HANDBOOKOF

ADMIRALTY LAW

BYROBERT M. JPJGHES, M. A., LL. D.

OF THE NORFOLK (VA.) BAR

SECOND EDITION

ST. PAUL. MINN.WEST PUBLISHING CO.

1920

CoPYBIGHT, 1001BY

WEST PUBLISHING CO.

COPYBIGBT, 1920BY

WEST PUBLISHING 00.

(BUGBJC8 ADJI.2D ED.)

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...

.. ~ :"'. .: -. ...

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This vol~me is ,.espectfuUy dedicated toHON. N ATRAN GOFF

A genial and noble manAn u,.bane, upright, and able judp

(T)

'"

PREFACE TO THE SECOND -EDITION

Tult main object had in mind in this edition has been tomodernize thoroughly both the text and references, in or-der to bring the treatise up to date and to show the greatchanges in admiralty law which have taken place, both bystatute and by judicial decision, since the publication ofthe first edition.

On account of these changes, much of the first editionhas become obsolete, and discussion of questions then un-settled has been obviated by their subsequent settlement.

It is not claimed as a feature of this book that it citesall or any large proportion of cases on a given subject.Nothing is more laborious or difficult than the selectionof the references. Frequently the two or three ca~es citedin a footnote are the survivors of a dozen or more that hadto be examined or weighed. The rank of the court, thereputation of the judge, the reasoning and style, all mustbe considered and balanced. Printing an opinion may ren-der it more accessible, but does not add to its value. Thereis no alchemy in print to transform a baser metal into gold.

This edition has had the general practitioner in viewrather more than the first edition, which was largely in-tended as a text-book for law schools._ The Table of Illustrative Cases contained in the first edi-

tion has been omitted, but many leading cases are printed incapitals throughout the text as a means of directing specialattention to them.

Though it is impossible to make the paging of the newedition conform to the old, it has been found feasible topreserve the original numbering of the black-letter sections.

(vti)

viii PREll'AOB

This will facilitate referring from one edition to the other-a matter of some importance, as the courts have frequentlydone the author the honor of citing the work.

The author desires to make special acknowledgment toProfessor George B. Eager, Jr., of the University of Vir-ginia, for valuable suggestions, and to the publishers fortheir readiness at all times to aid with all descriptions oflabor-saving devices.

NOUOLK, VIaGIIUA,January 12, 1920.

PREFACE TO THE FIRST EDITION

THB germ of this treatise is a series of lectures on admiral-ty law, which the author has been giving to the senior lawclass at Washington and Lee University for the past fewyears. His experience there has emphasized the need ofa text-book on marine law. Probably the lack of such atext-book is the explanation of the scant attention given tothe subject in the law schools; but its constantly increasingimportance seems now to demand more elaborate treat-ment than it has heretofore received. This is especiallytrue in view of the recent important legislation bearing up-on the subject, and its intimate connection with many oth-er topics which are usually treated more fully, such as thelaw of carners and the general substantive law in relationboth to contracts and to torts. To meet the need of sucha text-book, this treatise has been prepared. It is intendedto be elementary, and is so arranged that those schoolswhich give but slight attention to the subject of admiral-ty can use it by omitting certain chapters, and those whichdesire to give it more emphasis can supplement the textby the use of the table of leading cases, which are printedin large capitals throughout the book, and for which a spe-cial index has been prepared, giving an outline of the pointspassed upon by them.

The author hopes, also, that the book will be found use-ful to the very large class of general practitioners who wishto be in position to answer ordinary routine questions ofadmiralty law arising in practice. The failure of the lawschools to treat this subject at any length results in thefailure of the young bar generally to know anything about

(!x)

x PREFACIlI

it when they first commence to practice. It is hoped thatthis book will enable them to acquire a bird's~eye view ofthe subject during those leisure hours which usually fallheavily upon the younger practitioner, and that it will alsoenable the more experienced general practitioners who donot make a specialty of admiralty to advise, at least on cur-rent questions, without the necessity of consulting a spe-cialist.

In view of the elementary character of the work, the au-thor cannot hope that the specialist in admiralty will findanything novel in his treatment of the subject, unless, per-haps, in one- or two chapters where the law is not yet crys-tallized into very definite shape,-such as the chapter ondeath injuries and the chapter on the subject of da~ages,and where the author's views may be of interest. At thesame time, it is believed that the insertion in the appendixor in the main text of practically all the statutes which theadmiralty practitioner usually needs will make it a usefuivade mecum, obviating the necessity of handling, either inthe office or at court, the cumbrous volumes in which thesestatutes are fo~nd. A list of the acts printed in full will befound in the index under the title "Statutes."

The author begs leave to express his acknowledgmentsto many friends for suggestions and aid. He also wishes toacknowledge publicly the numerous courtesies received atthe hand of the publishers.

TABLE OF CONTENTS

CHAPTER I

011' TilE ORIGIN AND HISTORY OF THE ADMIRALTY ANDITS EXTENT IN THE m'HTED STATES

SecUon1. Origin and History....2. The Admiralty Classics .3. The Colonial Admiralty Jurisdiction, and Constitu-

tional grant ot "Admiralty and Maritime Ju-risdiction" ............

4. The Waters Included..............5. The Craft Included ~ .

CHAPTER II

Pace1-44--8

~1010--1314-17

OF THE ADMIRAIll'Y JURISDICTION AS GOVERNED BY THESUBJECT-MA'.rTER

6.7.~10.

ll.12-19.

Cases In Contract and Cases In 'rort...Tests of Jurisdiction .

Contracts of Seamen........................Master's Right to Proceed In Relll for his Wllgl'S ..Pllotage ..........

CHAPTER III

18-2218-2223-2828-3131-40

OF GENERAL AYERAGE A~D lIARI~E I~SURANOE

20. "General Average" Defined.......21. Requisites of General Average...........22. "Marine Insurance" Defined ................23. Maritime Character of Contracts .......24. Insurable Interest .......................25. Conditions In Contracts of Insurance ...,26. .Mlsrepresentatlon and Concealment

HUGHES,ADM. (2D ED.) (xl)

41-4444-M51-m51-5252-M55-595fH)9

TABLE OF CONTENTS

BeetlCIIl27.28.29.80.

3t.32.33.84-35.36.37.sa.39.40.41.

8eaworthtll

TABLIll OJ' CONTIllNT8

IIecUoa p..,.M. ~wace--"8erYlee't Deftned 12'-125

18-69. BespoD8lbUtty as Between Tug and Tow..... ~12980. Degree of Care Required of Tug...... 1-18061. For Whose Acts Tug or Tow LIable. . 131

CHAPTER VIOF SALVAGE

~ !iatore and C]~unda.. 182-18463. "salvage" Defined-Elements of Service......... 1M'-14164. The Award-Amount in General..... " . 142tl5. Elements of Com~sationand Bounty. 142-1~66. Incidents of the Service.......... 146-14967. Salvage Contracts.... 149-16088. Salvage AppOrtionment. . . . . . 15G-15189. Salvage Chargeable as between Ship and C8.I'IO... 1G2-1l58

CHAPTER VIIOJ' CONTRACTS OF AFFREIGHTMENT AND CHARTER

PARTIES

89.

70-72.

86.87.88.

75.76.

17-78.79.BO.8L82.83.84.85.

"Contracts of AJrrelghtment" Defined. and Distin-guished from Charter Parties........... 1.54-155

73. Warranties Implted in Contracts of Affreightmentagainst Unseaworthiness and Deviation 155-156

'14. Mutual Remedies of 8h1p and Cargo on Contractsof Affreightment............................. 156-157

Entirety of Affreightment Contract.............. 168AppOrtionment of Freight ........ 159-160Ship as Common Carrier....................... lID-161Blll of Lading-Making and Form in General.... 161-162

Negotlablltty .... . . . . . . . . 162-163Exceptions in GeneraL ......... 163-164Exceptlon of PerUs of the Sea 165--166

"Charter Parties" Dellned ......... 166-168Construction of Charter Parties ............ 168-171Conditions Implied in Charter Parties of Sea-

worthiness and against Deviation.... 171-173Cancellation Clause in Charter Parties 174-175Loading Under Charter Parties........ 1'1c)-1'16Execution of Necessary Documenta under Charter

Parties .................... 1'1'1-178Cesser Clanse In Charter Parties . 1'18-179

.xiv TABLK O~ CONTHNT8

CHAPTER VIIIOJ' WATER CARRIAGE AS AFFECTED BY THE HARTER AOl'

OF Jl'EBRUARY 13, 1~1).1 (27 Stat. 445 [U. S. Comp. 8t.section II S029-S0:J5]) Pace

9()...81. Policy ot Act ...... ; 180-18:;92. Act Appllcable Only betwet>n Vessel Owner and

Shlppt'r ........................... 183-18793. Vesllehl and VO;)'agel4 to whl('h Act 18 Applicable. 187-1~94. Relative Measure ot Obligation as to Handling the

Cargo and Hundllng the ShIp............. 188-1008G. Netacht'd Structurl's in Navigable Waters ...... 202-203101. Torts Arising trom Reilltion of Crew to Vessl'l or

Own('r ................................... 204-209102. Per!lOnltl '1'orts Arising from Relation of Passen-

!tel'S to \'('ssd , .. ~210103. Obllgut!on8 to I'cr"ons R!lthtfully on Vesst>l, but

Bl'lIrlnlt no Rt'latlon to It 210-212104. LIability as betW('('1I \'es8('1 and Indl'pl'ndent Con-

trllctor ........................ " . 213-214105. IlO('trlne of Imputt'(l Kegllgence... 214-21:'106. MIR('('llnneou8 Marine Torts ....... 215-220101. Doctrine ot Contrihutory NegUgt'nce. . . 221

CHAPTER XOF THE RIGHT OF ACTIO~ IN ADMIRALTY FOR INJURIES

RESULTIXG FA.TALLY

108. Survival ot Action for Injuries ReaultIng In Death-The Oenl'ral Common-Law Doctrine. 222-221

109. The Civil-Law Doctrine.. 222-221110. The Continental Doctrine 222-221

II

TABLE OF CONTENTS xv

113.114.115.116.111.

