In two volumes, royal 8vo., 1875, price 70s., cloth, THE LAW RELATING TO SHIPMASTERS AND SEAMEN. THEIR APPOINTMENT, DUTIES, POWERS, RIGHTS, LIABILITIES AND REMEDIES. BY JOSEPH KAY, Esa., M.A., Q.C., OF TRIN. COLL. CAMBRIDGE, AND OF THE NORTHERN CIRCUIT ; SOLICITOR-GENERAL OF THE COUNTY PALATINE OF DURHAM; ONE OF THE JUDGES OF THE COURT OF For Reviews of the Work, see next page. THE LAW RELATING TO SHIPMASTERS AND SEAMEN. REVIEWS OF THE WORK. From the NAUTICAL MAGAZINE, July, 1875. "The law-books of the present day are mostly of two classes: the one written for lawyers, and only to be understood by them; the other intended for the use of non-professional readers, and generally in the form of handy books. The first, in the majority of cases, is of some benefit, if looked upon merely as a compilation containing the most recent decisions on the subject; whilst the second only aims, and not always with success, at popularising some particular branch of legal knowledge by the avoidance of technical phraseology. "It is rarely that we find a book fulfilling the requirements of both classes; full and precise enough for the lawyer, and at the same time intelligible to the non-legal understanding. Yet the two volumes by Mr. Kay on the law relating to shipmasters and seamen will, we venture to say, be of equal service to the captain, the lawyer, and the Consul, in their respective capacities, and even of interest to the public generally, written as it is in a clear and interesting style, and treating of a subject of such vast importance as the rights and liabilities and reiative duties of all, passengers included, who venture upon the ocean; more than that, we think that any able-seaman might read that chapter on the crew with the certainty of acquiring a clearer notion of his own position on board ship. "Taking the whole British Empire, the tonnage of sailing and steam vessels registered in the year 1873 was, we learn in the preface, no less than 7,294,230, the number of vessels being 36,825, with crews estimated, inclusive of masters, at 330,849; but the growth of our mercantile fleet to such gigantic proportions is scarcely attributable to any peculiar attention on the part of the Legislature to its safety and welfare, for, as Mr. Kay justly says, 'it is remarkable that in England, the greatest maritime State the world has ever seen, no proper precautions were taken before the year 1850 to protect the public from the appointment of ignorant and untrustworthy men to these important posts'— the command of vessels, in which property and life are committed to them under circumstances which necessarily confer almost absolute power and at the same time preclude for long periods the possibility of any supervision.' The French, he tells us, had an ordinance as early as the year 1584, requiring the master to be examined touching his experience, fitness, and capacity. But in England the indifference on this subject was more apparent than real; it arose, we believe, out of the dislike of interference with personal concerns and private enterprise which is so strongly marked in our national character, nor must we forget that some of the most glorious achievements in our nautical annals have been accomplished by men not strictly trained to the sea, and this fact, no doubt, contributed to the reluctance manifested by the Legislature to apply the principles of paternal government to the protection of our seamen; for the going and coming of hundreds of thousands over the ocean for the purposes of business or pleasure had then but lately commenced; and, moreover, probably it was feared that too much care for the welfare of our seamen would have the effect of diminishing the hardihood, self-reliance, and daring which had up to that time made them the envy of the world. "In 1854 the Merchant Shipping Act was passed, repealing the Act of 1850. Under its provisions the Board of Trade received its present extensive authority over merchant ships and seamen, Local Marine Boards were constituted for the examina. tion of masters and mates of foreign-going and home passenger ships, Mercantile Marine officers established for the registration of seamen, and Naval Courts for the investigation of complaints against masters, and other matters. Without doubt the result of this system of compulsory examination has been beneficial, and the master may also possess those other qualifications which cannot be subjected to examination. But it is not enough now-a-days that he should be honest, skilful, courageous, and firm; he must also, if he would steer clear of rocks other than those marked on the chart, be something of a lawyer. This, it might seem, would apply equally to all men having the conduct of important interests, and coming into contact with large numbers of men, but to no one else is so large a discretionary power granted, and the very fact that his use of it is not very severely scrutinised, only adds to the caution with which it should be exercised. And then there are many incongruities in his position. He may have a share in a ship, and yet he is but the agent of the other owners; though, if he has no share, and in a case of necessity hypothecate the ship, he