. He cannot limit his liability as the owner can. If a suit against the ship fails, or is considered difficult, suit may be brought against him personally.
As the owner’s agent, the master can bind the owner like any other special agent. He cannot, however, bind the owner beyond the value of the ship and the freight due, he cannot make a promissory note in any but his own name, nor bind the owner for cargo not billed or manifested, nor admit a fraudulent claim nor buy a cargo.
In the exercise of authority over persons he is limited only by his own opinion of necessity. He cannot delegate this authority over persons, nor can he exercise it unless he considers that circumstances warrant it. He is expected to confine himself to warning and reprimand as long as they are effectual; but if he is careful to inform his officers of his intention and to enter his action in the log, he may discipline even a passenger. He must not flog, and his punishments must not be cruel and unusual. He must punish in moderation and upon good reason. He cannot order another person to punish or arrest except as his executive and in his presence and by his direction. Beyond these limits, he is law incarnate.
His contract for wages is enforcible even if not in writing, and is valid even if for more than one year. He has no lien on the ship; but he may garnish freight due or collected. When the amount of his wages is not expressed in the contract, prevailing usage of time, place, and type of vessel is implied therein.
He cannot alter a charter party nor sign a bill of lading for goods wrongly described or not shipped; nor may he issue a bill of lading which conflicts with the terms of the charter. He is required by law to be a competent stevedore, and is responsible for good and sufficient stowage. No matter who hires the stevedore, the master controls him. During the voyage, the master is bailee of the cargo, and safe custody is his duty as well as carriage and delivery. While he is to complete the voyage if possible, he may under pressure of necessity sell or mortgage cargo as well as ship.
The master’s power to create liens is thus very broad indeed.
His log is required to be an accurate history of the voyage, giving explicit detail of all occurrences. In order to be introduced as evidence, the log must be proved like any other document.
To lighten the rigidity of his responsibilities, if there has been damage to ship or cargo not due to negligence of personnel during a voyage, or if the circumstances have been such as to warrant the suspicion of hidden damage, the master upon arrival at destination may go before a notary or consul and “note protest.” This consists in swearing to a plain, accurate, and complete account of the circumstances and conditions which have occurred. In executing this protest, the master is joined by all officers and members of the crew who have knowledge of the facts.
As the master occupies a peculiar position before the law, so at the other end of the scale, does the seaman. The master is held to almost limitless responsibility; the seaman’s responsibility is almost negligible. Seamen occupy a position very close to that of wards of the state. Their improvidence, inability to protect themselves, ingenuousness, and simplicity are matters of judicial notice, and so the seaman lives and moves in an atmosphere of benevolent protection. It is held to be an honorable profession and a necessary one; but the law seems to consider that no man capable of good judgment would enter it. As Dr. Johnson said, “I can conceive of no man’s going to sea if he has wit enough to get himself put in jail!”
The form of contract by which a seaman’s wages are determined, known as “Shipping Articles,” is a carefully standardized form, almost invariably in writing, and very explicit. The seaman casually agrees to have enough knowledge and experience to hold his rating—though you cannot discharge him until you have brought him back home if he hasn’t—and to work when ordered to do so. His wages are secured by a prior lien on the ship and freight, and this lien “attaches to the last plank.” The ship may be destroyed and the seaman still has a lien on the wreckage. Master and ship’s husband are personally liable to the seaman. His wages cannot be attached or garnisheed, and he may sue without giving security for costs. If his wages are overdue he collects double for each day of arrears.
The master may not employ a seaman in any but a legal voyage even with the seaman’s consent. The seaworthiness of the ship, her equipment and provisioning are guaranteed the seaman even more stringently than the charterer. His treatment must be decent and humane, his food plentiful, good, and of considerable specified variety. The voyage for which he ships must be definitely stated and completed without deviation. He is to receive care and treatment if ill, and must be sent home when the voyage is over.
The courts are open to the seaman in many ways for the redress of grievances. This is logical enough—at sea the master is supreme and the seaman cannot refuse duty nor strike back. If the law did not give him extraordinary facilities for redress at the end of the voyage there would be little or no restriction on brutal masters and bucko mates. United States law was once deficient in these remedies and American ships got a bad name as hell-packets the world over. We are now, in reaction, a bit too far perhaps in the other direction, even to the extent of undermining the master’s necessary authority at times.
V
The world has seen code after code of law rise, grow, become top-heavy with statute and delay until modified beyond all recognition. While the three great codes that rule the dry land retain their ancient names and tradition, they are daily being amended, ruled, decided, and legislated into new forms. The wonder then is that the law maritime sways through the centuries practically unchanged, and but slightly modified to local conditions. A few pages back was noted the impending change of a ship’s status before the law, from that of a person to that of a chattel, at which change the courts, following the common law, are aiming. It is here worthy of remark that this is the only change which has been seriously contemplated in nearly four thousand years! Admiralty law has a secret of perpetual youth which the landward codes lack.
Ships to live must move. To keep moving, their disputes must be settled quickly, and the constant concern of the law maritime is to provide a quick and efficient remedy. There is no essential difference in the law itself, but it provides for a vastly accelerated method of application, as may be noted from the forms of proceedings.
Proceedings in admiralty the world over are of two kinds today. In the United States, which is still closest to the old Phoenician model, we have also a third kind, which may be mentioned first, “proceedings in rein.’’ This is directed against the ship as a person to enforce rights in maritime liens. The ship herself is seized, is impleaded as defendant and acquitted or sentenced in her own name. Sales under proceedings in rent divest all liens. This is the peculiarly maritime feature of such procedure, as under common law, only defendant’s title can be affected by a judgment. In general, every maritime lien carries with it the right to bring proceedings in rent to enforce it. This is done by first libeling the vessel and then securing a writ in rein.
Where personal liability exists such as that of master or ship’s husband, and the subject matter is maritime, suit in admiralty may be brought against persons, these suits being called proceedings in personam. Personal liability attaches to the person who signed the contract which has been breached, or committed or instigated the tort out of which the complaint grows. The process here is a simple writ or summons such as is used anywhere.
As noted, owners may take refuge from excessive liability by handing over the ship herself. This is of course limiting their responsibility to the ship’s value. In order to avail themselves of this limitation, proceedings under the limited liability act are necessary. A petition is filed and the ship turned over to a trustee or bond given for her value. All suits are then stayed, and all creditors must present their claims at the hearing. Proceedings under limited liability are thus a sort of maritime bankruptcy. They are the only sort of proceedings under the law maritime which require much more red tape than is necessary to subpoena an ordinary police-court witness.
That is why the law maritime stays young.