8eetlOJl Pap111. The EngUsh Doctrine as to Survl....l In Admiralty 227112. The Amerl('an Doctrine as to Survival In Admir-

alty-Independent of Statute 22&-230Under State Statutes........ 230-236Under Congressional Statutes.. 236-241

The Law Governing......... 242-243Etrect of Contributory Negllgence.. 243-244Construction of Particular Statutes.............. 244

CHAPTER XIOF TORTS"TO THE PROPERTY, AND HEREIN 011' COLLISION

118. Rules for Preventing Colllsions, the Different Sys-tems, and the Localltles where They Apply. .. 245-250

119. Preliminary Deftn1tions.............. ~251120. DtstInctive LI~hts Prescribed for Different Ves.

TABLB OF CONTBNTB

IMat1Cla Pace139. The General Precaution Rule........ 296140. Lookouts .................... 296-m141. .Anchored Vessels............. 299-803142. Wrecks. . . . . . . . . . . . . . . . . . . . . . .. 8Cl6--IJCH148. The Stand-by Act.............................. S06-a07

CHAPTER XIVOF DA'lUGES IN COI.LISION CASES

144. Recovery Based on Negligence.............. 808-309146.. InevItable Accldent or Inscrutable Fault..... 309-312146. One Solely In Fault.................. ..... 812147. Both In Fault.................................. 312-318148. Rights of ThIrd Party where Both In Fault.. 318-319149. Contribution between Colliding Vessels-Enforce-

ment In Suit against Both................ 820lIfO. Enforcement by Bringing In Vessel not Party

to Suit................................... 320-8211Gl. Enforcement by Independent Sult..... 821-326llS2. Measure of Damages........................... 826lGS. When Loss TotaL......................... S26-3271G4. When Loss Partial........................ 828-330lG5. Remoteness of Damages-Subsequent Storm.... S3O-SS1IG6. Doctrine of Error In Extremis SSl~

CHAPTER XVOF "fES8EL OWNERSHIP INDEPENDENT OF THE LIMITED

LIABILITY ACT

157. Method by Which Title t) Vessels may be Acquir-ed or Transferred ........................ SS3-886

168. Relation of Vessel Owners Inter Sese 3S6-34O100. Relation of Vessd Owners as Respects ThIrd Par-

ties ............... . . . . . . . . . . . . . . . . . . . . .. 841-34-4

CHAPTER XVIOF THE RIGHTS AND LIABILITIES OF OWNERS AS AF-

FECTED BY THE LWITED LIABILITY ACT

160. History of LimitatIon of LlablUty In General.~161. HIstory and Pollcyof Federal Legislation..... 346-3M162. By Whom LImitation of LIability may be Olalmed 8M

TABLE or CO~TENT8 XVll

IIecUoD Pap163. AgaInst wbat Liabilities Limitation may be

Claimed ..................... 8l>5-851164. Privity or Knowledge of Owner................. 351-364.65. The Voyage as the Unit 364-365166. Extent of Liability of Part Owners. . . . . .. .. . . 365167. Measure of Liabl1lty-Tlme of Estimating Values 365-366168. Prior Liens , 366-368169. Damages Recovered from Other Yessel . 369-311110. Freight .. , '" . .. .. .. ....... 371171. Salvage and Insurance........... 372--373172. Procedu~Tlme for Taking Advantage of Statute 373-314113. Defense to Suit against Owner, or Independent

Proceeding ......... 814-375. 174. Method of Distribution......................... 81~

CHAPTER XVIIOF THE RELATIVE PRIORITIES OF MARITIME LIENS AS

AMONG EACH OTHER AND ALSO AS BETWEEN THEMAND NONMARITIME LIENS OR TITLES

175.176-171.

178.179.180.

181.182.183.184.

186.186.181.188.

Relative Rank as Affected by Nature of Claims.. 376-377Contract Liens In General.................. 377Seamen's ,rages ......... 378-380Salvage .......................... 380--382Materials, SuppIles, Allvunces, Towage, Pilot-

age, and General A.verage.......... 382-384Bottomry ................... 384-386Nonmaritime Liens and Titles............... 386Tort Liens................................. 387-391

Relative Rank as Affected by Date of Vestlng-Among Liens of Same Character. . . . . 391-393

Among Liens of Different Character . 393-394Between Contract and Tort Liens............ 394As between Tort Liens............ 39-!-397 ,

Relative flank as Affected by Suit or Decree. 897-398

CHAPTER XVIIIA SUMMARY OF PLEADING AND PRACTIOE

189. Simplicity of A.dmlralty Procedure....... 399-400190. Proceedings in Rem and In Personam. . . 4OO-4OS191. The Admiralty Rules of Practice................ . 408192. The Libel .. . . .. .. .. .. .. .. .. .. 403--4OCS

litrGlIE8,ADK.(2D KD.}---b

xviii TA~LE OJ' CONTENTSBectlOD Pqe

193. Amendments . . . . . . . . . . . . . . . . . . 405194. The Process , 4();l.~195. ])ecrees by I>etault......................... 408-409196. The ])efense ................................ 409-410197. The TrIal . . . . . . . . . . . . . . . . . . . . . . . . . . .. 410-411198. Evidence ................................... 411199. Attachments Iq Admiralty. . . . . . . . . . . . . . . . . . . . . . 412200. Set-Off.. .. .. . . . .. . .. .. .. .. .. .. .. . . .. .. .. .. .. 412201. LlmltatiODS ..................... 418202. Tender.. .. .. .. .. . .. . .. .. . .. .. .. .. .. . .. . . . .. .. 413203. Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 414204. Enforcing Decrt"es ............................ 414-415205. The Fifty-Ninth Rule.......................... 415206. The Courts havllljt Admiralty Jurisdiction. " ... 41fi-418207. The Proceas of App('ul......................... 418208. Questions of Fa(t 011 Appeal. ....... , 41~209. ~evr Evidence .... ~ ... 420-422

APPENDIXL The Mariner's Compass...... 4242. The Salvage Act of August I, 1912....... , 425-4268. Statutes Regulating Navigation, IncludIng:

(1) The International Rules ................ 426-44fi(2) The Rules for Coast and Connecting Inland

Waters ........................... 441)-461(3) Lines between International and Inland Rules. 462-468(4) The Lake Rules ....................... ~79(5) The Mlas1ssfppl Valley Rules .................. 479-488(6) The Act of Mar('h 3, 1899, as to Obstructing Chan-

nels 48&-493(7) The Stand-By Act of September 4, 1890. 493--494

4. The Limited Llablllty Acts Including:(1) The Act of March 3, 1851, as Amended......... 494-496(2) The Act of June 26, 1884...... . .. .. .. .. .. .. .. . 497

Ii. section 941, Rev. St., as Amended, Regulating Release ofY('asels from Arrest, on Bond or Stipulation...... 497-498

6. Statutes Regulating E\'ldence In the Federal Courts... 498--00!7. The Handvrrltlng Act of February 26, 1913. ......... 5048. Sults In Fonna Pauperis. . . . . . . . . . . . . . . . . . . . . . . 5059. certain Admiralty Suits against the United Htates.. I5()6.-OU

10. The Admiralty Rules of Practice 61l-a;U

t

HANDBOOKOF

.

ADMIRA'1/fY': LAWSECOND EDiTION

CHAPTER I

Oll' THE ORIGIN AND HISTORY OF THE ADMIRALTY .ANDITS EXTENT IN THE UNITED STATES

L Origin and History.2. The Admiralty Classics.3. The Colonial Admiralty Jurisdiction, and Constitutional Grant of

"Admiralty and Maritime Jurisdict1on."4. The Waters Included.G. The Craft Included.

ORIGIN AND HISTORY

1. The admiralty law originated in the needs of commerceand the custom and usage of merchants.

In the dawn of recorded story, when mythology and his-tory were too intermingled to separate the legendary fromthe authentic, commerce by means of ships was drawingthe nations together, and beginning to break down the bar-riers of prejudice and hostility due to the difficulty and dan-ger of land communication. The voyage of the Argonauts,the 'l'rojan Expedition, the wanderings of Odysseus,though military in the songs of Homer, were probably as

HUGBl:S,ADll.(2D ED.)-l

2 ORIGIN AND HISTORY OF THE ADHIRALTY (Ch.lmuch for exploration as for conquest; merchants andwarriors were combined in one person of necessity. Theenterprising Rhodians had not only a commerce, but aCode, in which is found the germ..Qi" t.he law of generalaverage. The Phrenician t-rad~s were carriers for thewise Solom~n, JlJJ(t~at1'te~::~ra~fi~g' c~lonies throughouttpe .~~~~t'~rr,ne~: :Tfi~lr Carthagenian descendants were

'. : ':.: ~Qrt;ny:~ticttssors. Until Rome copied their trireme, her': :: domain was limited to Italy. When maritime skill supple-

mented military prowess, and placed at her command newand easier lines of advance, she overran the world. Themart followed the camp; for it is a teaching of history thatin the providence of God the havoc of war opens new ave-nues for the arts of peace.

In the Middle Ages the Italian republics became the car-riers of the world, and reached a high plane of enlighten-ment. The Saracen c"ivilization could compare favorablywith that of the West; and the Italians, in their constantwarfare against Mohammedanism, acquired and assimilat-ed this civilization, and spread it over Europe. Venice,Florence, Pisa, and Genoa furnished the mariners who scat-tered the gloom of the Dark Ages; who civilized the oldworld, and discovered the new.The Conflict between the English Common Law and Ad-

miralty CourtsThe student who observes the present commerce and

maritime power of England finds it hard to realize how re-cent is its development. Yet our English ancestors werenot by nature addicted to maritime enterprise. The Anglo-Saxon loved the quiet recesses of the forest, and was re-luctant to venture on the water. He could not be made tounderstand that his only security against the Danes, whoharried the British coast, was to meet them at sea. Thenaval victory of Alfred was sporadic, and the sea power ofthe Danes enahled them to overrun and conquer England.Even the D~nish conquest did not infuse sufficient mari-

1) ORIGIN AND HISTORY stime blood to overcome the Saxon propensity to remain onterra firma. During many months William the Conquer-or was engaged in fitting out his fleet and army in sight oftheir coast, yet no effort was made to harass him on thevoyage, or resist his landing. It is difficult to understandthat the vanquished of Hastings and the victors of theHogue were of the same nation.

The Norman conquerors added a sea-faring strain toAnglo-Saxon bleod, and the subsequent wars with Francedeveloped to some extent a taste for the sea; but, despitethe trade with the Baltic nations, the Mediterranean re-mained the great center of world commerce. The discov-elY of America directed the gaze of navigators beyond thePillars of Hercules and made their aspirations worldwide.

Prior to the reign of Elizabeth, many continental nationssurpassed England in maritime enterprise. Such were theSpaniards, Portuguese, Dutch, and even the French. Sheit was who first grasped England's true policy, and theage of Bacon and Shakespeare in letters was the age ofDrake and Frobisher and Raleigh in navigation. The dis-graceful reign of her successor, James 1., brought about apartial reaction. Lord Coke, the apostle of the commonlaw, was the leader in the attack on the admiralty, is-suing prohibitions to its courts, and in every way curtailingits jurisdiction. His persecution of Raleigh, the great nav-igator, was the personification of his hatred for the neworder of things.