also binds himself in a penalty to repay the sum borrowed. We can make no charge of redundancy or omission against our author; but if we were called upon to select any one out of the fifteen parts into which the two volumes are divided as being especially valuable, we should not hesitate to choose that numbered three, and entitled 'The Voyage.' There the master will find a succinct and compendious statement of the law respecting his duties, general and particular, with regard to the ship and its freight from the moment when, on taking command, he is bound to look to the seaworthiness of the ship, and to the delivery of her log at the final port of destination. In Part IV. his duties are considered with respect to the cargo, this being a distinct side of his duplicate character, inasmuch as he is agent of the owner of the cargo just as much as the owner of the ship. "Next in order of position come 'Bills of Lading' and 'Stoppage in Transitu.' We confess that on first perusal we were somewhat surprised to find the subject of the delivery of goods by the master given priority over that of bills of lading; the logical sequence, however, of these matters was evidently sacrificed, and we think with advantage to the author's desire for unity in his above-mentioned chapters on 'The Voyage.' That this is so is evidenced by the fact that after his seventh chapter d THE LAW RELATING TO SHIPMASTERS AND SEAMEN. REVIEWS OF THE WORK-continued. on the latter subject he has left a blank chapter with the heading of the former and a reference ante. 'The power of the master to bind the owner by his personal contracts,' 'Hypothecation,' and 'The Crew,' form the remainder of the contents of the first volume, of which we should be glad to have made more mention, but it is obviously impossible to criticize in detail a work in which the bare list of cited cases occupies forty-four pages. "The question of compulsory pilotage is full of difficulties, which are well summed up by Mr. Kay in his note to page 763:-'In the United States no ship is bound to take on board a pilot either going in or coming out of the harbour, but if a pilot offers and is ready, the ship must pay pilotage fees whether he is taken on board or not.' Ships do not exist for pilots, but pilots for ships, so that this option in the use of the pilot, and obligation in the matter of fees, appears to us to be exactly that solution of the difficulty which should not have been arrived at; and, moreover, it is open to the first objection urged by Mr. Kay against the compulsory system of pilotage, which is, that it obliges many ships which do not require pilots to pay for keeping up a staff for those who do. Seven other cogent reasons, for which we must refer the reader to the book itself, though most of them, indeed, will instantly present themselves to the minds of sailors without even an effort of memory, are noted. Section 338 of the Merchant Shipping Act provides that no owner or master of any ship shall be answerable to any person whatever for any loss or damage occasioned by the fault or incapacity of any qualified pilot acting in charge of such ship within any district where the employment of a pilot is compulsory by law. If he interferes to correct the pilot in the handling of a ship, with the peculiarities of which the latter cannot generally be acquainted, he may render himself and the owners liable in case of accident, and so a premium is offered to his indifference, proof being always required that the damage was occasioned solely by the pilot's neglect or fault, to entitle the owners to the benefit of this section. The decision in the case of the General de Caen well illustrates some of the difficulties surrounding the subject. She was a French ship upon the Thames, where the employment of a pilot is compulsory, and she, therefore, took on board a pilot as well as a waterman to take the wheel in consequence of none of the crew being able to understand English. The waterman put her helm up instead of luffing as the pilot ordered, whereby a barge was run into and damaged. The French owner claimed under Section 389 of 17 and 18 Vic., c. 104. It was held that the pilot was not answerable for the waterman's incapacity or fault; that the pilot gave the proper orders; that it would be contrary to justice to say that the pilot was solely liable for the collision; that the waterman was the servant of the owners, and that they, therefore, were liable. The real question at issue seems to have been whether the English pilot ought to have spoken French or the French ship to have had on board a helmsman who could understand English, and the corollary, when the decision had been given in favour of the former, that the Govern ment officer, when engaging the helmsman, was acting merely as the agent of the French owners. "The master has a large authority over the passengers on board his ship, equal in cases of great emergency to that which he possesses over the crew. Lord Ellenborough has decided-it will comfort intending travellers by sea to hear, especially if this country should again become involved in a war with a nation which, unlike Ashanti and Abyssinia, possesses a navy-that a master exceeded