countries is, that each part owner shall be answerable in relation to the ship no further than to the extent of his *156 share. The English and *Scotch law, on the other hand, as well as our own, render part owners, in all cases, responsible in solido as partners, for repairs and necessary expenses relating to the ship and incurred on the authority of the master or ship's husband. But where a ship has been duly abandoned to separate insurers, they are not responsible for each other as partners, but each one is answerable for the previous expenses of the ship, ratably to the extent of his interest as an insurer, and no further. By the French law, the majority in interest of the owners control the rest; and in that way one part owner may govern the management of the ship, in opposition to the wishes of fifty other part owners, whose interests united are not equal to his, and make the other part owners to contribute ratably for repairs and expenses. This control relates to the equipment and employment of the ship, and the minority must contribute; but they cannot be compelled to contribute against their will for the cargo laden on board, though they will be entitled to their portion of the freight. If the part owners be equally divided on the subject, the opinion in favour of employing the ship prevails, as being most favourable to the Vinnius, Van Leeuwen's Com. on the Roman Dutch Law, b. 4. c. 2. sec. 9. nol. in Com. Peckii. tit. De Excerc. 155. The latter says, it is neither agreeable to natural equity nor public utility, that each part owner should be bound in solido, or beyond his share. By the French law, part owners, equally with the English and Scotch law, are liable in like manner as partners, for their proportion of all the necessary debts and reasonable expenses incurred for the common benefit. Pothier, de Société, n. 185. 187. Abbott on Shipping, part 1. c. 3. sec. 15. In Louisiana, it is held, that joint owners of a boat are not, merely from that circumstance, responsible in solido; though, if they be associated for the purpose of carrying goods for hire, they become responsible jointly and severally. David v. Eloi, 4 Miller's Louis. Rep. 106. The law of Louisiana follows the French law on this point. Civil Code of Louisiana, art. 2796. b Bladney v. Ritchie, 1 Starkie's Rep. 338. Westerdell v. Dale, 7 Term Rep. 306. Bell's Com. vol. i. 520. 524. Chapman v. Durant, 10 Mass. Rep. 47. Schermerhorn v. Loines, 7 Johns. Rep. 311. Muldon v. Whitlock, 1 Cowen, 290. Thompson v. Finden, 4 Carr. & Payne, 158. Story on Partnership, 589. 619. • The United Insurance Company v. Scott, 1 Johns. Rep. 106. d1 Valin's Com. 575-584. Code de Com. art. 220. 1 Valin's Com. 576-580. interest of navigation.a (1) Many of the foreign jurists contend, that even the opinion of the minority ought to prevail, if it be in favour of employing the ship on some foreign voyage. Emerigon, Ricard, Straccha, Kuriche and Cleirac, are of that opinion; but Valin has given a very elaborate consideration to the subject, and he opposes it on grounds that are solid, and he is sustained by the provisions of the old ordinance and of the new code. Boulay Patys follows the opinion of Valin and of the codes, and says, that the contrary doctrine would enable the minority to control the majority, contrary to the law of every association, and the plainest principles of justice. The majority *not only *157 thus control the destination and equipment of the ship, but even a sale of her by them will bind the right of privileged creditors after the performance of one voyage by the purchaser, but not the other part owners.d The ship's husband may either be one of the part owners or a stranger, and he is sometimes merely an agent for conducting the necessary measures on the return of the ship to port; but he may have a more general agency for conducting the affairs of the vessel in place of the owners, and his contracts, in the proper line of a ship's husband's duty, will bind the joint owners. His duty is, generally, to see to the proper outfit of the vessel, as to equipment, provisions and crew, and the regular documentary papers; and though he has the powers incidental and necessary to the trust, it is held, that • Abbott on Shipping, part 1. c. 3. Molloy, de jure Marit. b. 2. c. 1. sec. 2. 308. Story on Partnership, 609. b Ord. de la Marine, liv. 2. tit. 8. art. 5. tit. Des Propriétaires, and Valin's Com. ibid tome i. 573-584. Code de Commerce, art. 220. • Cours de Droit Commercial Maritime, tome i. 339–347. M. Pardessus, Cours de Droit Com. tome iii. 48, speaks with less decision on the question. a Boulay Paty, ub. sup. 351. Pardessus, tome ii. 27, is, however, of opinion, that they are equally concluded with the creditors by the sale, after one voyage. If the ship be seized for the debt of one of the part owners, and the claim of the others be put in before judgment, the right only of the part owner can be sold; but if not until after judgment, the entire right to the ship is sold, and the other part owners reclaim their share of the proceeds. Boulay Paty, tome i. 227, 228. (1) One joint owner of a vessel having exclusive possession of her, though such possession and control was assumed without the assent of the other owners, is not liable, if by his carelessness and improper conduct the vessel be lost. Moody v. Buck, 1 Sundf. (Law) R. 804. he has no authority to insure or borrow money for the owners, or bind them to the expenses of law suits.a The rights of tenancy in common among part owners, apply to the cargo as well as to the ship, and they have not a community of interest as partners, so as to enable one to dispose of the whole interest, and bind the rights of his cotenants.b ■ French v. Backhouse, 5 Burr. Rep. 2727. Sims v. Britain, 4 B. & Adolph. 