In consequence of this common-law hostility, Englishcommerce was long retarded, just as was the jurisdictionof the English admiralty. The reigns of the Stuarts up tothe English commonwealth were noteworthy for a tenden-cy to cultivate friendly relations with Spain, thus checkingthe enterprise of the great sea captains who had long maderelentless war against her. Charles II. and James II. weremore subservient to France than their ancestors had beento Spain, so that the steady growth of English commercehardly antedates the eighteenth century:

ORIGIN AND HISTORY OF THE ADMIRALTY (Ch.lMeanwhile the common-law judges had put fetters upon

the marine law of England which could not be so easilycast off. Anything continental or international in originmet their determined resistance. It was long before theEnglisQ. courts were willing even to admit that the law andcustom of merchants, to which England owes its greatnessof to-day, was a part of English law; or that it was morethan a special custom, necessary to be proved in each case.In consequence of this sentiment, the English admiraltyjurisdiction at the time of the American Revolution wasmuch restricted, being narrower than the continental ad-miralty, and far narrower than the present jurisdiction ofthe American and English admiralty courts, In Englandan act of parliament was necessary to enlarge their re-stricted jurisdiction to its ancient extent.1 In the UnitedStates the same result has been achieved, so far as neces-sary, by much judicial, and some congressional, legislation.

THE ADMIRALTY CLASSICS

2. The sources of the admiralty law lie in the reason ofman as educated by international trade relations,and are evidenced by the great admiralty classics.

The law of the sea is not the product of anyone brain,or anyone age. It is the gradual outgrowth of experience,expanding with the expansion of commerce, and fitting it-self to commercial necessities. It is practically a branch ofthe law merchant, on account of their intimate connection;

~ 1 The modem English admiralty jurisdiction Is regulated bystatute. The principal are: 3 & 4 Viet. c. 60; 17 & 18 Viet. c. 1M,I 476; 24 &: 25 Yiet. c. 10; 31 & 32 Viet. c. 71; and 32 & 33 VIet. c.51. They will be found In the Appendix to Abbott's Law of Mer-chant Ships and Seamen. The admiralty jurisdiction, whUe muchextended by these enactments, still dltrers sharply from the Amer-ican admiralty jurisdiction. Some of these ditrerences will be point-ed out in other connections.

2) THE ADMIRALTY CLASSICS 5and grew, not from enactment, bqt from custom; not fromthe edicts of kings, but from the progressive needs of so-ciety.The Ancient Codes and Commentators

Yet there are various compilations and treatises whichevidence the maritime law of their" respective dates, andare valuable for reference, because they did not originatethe provisions on the subject, but reduced to concrete form\he customs and practices which had grown up independ-ent of codes and commentators. These are the great class-ics of marine law, which occupy to it the relation that Ba-con's Abridgment or Coke's and Blackstone's writings bearto the common law of England.

The Roman Civil Law contains many provisions regu-lating the. rights and responsibilities of ships.

The Digest quotes from the ancient Rhodian Code itsprovision as to contribution of interests in general average.It contains provisions also in relation to the liability ofvessels for injury to cargo, for punishment of thieves andplunderers, and for borrowing on bottomry or responden-tia.s

The Consolato del Mare is a collection of marine lawsantedating the fifteenth century, though neither its authornor its date is known. It is probably a compilation of themarine customs then in vogue among the trading nationsof Europe, and may be found in the collection of maritimelaws made by Pardessus.

The Laws of Oleron take their name from the island ofOleron off the French coast, and show the customs thenprevailing in respect to many of the most important sub-jects relating to shipping. They are supposed to have beencompiled under the direction of Eleanor of Aquitaine, who,as queen, first of France and then of England, and as re-gent of the latter during the absence of her son Richard

2. s DIg. 14, 2; .4, 9; 22, 2; 47, ~; 47, 9.

ORIGIN AND HISTORY 011' THE ADMIRALTY (Cb.lCreur de Lion on the Crusades, was impressed with theimportance of such a work.

The Laws of Wisbuy, a city of the island of Gothland, inthe Baltic, are similar to the Laws of Oleron, and wereprobably based upon them.

The Ordonnance de la Marine of Louis XIV vindicatesFrance from the charge that her people are not fitted formaritime enterprise. It was published in 1681, and is alearned and accurate digest of marine law and usages, andthe best evidence to this day of the extent and nature ofthe admiralty jurisdiction.

The Laws of Oleron, the Laws of Wisbuy, and the Or-donnance were printed as an appendix to Peters' Admiral-ty Decisions. They have been reprinted, along with the

.Laws of the Ranse Towns and other interesting matterof the same sort, as an appendix to volume 30 of the FederalCases, thus rendering them easily accessible.

In 1760, Valin, a distinguished advocate of Rochelle, pub-lished a commentary on the Ordonnance, in two quartovolumes, which ranks in authority as high as the Ordon-nance itself.

Cleirac, another French writer, published at Bordeaux,about the middle of the seventeenth century, his work "Uset Coustumes de la Mer," which contains the Laws ofOleron, of Wisbuy, of the Ranse Towns, and many othercontinental provisions, with valuable annotations of hisown.

The treatise of Roccus "De Navibus et Naulo," the writ-ings of Casaregis on mercantile subjects, and those of Po-thier in the same field, especially that on maritime hiring,are equal in authority to any of those previously named.'

An Instructive aecount of the ancient admiralty classics and oftheir relative value w11I be found In Mr. Justice Story's Review ofJnrobsen's Laws of the Sea, first publtshed In the North AmericanReview In 1818, and hIs RevIew of Phlll1ps on Insurance, first pub-l1shffi in the North American Review, 1825. These were reprinted

2) THE ADMIRALTY OLASSICS 7The English Authorities

Selden's Mare Clausum (1635), Godolphin's View of theAdmiral Jurisdiction (2d Ed. 1685), the productions ofSir Leoline Jenkins (partly found in Wynne's Biographyof him published in 1724), and the second volume ofBrowne's lectures on the Civil and Admiralty Law give aview of the development of the admiralty law in Englandand its subsequent restriction by the warfare of the com-mon-law judges.

More recently the publication by the Selden Society ofthe two volumes of Select Pleas in Admiralty ha~ thrown .a flood of light on the early history of the English admiral-ty system. These two volumes came out in 1894 and 1897and constitute volumes 6 and 11 of the publications of theSociety, but are numbered independently. The introduc-tions to the two volumes by Mr. R. G. Marsden are a price-less contribution to the literature on the subject. The in-troduction to the third edition of Roscoe's Admiralty byMr. T. L. Mears (reprinted in volume 2, p. 312, of SelectEssays in Anglo-American Legal History) will well re-pay careful perusal; and the first chapter of the recentwork of Mr. E. C. Mayers on Admiralty Law and Practicein Canada (Carswell Co., Ltd., Toronto, 1916) is a usefuldiscussion of the later English admiralty jurisdiction in thelight of the more recent publications.

The value of many recent English treatises to the stu-dent or practitioner is diminished by the space given to thediscussion. of statutes. But the later editions of Abbott onShipping, Arnould on Marine Insurance, Carver on Car-riage by Sea, Kennedy on Merchant Salvage, Marsden onCollisions, and Scrutton on Charter Parties are of greatassistance.

in the collection of his Miscellaneous Writings published by Mun-roe, Boston, 181m, at pegeB 245 and 294. respectively. See, also, hisInaugural Address as Dane Professor of Law at Harvard, pages440, 470, ot the same work.

8 ORIGIN AND mSTORY OP THE ADMIRALTY (Ch.lThe American Authorities

In the United States the marine classics are mainly de-cided cases. The only treatise covering the whole field isthe excellent two-volume work of Parsons on Shipping andAdmiralty, which cannot be commended too highly. Itsonly fault is that it was published fifty years ago. Thereare other good works on separate departments of marinelaw; such as Marvin's work on Salvage, Dunlap's Admiralty Practice, Betts' Admiralty Practice, Spencer's workon Collisions, and especially Benedict's treatise on Admi-ralty Practice, which is indispensable on the subject ofwhich it treats.

As to the European codes and works above named, itmust be borne in mind that they are only persuasive au-tho.rity. They are evidence of the general maritime law,and not necessarily of our maritime law, except in so faras they have been adopted by us. As was said by Mr.Chief Justice Tilghman in an early Pennsylvania case;"They and the commentators on them have been receivedwith great respect both in the courts of England and theUnited States, not as conveying any authority in them-selves, but as evidence of the general marine law. Whenthey are contradicted by judicial decisions in our own coun-try, they are not to be regarded, but on points which havenot been decided they are worthy of great consideration."

Morgan &: Price v. Insurance Co. of North America (1807-) 4 Dall.455, 1 L. Ed. 907, cited In 30 Fed. Ons. 1203. See, also, LOTTAWANNA, 21 Wall. 558, 22 L. Ed. 654; Scotland, 105 U. S. 24, 26 L.Ed. 1001; Elfrida, 172 U. 8. 186, 19 Sup. Ot. 146, 43 L. Ed. 413.

I 3) COLONIAL ADJlJRALTY JURISDICTION 9

THE COLONIAL ADMIRALTY JURISDICTION,AND CONSTITUTIONAL GRANT OF "ADMI-

RALTY AND MARITIME JURISDICTION"3. The grant of "admiralty and maritime jurisdiction" to

the federal courts in the Constitution means thejurisdiction exe{cised by the colonial and state ad-miralty courts, and not the narrower jurisdictionof the English courts.

Prior to the Revolution, the several colonies had admi-ralty courts by virtue of commissions from the crown.These commissions conferred a jurisdiction much widerthan that of the same courts in the mother country.'

On the Declaration of Independence, each colony becamea separate nation, and organized its own system of courts.Although the abuses of power in revenue matters had beenone of the grievances which led to the Revolution, and con-tributed an indignant sentence to the Declaration of Inde-pendence, the different colonies practically adopted the ju-risdiction of the colonial vice admiralty courts for theirown, impressed by its advantages to their nascent shipping;and they disregarded the confined limits of the British ma-rine tribunals. The Virginia statute of 1779 is a good illus-tration:

"Be it enacted by the general assembly, that the court ofadmiralty, to consist of three judges, any two of whom aredeclared to be a sufficient number to constitute a court,shali have jurisdiction in all maritime causes, except thosewherein any parties may be accused of capital offenses, nowdepending- and hereafter to be brought before them, shalltake precedence in court according to the order in time oftheir appointment, and shall be governed in their proceed-

I 3. A.n Idea of Its extent may be gathered from Lord Com-bury's vice admiral's commission, set out In extenso In section 124et seq., Ben. Adm.

10 ORIGIN AND HISTORY OF TBlI: ADJflBALTY (Ch.lings and decisions by the regulations of the Congress ofthe United States of America, by the acts of the general as-sembly, by the Laws of Oleron and the Rhodian and Im-perial Laws, so far as they have been heretofore observedin the English courts of admiralty, and by the laws of na-ture and of nations."

These courts were in active operation from the date whenthe colonies declared their independence in 1776 to theadoption of the Constitution in 1789.

THE WATERS INCLUDED4. The waters included in the admiralty jurisdiction are all

waters, Whether tidal or not, navigable for com-merce of a substantial character.

Repudiation of Ancient Tidal Test for Test of NavigabilityArticle 3, 2, of this instrument extended the judicial

power of the United States, inter alia, "to all cases of admi-ralty and maritime jurisdiction." It was long assumedwithout examination that the measure of the jurisdictionreferred to in this clause was that of the English admiraltycourts at the time of the Revolution. Their standard wasthe reach of the tides. In the contracted islands of themother country there were no navigable waters that werenot tidal. And so, when the question first came before theSupreme Court, it decided that the domain of the Americanadmiralty was bounded by the ebb and flow of the tide. TBut this rule soon became embarrassing. In Peyroux v.Howard 8 the court found itself gravely discussing wheth-er a slight swell at New Orleans could properly be calleda tide. Our early statesmen, living in weak communitiesstrung along the Atlantic Coast, did not realize the possi-

10 Hen. St. p. 98-I 4. 1 Thomas J eft'erson, 10 Wheat. 428, 6 L. Ed. 358.8 7 Pet. 342, 8 1.. Ed. 700.

4) THE WATERS INCLUDED 11bilities of the boundless West, inaccessible from its barrierof mountains and savages. Jay, our first Chief Justice, hadbeen willing to barter away the navigation of the Missis-sippi, and even to restrict the export of cotton, which laidthe foundation of our national wealth. The mighty riversand their tributaries which gave access to a continent, theGreat Lakes of our northern border, which had witnessedsome of our most notable feats of arms, were by this tidaltest relegated to a place with the English Cam and Isis-not wide enou'gh for a boat race. The restriction could notbe endured, and so the court gradually broke away fromEnglish traditions. In Waring v. Clarke' it decided thatour Constitution did not mean to adopt the English stand-ard, and that the admiralty could take cognizance of con-troversies maritime in their nature, though they arose inthe body of a county. This first step was but a preliminary to entire emancipation, and its corollary was THEGENESEE CHIEF,to which repudiated the tidal test en-tirely, and held that the true criterion of jurisdiction waswhether the water was navigable.

Since then the court has frequently said that the grant ofjurisdiction in the Constitution referred, as to subject-mat-ter, not to the curtailed limits of the English admiralty, butto the system with which its framers were familiar; andth is was the colonial and state admiralty, which was prac-tically coincident with the ancient continental admiralty.llWhat are Nmigable Wafers

It is not easy to say as matter of law exactly what wa-fters are navigable in this sense. Care must be taken todilOtinguish between the clause granting the admiralty ju-risdiction to the federal courts and the clause granting tocongress the power to regulate interstate and foreign com-

.

.. is Ho\\". 441, 12 L. Ed. 226.1012 How. 443, 13 I,. Ed. 1058.11 LOTTAWANNA. 21 Wall. 558,22 L. Ed. 654; Ex parte Easton,

95 (T. S. 68, 24 L. Ed. 373.

12 ORIGIN ARD HISTORY OF THE ADHIRALTY (Ch.lmerce. The Supreme Court has frequently said that theyare independent of each other. Yet the admiralty jurisdic-tion is at least as extensive as the commercial clause. Itextends to waters constituting actually or potentially alink in interstate commerce and navigable by craft of suffi-cient bulk to be engaged in interstate commerce, thoughsuch waters lie entirely within the limits of a state andabove tide water, and though the voyage be between portsof the same state.12

Under the commerce clause the phrase "navigable wa-ters" has been often considered. THE DANIEL BALLtawas a proceeding against a steamer for violating the fed-eral license laws. She navigated entirely within the stateof Michigan, on a short river, and drew only two feet of wa-ter. The river emptied into Lake Michigan. In the courseof the opinion the court said: "Those rivers must be reO'garded as public navigable rivers in law which are naviga-ble in fact. And they are navigable in fact when they areused, in their ordinary condition, as highways for com-merce over which trade and travel are or may be conduct-ed in the customary modes of trade and travel on water.And they constitute navigable waters of the United States,within the meaning of the acts of Congress, in contradis-tinction from the navigable waters of the states, when theyform in their ordinary condition by themselves, or by unit-ing with other waters, a continued highway over whichcommerce is or may be carried on with other states or for-eign countries in the customary modes in which such com-merce is conducted by water."

In Leovy v. U. S.u the court upheld an act of the Loui-siana Legislature authorizing the damming of a small bayou

12 IN RE GARNETT, 141 U. S. I, 11 Sup. Ct. 840, 35 L. Ed. 631;Harrison v. Flte, 148 Fed. 781, 78 C. C. A. 447; llanlgault v. SPrings,199 U. S. 473, 26 Sup. Ct. 127. 50 1.. Ed. 274.

11 10 WalL M7, 19 L. Ed. 999.u 177 U. 8. 621, 20 Sup. Ct. 701, 44 L. Ed. 914.

4:) THE WATERS INCLUDED 13for the purpose of reclaiming the lands bordering thereon.It was shown that only fishermen and oyster boats used it.The court said that, in order to be public navigable waters,there should be "commerce of a substantial and permanentcharacter conducted thereon."

The admiralty jurisdiction does not extend over the wa-ters of a lake entirely within the borders of a state, andwithout any navigable outlet. In United States v. Bur-lington & Henderson County Ferry Co.u Judge Loveseems to think that such waters are without the admiraltyjurisdiction, though the point was not directly involved.In Stapp v. The Clyde 18 the question was necessarily in-volved, and the court decided that such waters were not ofadmiralty cognizance.

Artificial as well as natural water ways come within thejurisdiction of the admiralty. In The Oler 1T this was de-cided as to the Albemarle and Chesapeake Canal. After-wards, ill Ex parte Boyer,18 the Supreme Court upheld thejurisdiction in the case of a collision between two canal boatson the Illinois and Lake Michigan Canal, an artificial Canalentirely within the limits of a state, but forming a link ininterstate' communication, though the vessels themselveswere on voyages beginning and ending in the state.

n (D. C.) 21 Fed. 331.18 43 MlDn. 192, 45 ~. W. 430. See, also, Rockaway, 156 Fed.

692; Robert W. Parsons, 191 t;. S. 17, 24 Sup. Ct. 8, 48 L. Ed. 73.They are certainly not within the commerce clause of the Consti-tution. Veazie v. Moor, 14 How. 568, 14 L. Ed. 545. Moore v.American Transp. Co., 24 How. 1, 16 L. ill. 674-

1 T 2 Hughes, 12, Fed. Call. No, 10,485.n 109 U. S. 629, 3 Sup. Ct. 434, 27 L. Ed. 1056. See, also, Robert

W. Parsons, 191 U. 8. 17, 24 Sup. Ct. S, 4S L. Ed. 73.

l' ORIGIN AND BISTORY OF THE ADMIRALTYTHE CRAFT INCLUDED

(Ch.l

s. The character of craft included in the admiralty jurisdic-tion is any movable floating structure capable ofnavigation and designed for navigation.

The evolution of the ship from the dugout or bark canoeto the galley with gradually increasing banks of oars, thento the sail vessel with masts and sails constantly growingand replacing the human biceps, then to the self-propellinJ{steamers, reckless of ocean lanes and calm belts, is one of

the miracles of progress. As to all of these the jurisdictionof the admiralty is clear. But h~rdly less important, atleast in local commerce, are the various nondescripts whichdot our harbors, like lighters, rafts, car floats, floatingdocks, dredges, and barges with no motive power aboard.

Here, again, it must be remembered that the admiraltyclause of the Constitution, and not the commerce clause,is being considered. A vessel need not necessarily be en-gaged in commerce to come within the jurisdiction, though,if it was, the jurisdiction would be clear. The true testis capability of navigation and the animus navigandi. Thevery same structure, when permanently attached to the shore,and thereby becoming a practical extension of the shore, with-out any intent of moving, might be out of the jurisdiction; andyet, if temporarily attached, and designed to be shifted fromplace to place by water, it might be within the jurisdiction.

'the leading case on this subject is COPE v. VAL-LETTE DRY-DOCK CO.19 There the court held thatthe jurisdiction did not include a floating dry dock perma-nently attached to the shore at New Orleans, and not in-tended for navigation. It had been moored to the sameplace for twenty years. Had it been designed to be towed

, around to difI~rent place,,') in the harbor, that would have

I 5. 19 119 U. S. 625, 7 Sup. Ct. 336, 30 L. Ed. 501.

~ 5) THE CRAFT INCLUDED 15\ been navigation sufficient, and in such case the court would

probably have taken jurisdiction. It is difficult to reconcilewith this the case of Woodruff v. One Covered Scow,so inwhich Judge Benedict took jurisdiction of a floating boat-house permanently attached to a wharf to afford access toshore for persons from small boats. As the Vallette Dry-Dock Case was only decided on January 10, 1887, and thiscase on February 18, 1887, it is likely that the former wasnot known to Judge Benedict.

Under the jurisdiction are included lighters of the sim-plest kind, for they are considered to "appertain to travelor trade or commerce." 11

A floating elevator, used for the storage of grain, butdesigned to be moved from place to place in a harbor, isinc1uded.2I

There are many cases extending the jurisdiction overdredges, both those which lift the mud by dippers, anddeposit it in scows to be towed away, and those whichwork on a sucking principle, drawing the mud from thebottom, and delivering it on shore by long lines of pipe.u

The same is true of floating movable derricks, and piledrivers.u

0n the other hand, a marine pump dredge, capable ofbeing moved from place to place, but resting on piles, and

20 (D. C.) 30 Fed. 269.21 General Cass. 1 Brown. Adm. 334, Fed. Cas. No. 5,307; Wllmlnjl;-

ton ill. C.) 48 Fed. 566.22 Hezeklah Baldwin, 8 Ben. 556. Fed. Cas. No. 6,449.28 Saylor v. Taylor, 23 C. C. A. 343, 77 Fed. 476; McRae v. Dredg-

Ing Co. (C. C.) 86 Fed. 344; Mac, 7 P. D. 126; Richmond DredgingCo. v. Standard American Dredging Co., 208 P'ed. 862. 126 C. C. A. 20.