375. Bell v. Humphries, 2 Stark. Rep. 345. Campbell v. Stein, 6 Dow's Rep. 134. Bell's Principles of the Law of Scotland, sec. 449. CollStory on Agency, p. 35. Bell's Com. vol. i. 504. b Jackson v. Robinson, 3 Mason's Rep. 138. The concluding part of Collyer on Partnership and of Story on Partnership, have each a valuable chapter on the law of part owners of ships, in which the established law and doctrine of the cases on the subject are clearly and skilfully condensed. LECTURE XLVI. OF THE PERSONS EMPLOYED IN THE NAVIGATION OF MERCHANT SHIPS. (1.) Of the authority and duty of the master. THE captain of a ship is an officer to whom great power, momentous interests and enlarged discretion are necessarily confided; and the continental ordinances and jurists have, in a very special manner, required that he should possess attainments suitable to the dignity and the vastness of his trust. He must be a person of experience and practical skill, as well as deeply instructed in the theory of the art of navigation. He is clothed with the power and discretion requisite to meet the unforeseen and distressing vicissitudes of the voyage; and he ought to possess moral and intellectual, as well as business. qualifications, of the first order. His authority at sea is necessarily summary, and often absolute; and if he chooses to perform his duties or to exert his power in a harsh, intemperate or oppressive manner, he can seldom be resisted by physical or moral force. He should have the talent to command in the midst of danger, and courage and presence of mind to meet and surmount extraordinary perils. He should be able to dissipate fear, to calm disturbed minds, and inspire confidence in the breasts of all who are under his charge. In tempests as well as in battle, the commander of a ship "must give desperate commands; he must require instantaneous obedience." He must watch for the preservation of the health and comfort of the crew, as well as for the safety of the ship and cargo. It is necessary that he should maintain perfect order, and preserve the most exact discipline, under *the guidance of justice, moderation and good sense. *160 Charged frequently with the sale of the cargo, and the reinvestment of the proceeds, he should be fitted to superadd the character of merchant to that of commander; and he ought to have a general knowledge of the marine law, and of the rights of belligerents, and the duties of neutrals, so as not to expose to unnecessary hazard the persons and property under his protection.a *161 *As the master is the confidential agent of the owners, he has an implied authority to bind them, without their knowledge, by contracts relative to the usual em The master of a vessel is liable for indecent and inhuman conduct towards a passenger; and he is responsible, in damages, from injuries resulting from the want of reasonable care, prudence and fidelity. Abbott on Shipping, 5th Amer. edit. Boston, 1846, p. 152, note, p. 218, and note; and see infra, p. 162, n. d. As to his duty as master of a neutral ship in time of war, see the cases collected in Abbott on Shipping, supra, pp. 221, 222, notes. The owner of a vessel carrying passengers for hire, is liable for breaches of duty of the officer to the passengers, equally as he is in the case of merchandise committed to their care. Keene v. Lizardi, 5 Martin's Louis. Rep. 431. Cleirac, in his Jugemens d'Oleron, c. 1, says, that the title of master of a ship implies honour, experience and morals; reverendum honorem sumit quisquis magistri nomen acceperit. The French ordinances of 1584, 1681 and 1725, and the ordinances of the Hanse Towns, of Bilboa, of Prussia and Sweden, have all required the master to be previously examined and certified to be fit by his experience, capacity and character. He was, formerly, when trade was constantly exposed to lawless rapacity, required to possess military as well as ordinary nautical skill: omnibus privilegiis militaribus gaudet. Roccus de Navibus et Nauto, note 7. Emerigon, Traité des Ass, tome i. 192. Valin's Com. liv. 2. tit. Du Capitaine, passim. Jacobsen's Sea Laws, by Frick, b. 2. c. 1. Boulay Paty, Cours de Droit Mar. tome i. 368. 376. 379. Repertoire de Jurisprudence, tit. Capitaine de Vaisseau Marchand. The English writers go directly to the discussion of these subjects, which they handle dryly and with mathematical precision: while the foreign, and especially the French jurists, not only rival their neighbours in the accuracy of their minute details of judicial proceedings and practical rules, but they occasionally relieve the exhausted attention of the reader, by the vivacity of their descriptions, and the energy and eloquence of their reflections. It must be admitted, however, that the decisions of Lord Stowell are remarkable for taste and elegance, and they are particularly distinguished for the justness and force with which they describe the transcendent powers, and define the delicate and imperative duties of the master. And the duties of the master, and particularly the necessity of kind, decorous and just conduct on the part of the captain, to the passengers and crew under his charge, and the firm purpose with which courts of justice punish, in the shape of damages, every gross violation of such duties, are no where more forcibly stated than in Chamberlain v. Chandler, 3 Mason's Rep. 242, in our American admiralty. In the English statutes of 5 and 6 Wm. IV. (see infra, p. 196,) the master is defined to mean every person having the charge or command of any ship belonging to a subject of Great Britain; and seamen means every person employed or engaged to serve in any capacity on board the same; and ship comprehends every description of vessel navigating on the sea; and steam-vessels employed in carrying passengers or goods are trading ships. |