U Maltby v. A Steam Dt>rrlck. 3 Hught>s, 477, Fed. cas. No. 9,000;Lawrence v. Flatboat (D. C.) 84 Fed. 200; Routhem Log Cart. &: Sup-ply Co. v. Lawrence. 30 C. C. A. 480, 86 Fed. 907; Ralthmoor (D. C.)186 Fed. 849 (reversed on another point. not affecting this question,241 U. S. 166, 36 Sup. Ct. 514, 60 L. Ed. 937).

16 ORIGIN AND HISTORY OF THE AD1lIIRALTY (Ch.lnot floating, has been held to be excluded from admiraltycognizance.U

In The Public Bath No. 13:1S Judge Brown held that abath house built on boats, and made to shift from place toplace, is within the jurisdiction. This, and U. S. v. Bur-lington & Henderson County Ferry CO.,2T are good illustra-tions of cases where the courts treat navigability irrespec-tive of trade or commerce as the proper test of the admiral-ty jurisdiction in contradistinction to the powers of Con-gress under the commerce clause of the Constitution.

Judge Cushman has recently held that an aeroplane isnot a subject of admiralty jurisdiction.28

In construing the meaning of the word "ship" under theEnglish statutes conferring jurisdiction on the admiraltycourts, the House of Lords has held that a floating gas buoy,which had been broken loose, and had been saved, couldnot be libeled for salvage, as it was not designed either fornavigation or for use in commerce.29

The Hendrick Hudson 80 was a dismantled steamer,which was being used as a hotel. While being towed toanother place, it was in peril, and salvage services wererendered to it. The court held that it was not within thecognizance of the admiralty.

This decision would seem to be out of line-with the morerecent authorities. Whether the structure was a hotel or asteamboat, it was engaged in actual navigation. Had theVallette Dry Dock been so engaged, the Supreme Courtwould probably have sustained the jurisdiction.

211 Big Jim (D. C.) 61 Fed. 503-18 (D. C.) 61 Fed. 692.liT (D. C.) 21 Fed. 331.21 Crawford Bros. No.2 (D.O.) 215 Fed. 269.l!9 Gas Float Wbltton :Ko. 2, [1897] A. C. 337. But the English~urts have sustained jnrlsdiction over a hopper barge. Mndlark,[1911] P. 116.

303 Ben. 419, Fed. Cas. :Ko. 6,355.

5) THE CRAFT INCLUDED 17A ship becomes such at her launching. Prior thereto she

is a mere congeries of wood and iron.11Rafts

Whether a raft is such a structure as to come under thejurisdiction cannot be considered settled. The ValletteDry-Dock Case seems, in its reasoning, to assume thatships and cargoes of ships alone come under the jurisdic-tion, and that floating merchandise, never in any way con-nected with a ship, is not included. Yet in its concluding

'paragraph it mentions the case of rafts, and cites severalwell-considered decisions sustaining the jurisdiction, butwithout expressing either approval or disapproval.

In Seabrook v. Raft of Railroad Cross-Ties,81 Judge Si-monton, in sustaining jurisdiction, says that rafts were theoriginal methods of water locomotion. As they are nav-igated, and designed to be navigated, and not tied perma-nently to one place, like a dry dock, the weight of reasoningis in favor of the jurisdiction in such case.

11 Tucker v. Aleundro1f, 183 U. S. 424, 22 Sup. at. 195, 46 II. Ed.264; North Paciflc S. S. Co. v. Hall Bros. Marine Ry. & Shipbulld-Ing Co., 249 U. S. 119, 89 Sup. Ct. 221, 63 L. Ed. 510.

81 (D. C.) 40 Fed. 596. See, also, Mary (D. C.) 128 Fed. 609; GasFloat Whitton No.2, [1897] A. C. 887.

Hl1GBE8,ADK. (2D ED.)-2

18 ADJlIRALTY ,JURISDICTION

CHAPTER II

(Ch.2

OJ!' THlIl ADMIRAUrY romSDICTION AS GOVERNED BY THE8UJUECT-MATTER

6-7.

8-10.11.

12-19.

0... ID Contract and Cases In Tort.Testa of Jur1ad1ct1on.

Contracts of Seamen.Kaster's BIght to Proceed In Rem for Bfa Wqes.P1lotap.

CASES IN CONTRACT AND CASES IN TORT

6. The sources of admiralty jurisdiction. as in other branch-es of substantive law, naturally subdivide intorights arising out of contract and rights arising outof tort.

(a) Rights arising out of contract are maritime whenthey relate to a ship as an instrument of commerceor navigation, intended to be used as such or tofacilitate its use as such.

(b) Rights arising out of tort are maritime when theyarise on public navigable waters.

7. TESTS OF JURISDICTION-The test of jurisdictionis different in each of these classes of cases.

(a) The test in contract cases is the nature of the trans-action.

(b) The test in tort cases is the locality.

In the warfare made by the common law upon the admi-ralty courts, one 'line of attack was the contention thatonly contracts were maritime which were made upon thesea, and to be performed upon the sea; thus attempting toapply to contractual rights, as well as torts, the test of lo-cality. Under the English decisions this distinction ex-cluded many subjects of marine cognizance which the C~:m-

6-7) CASES IN CONTRACT AND CASES IN TORT 19tinental admiralty covered. In some of the earlier deci-sions of this country traces of this distinction may also befound. But it is now settled that the test in matters ofcontract is irrespective of locality, and depends upon thenature of the transaction. In England itself the restrictionbecame so intolerable that an act of parliament was nec-essary, and accordingly the acts defining the jurisdiction ofthe admiralty courts largely restored the ancient admiraltyjurisdiction of the English courts.What Contracts Are Maritime by Natf4reThe courts have in many instances said whether certain

particular controversies were maritime or not, but no sat-isfactory definition has yet been enunciated which will en-able the student to say in advance whether a given caseis marine or not. In DE LOVIO v. BOIT/ Mr. JusticeStory, in holding that contracts of marine insurance arewithin the admiralty jurisdiction, discusses witli greatlearning the early extent of that jurisdiction, naming inmore than one connection the general subjects which writ-ers and codifiers had enumerated, and says that it includes"all transactions and proceedings relative to commerce andnavigation"; also. "all contracts which relate to the naviga-tion, business, or commerce of the sea."

In New England Marine Ins. Co. v. Dunham the courtsays: "The true criterion is the nature and subject-matterof the contract as to whether it was a maritime contract,having reference to maritime services or maritime trans-actions."

In Zane v. The President, Mr. Justice Washington says:"If the subject-matter of a contract concerned the naviga-tion of the sea, it is a case of admiralty and maritime juris-diction, although the contract be made on land." The casewas a proceeding by a material man.

.. 6-7. 12 Gall. 398, Fed. Cas. No. 3,776.2 11 Wall. I,' 20 L. I~d. 90.34 Wash. C. C. 45:l, Fed. Cas. No. 18,201.

20 ADMIRALTY JURISDICTION (Ch.2Wortman v. Griffith was a suit by the owner of a ship-

yard for the use of his marine ways by the vessel. Mr. Jus-tice Nelson decided that the admiralty had jurisdiction,saying: "The nature of the contract or service, and notthe question whether the contract is made or the serviceis rendered on the land or on the water, is the proper testin determining whether the admiralty has or has not juris-diction."

Under the test as laid down, the fact that a ship may be~ incidentally connected with the transaction does not make

the matter maritime.In Ward v. Thompson there was an agreement between

certain parties to carry on a trade venture, one contri~utinga vessel and the other his skill and labor, on the basis of adivision of profits on a fixed ratio. The court held that thiswas nothing but an ordinary common-law agreement ofpartnership, and was not made maritime by the fact that aship was part of the partnership property.

On the same principle a traffic agreement between a rail-road company and the owner of a number of steamers tooperate as a throug-h line of transportation, dividing thereceipts, is not maritime. 4I, Bogart v. The John Jay T was a proceeding in admiralty

.3 Blatch!. 528. Fed. Cas. No. 18,057. See, also, North Pac. S. S.Co. v. Hall Bros. }farine Ry. & Shipbuilding Co., 2'19 U. S. 119, 39Sup. Ct. 221. 63 L. Ed. 510.

'22 How. 330, 16 L. Ed. 249. Graham v. Oregon R. & Nav. Co. (D. C.) 134 Fro. 454.T 11 How. 399, 15 L. Ed. 95. In England, independent of statute,

admiralty had no jurisdiction to enforce a mortgage. By 3 &: 4 Viet.e. 6IS, 3 the mortgagee was allowed to intervene when the shtp wasunder arrest in a case of which the court had jurisdiction. And by24 Viet. c. 10, 11. any duly registered mortgagee was allowed toinstitute an independent proceeding. Mayer, Admiralty Law &: Pro10; Atalanta, 5 Can. Ex. 57. As Parliament 18 not bound by thelimitations of a written constitution, It can make a thing marine bystatute which Is not 80 by nature. But the grant of admiralty juris-diction in this country 18 constitutional, and Congress could hardly

f 6-7) CASES IN CONTRACT AND CASES IN TORT

,

21

to foreclose a mortgage on a vessel. There was nothing toshow that the money had been borrowed for any purpose(:onnected with the use of the vessel, and the only connec~tion the vessel had with it was the fact that it was his se-curity for the debt, just as any other piece of personal prop-erty might have been. It was held that admiralty had nojurisdiction.

In Minturn v. Maynard 8 the Supreme Court decided thatan admiralty court had no jurisdiction of mer,e matters ofaccQunt, though they were accounts relating to a ship.

In the Illinois.8 a party had leased the privilege of run-ning a bar on a passenger steamer plying between Mem-phis and Vicksburg. When the vessel fell into trouble, andwas libeled by some other creditor, he, too, came into theadmiralty court, and claimed that this was, in effect, a char-ter of part of the vessel, and that he had a remedy in ad-miralty. The court, however, could not see that a transac-tion of this sort had any maritime characteristics, and de-{:ided that there was no jurisdiction.

In Doolittle v. Knobeloch 10 the owner of a vessel had em-ployed the libelant to purchase a steamer for him, and tolook generally after his interests in bringing the steamerfrom New York to Charleston, though not in connectionwith any navigation of the vessel. He attempted to collecthis money by a proceeding in rem against the vessel and in

give a mortgagee the right to Institute an independent prOCE'edingin view of the dects10n of the Supreme Court that such a right Is notby nature marltimf>.

The right to Intf>rvene In a proceeding by a holder of a maritimetight of action Is conferred by rule 43 of the Supreme Court, andrests on a different basIs.

1117 How. 477, 15 L. Ed. 235; Zillah May (D. C.) 221 Fed. 1016.Here, too, express jurisdiction has been conferred In England by 24Viet. c. 10, I 8, as to registered ships. Lady of the Lake, L. R. 3A. '" E. 29.

2 Flip. 383, Fed. Cas. No. 7,005.10 (D. C.) 39 Fed. 40. But an agreement to undertake the re-

sponsib1l1ty of navIgating a vessel back to her home port Is marltime. Laurel (D. C.) 113 Fed. 373.

22 ADMIRALTY JURISDICTION (Ch.2personam against the owner. The court decided that itwas not an admiraltv contract.\ If the principal co~tract is maritime, jurisdiction is notousted by the fact that some incidental question growingout of it would not be maritime in case it stood aloneY'On the other hand, preliminary contracts looking to aformal contract are not maritime, though the contract it-self, when executed, may be so. For instance, a contract ofcharter party partly performed is maritime, but a prelimi-nary agreement to make a contract of charter party is notmaritime.1I

The same transaction may be maritime in one case andnot maritime in another. As emphasizing this distinction,there is the maxim that "a ship is made to plough the seas,and not to lie at the walls." Hence, wharfage rendered toa ship while loading or unloading, or in her regular use asa freight-earning enterprise, is a maritime contract.II

On the other hand, wharfage to a ship laid up for thewinter while waiting for the season to open is not mari-time.u

This distinction is further illustrated by the decisions inrelation to watchmen on vessels. Those who are watchmenwhile vessels are in port during voyages are consideredas having made a maritime contract, but those who havecharge of her while laid up have no such contract.1I

11 Charles F. Perry. 1 Low. 475, Fed. Cas. No. 2,616; Nash ,..Bohlen (D. C.) 167 Fed. 427.

12 Andrews v. Essex Fire 41: Marine Ins. Co., 3 Mason, 6, Fed. Call.No. 374; TrIbune, 8 Sumn. 144, Fed. Cas. No. 14,171; Oakes v. Rich-ardson, 2 Low. 178, Fed. Cas. No. 10,390; Eugene, 87 Fed. 1001, 31C. C. A. 345; Steamship Overdale Co. v. Turner (D. C.) 206 Fed. 339.

18 Ex parte Easton, 95 U. S. 68, 24 L. Ed. 373; Braisted v. Den-ton (D. C.) 115 Fed. 428.

U C. VanderbUt (D. C.) 86 Fed. 785. Wharfage in its proper sensemust not be confused with rent due tor the lease ot a wharf. Thislatter is not maritime, being simply a contract relating to real es-rote. James T. Furber (D. C.) 157 Fed. 126.

H Erlnagh (D. C.) 7 Fed. 231; Fortuna (D. C.) 206 Fed. 573.

118-10) CONTRACTS OP SEAllEN

CONTRACTS OF SEAMEN

23

8. Every person (apprentices excepted) who shall be em-ployed or engaged to serve in any capacity 011board" a vessel shall be deemed and taken to be aseaman.

9. Seamen are the wards of the admiralty, and have a priorclaim for their wages.

10. Their contracts are governed by the ordinary rules ofcontract except as modified by statute, and by thedisposition of the courts to guard them againstimposition.

The contracts of seamen have always been consideredamong the most important in the admiralty, as a good crewis the most important outfit that a ship can have. Herconstruction may be the best that modern ingen"uity mayproduce. Yet, unless she has a brain to direct her course,and skillful hands to regulate the pulsations of her enginesand manage her numerous cOplplicated machinery, her pro-peller is paralyzed, her siren is dumb. It is not the gun, butthe man behind it, that is formidable; and in modern asin ancient times the personal equation is still controlling.On this account the utmost encouragement and the fullestprotection to seamen are the established policy of the ad-miralty law. 'Who are Seamen

As the courts have been liberal in their construction ofthe word "ship," they have been equally so in deciding whatconstitutes a "seaman," in the modern sense. The termis not limited to those who actually take part in the naviga-tion of the ship. Everyone who is regularly attached tothe ship, and contributes to her successful handling, is aseaman, though he may not know one rope from another.

The definition above given is the exact language of scc-

.AJ)lIDULTY lUBISDICTION' (Ch.~

tion 4612 of the Revised Statutes as amended.u For in-stance, as a dredge has been considered a ship, so the menwho operate it are held to be seamen.1T

Fishermen and sealers, who go for that purpose, are heldto be seamen, though they may do other incidental work.U

The wife of the cook, engaged by the master as secondcook, is a mariner in this sense.U So, too, the clerk of asteamboat.lo So, too, a bartender.11 So as to the ship'ssteward.21 And the wireless operator.II

On account of the peculiar character of seamen, thecourts scrutinize closely their contracts, in order to protectthem from imposition. They are improvident and wild,easily imposed upon, and the constant prey of designingmen. Their rights, in modern times, are largely governedby statute. In the United 'States the statutory provisionsregulating them are contained in sections 4501-4612 of theRevised Statutes. This codification of the law in relationto them, however, has been much amended and liberalizedby. subsequent legislation. The acts modifying them willbe found in the notes.U A detailed discussion of the pa,r-

It 8-10. 10 U. S. Comp. St. I 8392-17 Saylor Y. Taylor, 77 Fed. 476, 23 C. C. A. 343; Ellis v. U. S.

206 U. S. 246, 27 Sup. Ct. 600, 51 L. Ed. 10,17, 11 Ann. CllS. 589.18 Minna (D. C.) 11 Fed. 159; Ocean Spray, 4 Sawy. 100, Fed.

Cas. 10,412: Domenico v. Alaska Packers' Ass'n (D. C.) 112 Fed.554: Alaska Packers' Ass'n v. Domenico, 117 Fed. 99, 54 C. C. A.485; North Alaska Salmon Co. v. JArsen, 220 Fed. 93, 1M 0. Co A.001.

18 James H. Sbrlgley (D. C.) ro Fed.. 287.20 Sultana, 1 Brown, Adm. 13, Fed. Cas. No. 13,602.J1 J. S. Warden (D. C.) 175 Fed. 315.It Pacific Mail S. S. Co. v. Schmidt, 214 Fed. 513, 130 O. C. A.-

657.28 Buena Ventura (D. C.) 243 Fed. 797.24 Act June 9, 1874 (18 Stat. 64); Act June 26, 1884 (23 Stat. 53);

Act June 19, 1886 (24 Stat. 79): Act Aug. 19, 1890 (26 Stat. 320):Act Feb. 18, 1895 (28 Stat. 667); Act Marcb 3, 1897 (29 Stat. 687);

f 8-10) CONTRACTS OF SEAllEN' 25ticular effect of those amendments is impracticable for want-of space.Sta.tutory Provisions

The first provisions relate largely to the method of theirengagement, requiring shipping articles carefully preparedand publicly executed, and providing penalties for the vio-lation of such articles. In cases of ambiguity in construingthese articles, the courts lean in favor of the seamen."

The next class of provisions relates to seamen's wagesand effects. It was an old maxim of the English admiraltylaw that "freight is the mother of wages," though therewere many exceptions to it, and its true limits have notbeen always understood. This rule no longer prevails inthe United States under the statutory provisions referredto. The ancient rule and its limitations may' be seen fromthe opinion of Mr. Justice Woodbury in the Niphon's-Crew."

In order to protect a seaman from imposition, the stat-.utes render void any agreement by him waiving any reme-dies for his wages, and forbid any assignment or attach-ment of them.IT

Under the same policy, disproportionate advances to sea-men beyond wages earned are made unlawful. The actgoes so far as to forbid such advances in our ports to sea-men in foreign ships, though it has been ~eld inapplicable

Act December 21, 1898 (30 Stat. 755). Act March 4, 1915 (38 Stat.1164), known as the La Follette Act, materially changes the abovein the interest of seamen. As modified, they are collected in titleLIII of the U. S. Comp. St. II S287-8392a.

21 Wope v. Hemenway, 1 Spr. 300, Fed. Cas. No. 18.042; Cata-lonia (D. C.) 236 Fed. 554-

28 Brunner, Col. Cas. 5'77, Fed. cas. No. 10,277.IT Despite earlier conflict of authority, It is now settled. that thlB

applies not only to prellDrlnary attachments, but to garnishments orsupplementary proceedings after judgment. WUder v. Inter-IslandSteam Nav. Co., 211 U. S. 239, 29 Sup. Ct. 58, 63 L. Ed. 164, 15

.Ann. Cas. 127. .

(Cb.1to advances in foreign ports, whether to American or for-eign ships.u

Under the practice of the admiralty courts, a seaman isnot required to give the usual stipulation for costs when helibels a vesseP But, in order to protect the vessel frombeing arrested on frivolous charges, the law requires that,before issuing any libel, he must cite the master to appearbefore a commissioner to show cause why process shouldnot issue. The commissioner thereupon holds a sort ofpreliminary examination, and issues process if he thinksthere is sufficient justification for it.IO

The statutes also contain elaborate provisions for theseaman's discharge, and for his protection in relation to thecharacter of the vessel, the character of the food and medi-cine furnished, his clothing, etc., for which reference must'be made to the statutes.P,io,ity of Lien

Under the same policy, the admiralty courts have alwaysheld that, as a general rule, the wages of seamen constituteamong contract claims the first lien upon the ship, and ad-here to it as long as a plank is left afloat.at

There may be circumstances in which other liens wouldbe preferred to seamen's wages, as where salvors bring aship in, and thereby save the ship for the seamen as well asothers; but these cases are exceptional, and cannot be dis-cussed, at least in this connection, in detaipl

21 Act March 4, 1915, II 4, 11 (U. S. Compo St. II 8322, 8323);Sandberg v. McDonald, 248 U. S. 185,39 Sup. Ct. 84. 63 L. Ed. 200;Neilson v. Rhine Shipping Co., 248 U. S. 205, 39 Sup. Ct. 89, 63 L.Ed. 208; Pinna (D. C.) 252 ],'ed. 203.

20 Act July 1, 1918, c. 113, I 1 (U. S. COmpo 8t. Ann. Supp. 1919, 163Oa)..

10 Rev. St. U. S. II 4546, 4547 (U. S. Comp. St. II 833lS, 8336).11 Ocean Spray, 4 Sawy. 105. Fed. Cas. No. 10.412.12 Relf 1'. The Marla, 1 Pet. Adm. 186, Fed. Cas. No. 11,692. See

(>

118-10) OONTBA0T8 OP SEA.JIBlf 27EfJforcing Obedietlce

In one respect the contracts of seamen vary materiallyfrom ordinary contracts. The general rule in the usualcontracts of hiring is that suit or discharge is the only rem-edy for its violation. On the other hand, the importance "fpteserving discipline upon a vessel, and of performing theservices necessary for her protection, and for the protectioneven of life, justified the master, under the law as it longprevailed, in" using physical force to a reasonable extent inorder to enforce obedience. He could inflict blows for the "purpose of compelling obedience to an order, or put muti-nous seamen in irons or in confinement as a punishment, orforfeit their wages for misconduct. In fact, under exception-al circumstances of aggravation, he might take life. But theother officers of the ship could not punish for past offenses.They could only use a reasonable amount of force to com-pel obedience.as

But under the recent legislation all forms of corporalpunishment are prohibited, and the only punishment thatthe master can inflict for disobedience of orders is to putthe seaman in irons till the disobedience ceases, or put himon bread and water for a limited time. He can no longerhave a deserter apprehended, but the only punishment fordesertion is total or partial forfeiture of wages and effects.16Scamen of Foreign Vessel

As a rule, the court will not take jurisdiction in contro-versies between the seamen of a foreign ship and her mas-ter or the ship. Many of the countries have express treatystipulations giving sole cognizance of these disputes to their

II U. 8. 1'. Alden, 1 Spr. 93, Fed. Cas. No. 14,427; ReI! 1'. The:Marfa, 1 Pet. Adm. 186, Fed. Cas. No. 11,692; Turner's Case, 1Ware, 77, Fed. Cas. No. 14.248: Macomber v. Thompson, 1 SllJDD.384, Fed. Cas. No. 8,919: ROBERTSON v. BALDWIN, 163 U. S. 27lS,17 Sup. Ct. 326, 41 1.. Ed. 715: Stout 1'. Weedln (D. C.) 95 Fed. 1001.

14 Act March 4, 1915, c. 15..', I 9, 38 Stat. 1167 (U. S. Comp. at. I8391); Ex parte Larsen (D. C.) 233 Fed. 708.

28 ADlIIRALTY JURISDICTION (Ch.2'consuls. In cases where such a treaty exists, the courtwill not interfere at all."

In cases where there is no treaty expressly forbiddingit, the courts have discretion whether to take jurisdictionor not, but they will not take jurisdiction unless under ex-treme circumstances of cruelty or hardship.Ie

In considering this question, the sailors are presumedto be of the same nationality as the ship, no matter whattheir actual nationality.IT

When the court takes jurisdiction under such circum-stances, it applies by comity the law of the vessel's flag.1S

MASTER'S RIGHT TO PROCEED IN REM FOR HISWAGES

11. Under the general admiralty law, the master has noright to proceed in rem for wages. Whether hehas when a state statute purports to give it is un-settled.

The master is not allowed, under the general admiraltylaw, to proceed against the vessel either for his wages orany disbursements that he may make on her behalf.

One reason assigned for this exception is that the masterdoes not need such a remedy, as he may pay himself outof the freight money. But the difficulty about this is thathe does not always have the right to collect it, and, in fact,under modern conditions, very rarely has that right.

A better reason is his relation to the ship. _He is thettustee or representative of the owners in distant ports.

III Montapedla (D. C.) 14 Fed. 427; Albergen (D. C.) 223 Fed. 443.18 BELGENLAND, 114 U. S. 355, I) Sup. Ct. 860, 29 L. Ed. 152;

Alban! (D. C.) 169 Fed. 220.IT In re Ross, 140 U. S. 454, 11 Sup. Ct. 897, 85 L. Ed. 581; Ester

(D. C.) 190 Fed. 216.88 Belvidere (D. C.) 90 Fed. 106; Bannlngton Court (D. C.) 252

Fed. 211.

.'

11) llASTER'S mGHT TO PROCEED IN REM FOR WAGES 29\.rhe law looks to him to protect their interests, and they

have the right to assume that he will protect their inter-ests. When a ship herself is sued, process is served uponher alone, or her master, and not upon her owners. In suchcase the master is their representative for the very purposeof protecting the ship and safeguarding their interests.Hence, if he were allowed to sue his own vessel, he mightconfiscate her at the very time when they think he is pro-tecting her, and so he has no right to proceed against theship which is intrusted to him to protect."

It is a more difficult question whether a state statute cangive a master a right of action against the ship. In theRaleigh Case, just cited, Judge Hughes held that it couldnot. The principle as to the effect of state statutes isthat, if a contract is maritime in its nature, a state statutecan add to it the additional remedy of a lien, and the feder-al courts will enforce it. Hence, if the claim of the masteris maritime under the principles of general admiralty law,it would seem that a state statute could add to the rightwhich he would then have to sue in personam the addition-al right of proceeding against the vessel in rem. Therewas some wavering on the question whether he can pro-,ceed even in personam.40 But it is now settled that thecontract is maritime, which would give him the right to'proceed in personam.

In the Mary Gratwick,U where a statute of Califormapurported to give the master a lien, Judge Hoffman heldthat his contract was maritime, and that, therefore, thestatute could give the right of procedure in rem.

The fact that the contract is maritime is settled by the

I 1L It Raleigh, 2 Hughes, 44, Fed. Cas. No. 11,539; GrandTurk, 1 Paine, 73, Fed. Cas. No. 5,683.

60 Grand Turk, 1 Paine. 73, Fed. Cas. No. 5,683; Hammond T.Essex FIre '" :Marine Ins. Co., 4 Mason, 196, Fed. Cas. No. 6,OOL

U Fed. Cas. No. 17,591

30 Al>MIlULTY JURISDICTION (Ch.~

William M. Hoag.' There a master had proceeded againsta vessel under a statute of Oregon purporting to give himthe lien. District Judge Bellinger had held that he was en-titled to hold the vessel.61 Thereupon an appeal was takendirect to the Supreme Court under the clause of the appel-late court act giving such appeal on questions of jurisdic-tion. It was contended that whether the master had alien for his wages was a question of jurisdiction. Thecase was heard along with that of the Resolute." Mr. Jus-tice Brown therefore found it necessary to discuss exactlywhat constitutes jurisdiction. He held that: "Jurisdictionis the power to adjudicate a cause upon the merits, anddispose of it as justice may require. As applied to a suitin rem for a breach of a maritime contract, it presupposes-First, that the contract sued upon is a maritime con~tract; and, second, that the property proceeded against iswithin the lawful custody of the court. These are the onlyrequirements to give jurisdiction. Proper cognizance ofthe parties and subject-matter being conceded, all othermatters belong. to the merits." The opinion of the SupremeCourt, therefore, settles that the contract is maritime, whichrequired an affirmance of the decree of the District Courtwithout passing upon the question whether the state stat-ute could create the additional lien.

Under the principles laid down in the J. E. RUMBELL,uit seems that state statutes could have this effect, though inthat case the question whether it could have such an effectas to a claim of the master for wages was expressly re-served. in fact, these two cases show that the SupremeCourt is reluctant to sustain such a lien, on account of theinconvenience and abuses to which it may give rise.

u 168 U. S. 443, 18 Sup. Cl 114, 42 L. Ed. 537. See, also, UnionFish eo. v. Erickson, 248 U. S. 808, 89 Sup. Ct. 112, 63 L. Ed. 26L

61 (D.O.) 69 Fed. 742." 168 U. S. 437, 18 Sup. Ct. 112, 42 L. Ed. 538... 148 U. S. 1, 13 Sup. Ct. 498, 37 L. Ed. 345.

12-19) PILOTAGE 31The English statutes give the master such a lien, both

for wages and disbursements."~

PILOTAGE

12. A pilot is a person who, in consequence of his specialknowledge of the waters, has charge of the han-dling of a vessel

13. State pilot laws are constitutional.14. The skill required of a pilot is the ordinary care of an

expert in his profession.15. When in charge of navigation, he supersedes the mas-

ter.

16. Under the American decisions the vessel is liable forhis negligence, though he is a compulsory pilot.

17. He is 118ble for negligence.18. The ordinary forms of pilot associations are not liable

for the acts of one of their members.19. In Ameri~ admiralty courts have jurisdiction of auits

againat pilots.

The word "pilot" is used" in admiralty in reference to twoclasses. He may be a regular member of the crew, or hemay be taken aboard simply to conduct a vessel in or out ofport. The nature of his duties is in each case about thesame. He is supposed to know specially the watersthrough which the vessel navigates, and to conduct hersafely through them. The importance of his duties, there-fore, is only second to that of the master. In fact, thecourts have frequently looked upon him as practicallycharged with the same responsibility as the master.

Morgan v. C8stlegate S. S. Co., [1893] A. C. 38; Rupert City(D. C.) 213 Fed. 263.

32 ADMIRALTY .JURISDICTION (Ch.2Valitlity Of State Pilot Laws

Most of the states bordering on navigable waters have.passed laws regulating the business of pilotage, and render-ing it obligatory upon a vessel to take a pilot, or pay thepilotage fees, though the master of the vessel may himselfbe familiar with the waters, and not need assistance intaking his ship to port. The compulsory nature of theselaws has been often criticized, but they are based uponreasons of sound public policy. Unless pilotage is com-pulsory, the occupation would not be sufficiently remunera-tive to induce men of skill and character to engage in it.It is like other numerous kinds of expenses in modernbusiness where people must pay when no direct service isrendered, in order to support a class of men who can ren-der that service best. It is similar to the payment of taxesin order to support police and fire departments, though theindividuals who pay them may never be robbed or havetheir houses burned j for a moment may come when anyone of them may need such protection.

In COOLEY v. BOARD OF WARDENS OF PORTOF PHILADELPHIAU the court says: "Like otherlaws, they are framed to meet the most usual cases--qurefrequentius accidunt. They rest upon the propriety ofsecuring lives and property exposed to the perils of a dan-gerous navigation by taking on board a person peculiarlyskilled to encounter or avoid them j upon the policy of dis--:ouraging the commanders of vessels from refusing toreceive such persons on board at the proper times andplaces j and upon the expediency, and even intrinsic justice,of not suffering those who have incurred labor, and ex-pense, and danger to place themselves in a position to ren-der important service generally necessary, to go unreward-ed, because the master of a particular vessel either rashlyrefuses their proffered assistance, or, contrary to the gen-eral experience, does not need it. There are many cases in

n 12-19. 4T 12 How. 299. 13 L. Ed. 996.

I 12-19) PILOTAGE 33which an offer to perform, accompal1ied by present abilityto perform, is deemed by law equivalent to performance.The laws of commercial states and countries have made anoffer of pilotage service one of those cases; and we can-not pronounce a law which does this to be so far removedfrom the usual and fit scope of laws for the regulation ofpilots and pilotage as to be deemed for this cause a covertattempt to legislate upon another subject under the ap-pearance of legislating on this one."

In the China 48 the court said: "It is necessary that bothoutward and inward bound vessels of the classes desig-nated in the statute should have pilots possessing fullknowledge of the pilot grounds over which they are to beconducted. The statute seeks to supply this want, andto prevent, as far as possible, the evils likely to follow fromignorance or mistake as to the qualifications of those to beemployed, by providing a body of trained and skillful sea~men, at all times ready for the service, holding out to themsufficient inducements to prepare themselves for the dis-charge of their duties, and to pursue a business attendedwith so much of peril and hardship."

These pilotage laws are among the state statutes relat-ing to vessels which have been upheld as not in conflictwith the clause of the federal constitution conferring oncongress the exclusive right to regulate interstate and for-eign commerce.U The theory of these decisions is thatsuch laws affect commerce incidentally, and are valid un-til congress legislates on the subject.

The leading case on the subject is COOLEY v. BOARDOF WARDENS OF PORT OF PHILADELPHIA.u

417 Wall. 53, 19 L. Ed. 67.4t Article 1, I S, cI. 3.

10 12 How. 299, 13 L. Ed. 996. See, also, Olsen T. Smith, 195 U.8. 332, 25 Sup. Ct. 52, 49 L. Ed. 224; Thompson v. Darden, 198 U. S.810, 25 Sup. Ct. 660, 49 L. Ed. 1064.

Huam:s,ADK. (2D ED.)-3

ADMIRALTY JURISDICTION (Ch.1Skill Required of Pilo-t

Since a pilot hires himself out as an expert, and is em-ployed beca:use he is an expert, the measure of care requir-ed of him is a high one. Some of the cases go so far as tosay that his liability is as great as that of a common car-rier, but the contract of pilotage is, after all, one of merehiring, and the duty required of him is simply the ordi-nary care required of any servant. This ordinary care,how~ver, varies with the character of the employment, sothat the ordinary care required of an expert is much high-er than the ordinary care required of a simple driver of aland vehicle. The pilot's liability is for ordinary care, butthat means the ordinary care of an expert in his profession.While he is not liable for mere errors of judgment, he isliable for any accident that care and attention and an in-telligent knowledge of the locality with which he profess-es familiarity might prevent. He is supposed to know thecurrents, the channel, and all special difficulties connectedtherewith, except unknown and sudden obstructions whichhe could not find out by intelligent attention. He is sup-posed to know how to cross the bar, and when it is theproper time to cross it.11

In ATLEE v. NORTHWESTERN UNION PACKETCO.U the court lays down the following as the knowledgerequired of a river pilot:

"The character of the skill and knowledge required of apilot in charge of a vessel on the rivers of the country isvery different from that which enables a navigator to carryhis vessel safely on the ocean. In this latter case a knowl-edge of the rules of navigation, 'with charts which disclosethe places of hidden rocks, dangerous shores, or other dan-gers of the way, are the main elements of his knowledge

n Guy v. Donald, 157 Fed. 527, 85 C. C. A. 2m, 14 L. R. A. (N. S.)1114, 13 Ann. Cas. 947; Dora Allison (D. C.) 213 Fed. 645.

u 21 Wall. 389. 22 L. Ed. 619; Harrison v. Hughes, 125 Fed. 860,60 C. C. A. 442.

12-19) PILOTAGE 85and skill, guided as he is in his course by the compass, bythe reckoning and the observations of the heavenly bodies,obtained by the use of proper instruments. It is by thesehe determines his locality, and is made aware of the dan-gers of such locality, if any exist. But the pilot of a riversteamer, like the harbor pilot, is selected for his personalknowledge of the topography-through which he steers hisvessel. In the long course of a thousand miles in one ofthese rivers he must be familiar with the appearance ot theshore on each side of the river as he goes along. Its banks,towns, its landings, its houses and trees, and its opening~between trees, are all landmarks "by which "he steers hisvessel. The compass is of little use to him. He must knowwhere the navigable channel is in its relation to all these ex-ternal objects, especially in the night. He must also befamiliar with all dangers that are permanently located inthe course of the river, as sand bars, snags, sunken rocksor trees, or abandoned vessels or barges. All this he mustknow and remember and avoid. To do this he must be con-stantly informed of changes in the current of the river, ofsand bars newly made, of logs, or snags, or other objectsnewly presented, against which his vessel might be injur-ed. In the active life and changes made by the hand of manor the action of the elements in 'he path of his vessel, ayear's absence from the scene impairs his capacity-hisskilled knowledge-very seriously in the course of a longvoyage. He should make a few of the first 'trips' as theyare called, after his return, in company with other pilotsmore recently familiar with the river.

"It may be said that this is exacting a very high orderof ability in a pilot. But when we consider the value ofthe lives and property committed to their control-for inthis they are absolute masters-the high compensation theyreceive, and the care which Congress has taken to secureby rigid and frequent examinations and renewal licensesthis very class of skill, we do not think we fix the standardve'ry high."

s. ADJilIBALTY JURISDICTION (Ch.2In the Oceanic 61 the court says: "A licensed pilot, who

undertakes to take a ship, with sails up, through a channelsuch as that leading over the bar of the St. Johns river,Fla., should know the channel, its depths, shoals, and thechanges thereof, and should be charged with negligence ifhe fails to skillfully: direct the course of the ship, and giveproper supervision and direction to the navigation of thetug which is towing her."Relative Duties of Pilot and Master

When a pilot comes aboard, it is often a difficult questionto say what are his duties and those of the master in con-nection with 'the navigation. No ship is large enough fortwo captains. It may be said, in general, that the pilothas charge of the navigation, including the course to steer,the time, place, and method of anchorage, and, in general,the handling of the ship. The master must not interfereunless the pilot is plainly reckless or incompetent. Thenhe must take charge himself. In fact, in many cases thepilot is spoken of as the temporary master. On their rela-tive duties the Supreme Court says: H "Now, a pilot, sofar as respects the navigation of the vessel in that part ofthe voyage which is his pilotage ground, is the temporarymaster, charged with the safety of the vessel and cargo,and of the lives of thos, on board, and intrusted with thecommand of the crew. He is not only one of the personsengaged in navigation, but he occupies a most importantand responsible place among those thus engaged." II

The master however may and should call the attention of

lIB 20 C. C. A. 574, 74 Fed. 642. See, also, Saluda, Fed. Cas.No. 17,232; SIDloJRACUDI v. MAPES (D. C.) 8 Fed. 873; Com-118gnle de Navigation Francnif.le v. Burley (D. C.) 188 Fed. 166;Burley v. Compagnie de Navigation Francoise, 194 Fed. 885, 115 C.a A. 199.

u COOLEY v. BOARD OF WARDEXS OF PORT OF PHILA-DELPHIA, 12 How. 316, 13 L. Ed. 1003.

ill See, also, Oregon, 158 U. S. 194, 1M. 15 Sup. Ct. 804, 89 L.Ed. 943; ~IARCELLUS,1 Clltf. 481, Fed. Cos. Ko. 2,347.

12-19) PILOTAGB 37the pilot to dangers which seem to have escaped the lat-ter's attention."Liability of Vessel for Acts of Pilot

In one respect the decisions in relation to pilots runcounter to common-law ideas on the subject of agency. Itis a principle of the law of agency that the foundation ofthe master's responsibility for the acts of his agent is theright of selection and control. Yet 'the American courtshold that a "essel is responsible to third parties for inju-ries arising from the negligence of the pilot, though hecame on board against the will of the master, under a statestatute of compulsory pilotage.IT

The English law was long different. But by Pilotage Act1913, 15, the ship is made liable, though in charge of a com-pulsory pilot.*

A pilot law is not considered compulsory, if the only pen-alty imposed is the payment of the pilotage fee. liS

The reason why the vessel is held liable is that admiral-ty looks on the vessel itself as a responsible thing, andthat under the ancient laws relating to pilots the responsi-bility was one which attached to the vessel itself, irrespec-tive of ownership, it being thought unjust to require injur-ed third parties to look beyond the offending thing to ques-tions of ownership or control.u

The rationale of the doctrine excludes the idea of any

it Homer Ramsdell Transp. Co. v. Compagnie Gen~rale Trans-atlantique (C. C.) 63 Fed. 845; Tactician [1907] P. 244.

11 China, 7 Wall. 53, 19 J~. Ed. 67; Indra Line v. Palmetto Phos-phate Co., 239 Fed. 94, 152 C. C. A. 144.

-Marsden, ColI. (7th Ed.) p. 2.37; Carver, Carriage by Sea (6thEd.) p. 43, I SOa.

liS Merrimac, 14 Wall. 199, 20 L. Ed. 873; Homer Ramsdell Transp.Co. v. La Compagnie C*nerale Transatlantlque, 182 U. S. 406, 21 Sup.Ct 881, 45 L. Ed. 1155. See, also, Dalllngton, [1903] P. 77.

10 Tucker v. Alexandro1r, 183 U. S. 424, 22 Sup. Ct. 195, 46 1.. Ed.264.

38 ADJilIRALTY JURIBDICTION (Cb. 2personal liability of the owners for the act of a compulsorypilot.n

A pilot is liable to the vessel for any damage caused bycarelessness or negligence.81Liability of Association for Acts of Individual Pilot

Where state pilot laws prevail, it is usual for the pilotsto organize into associations, frequently unincorporated.The question whether the association would be liable forthe negligence of one of its members is a nice one. Itwould depend upon the character of the association. Someof them own no common property, keep no common fund,and the pilots take ves.sels in rotation, and each pilot takesthe fee which he makes. Other associations own pilotboats in common, rent officers, own other property, keep acommon fund, pay all expenses, pay all the separate feescollected from vessels into the common fund, and dividethe balance remaining among the individual members. Onprinciple it would seem that this ought to constitute ajoint liability, and that the different members of such an as-sociation ought to be responsible for the acts of an indi-vidual pilot. It would seem that all the requisites that con-cur to make a joint liability would be present in such acase. In fact, it would hardly be putting the case toostrongly to call it a partnership, provided the individualscomposing the association have the right to decide whoshall be members of the association.

In Mason v. Ervine," Judge Pardee, as circuit judge,held that the Louisiana Pilots' Association was not liablefor the act of one of its members. This case rather turned

o. Homer Ramsdell Transp. Co. Y. La Compagnie G61~rale Tran&-atlantique, 182 U. S. 406, 21 Sup. Ct. 831, 45 L. Ed. 1155; Hathor(D.O.) 167 Fed. 194.

01 SIDERACUDI v. MAPES (D.O.) 3 Fed. 873; Guy v. Donald,157 Fed. 527, ~ C. C. A. 291, 14 L. R. A. (N. S.) 1114, 13 Ann. Oa..947.

02 (0. C.) 27 Fed. 459.

12-19) PILOTAGE 39upon the special language of the Louisiana Code, for thereport itself does not show the provisions or character oftheir association. In any event, the question was not nec-essary for tlfe decision of the case, as he held that the pilothimself was not guilty of any negligence, which of its