the limits of his authority in placing a passenger who refused to fight on the poop, though willing to do so elsewhere, in irons all night on that particular part of the ship to which he had objected. "It is for the interest and security of commerce and navigation that it should be generally known that the amount of service rendered is not the only or proper test by which the amount of salvage reward is estimated, but the Court will grant to successful salvage an amount which much exceeds a mere remuneration for work and labour in order that the salvors should be encouraged to run the risk of such enterprises and go promptly to the succour of lives or vessels in distress, though they must take care that they do not by their subsequent conduct forfeit their claims to such reward. "That it should be necessary to entice men by money to save the lives of their fellow-creatures is not a matter for congratulation; still it was no doubt to some extent anomalous that formerly, whilst large proportionate sums were paid for the recovery of property, for the rescuing of human life unless associated with property, no salvage reward could be recovered. But by Section 458 of the Merchant Shipping Act the preservation of human life is made a distinct ground of salvage reward, with priority over all other claims for salvage where the property is insufficient, and if the value of the property is not adequate to the payment of the claim for life-salvage alone, the Board of Trade is empowered to award to the salvors such sum as it deems fit, either in part or whole satisfaction. "There is, perhaps, no species of service liable to a greater variety of circumstances under which it can be performed than salvage. Consequently we cannot be surprised that questions of this kind frequently come before the Courts, and that the number of decided cases is very large; but Mr. Kay has succeeded in an admirable way in extracting the main points connected with each case, and in presenting them in as few words as possible. Of course fuller information may sometimes be required, but the reader will then know where to find it. "In conclusion, we can heartily congratulate Mr. Kay upon his success. His work everywhere bears traces of a solicitude to avoid anything like an obtrusive display of his own powers at the expense of the solid matter pertaining to the subject, whilst those observations which he permits himself to make are always of importance and to the point; and in face of the legislation which must soon take place, whether beneficially or otherwise, we think his book, looking at it in other than a professional light, could scarcely have made its appearance at a more opportune moment." THE LAW RELATING TO SHIPMASTERS AND SEAMEN. REVIEWS OF THE WORK—continued. From the LIVERPOOL JOURNAL OF COMMERCE. "The Law relating to Shipmasters and Seamen -such is the title of a voluminous and important work which has just been issued by Messrs. Stevens. and Haynes, the eminent law publishers, of London. The author is Mr. Joseph Kay, Q.C., and while treating generally of the law relating to shipmasters and seamen, he refers more particularly to their appointment, duties, rights, liabilities, and remedies. It consists of two large volumes, the text occupying nearly twelve hundred pages, and the value of the work being enhanced by copious appendices and index, and by the quotation of a mass of authorities. . . . In a short note of dedication Mr. Kay observes that he had been engaged on it for the last ten years. The result of this assiduity and care has been the production of a standard work on the subject to which it relates. . . . As to the value of the work itself, it can hardly be properly treated of in limited space. It is divided into fifteen parts From the BOSTON (U. S.) "Of volumes with such a magnitude of pages, filled with abstruse matter, made plain and clear, we have only room to give the heads of the Analysis of Contents, without alluding to the various branches. They are laid out in fifteen parts, viz. : The Public Authorities; Appointment, Certificates, &c. of the Master; the Voyage; Master's Duties and Powers with respect to Cargo; Bills of Lading; Stoppage in Transitu; When the Master may bind the Shipowner by his Personal Contract; Hypothecation; the Crew; Pilots; Passengers; Collisions; Salvage; the Master's Remedies and his Liabilities. Then follow the appendices, thirty-four in number, which contain a great deal of maritime law information, as also the 'Index to Cases,' and here the immense labour of the compiler is seen in its fullest and most distinct sense. The index of which have reference to the public authorities having control in shipping matters, the appointment, certificates, &c., of the master, his duties on the voyage, his duties and powers with respect to the cargo, bills of lading, stoppage in transitu, personal contracts binding the shipowner, hypothecation, the crew, pilots, passengers, collisions, salvage, the master's remedies and his liabilities. From this range of topics it will be seen that the work must be an invaluable one to the shipowner, shipmaster, or consul at a foreign port. The language is clear and simple, while the legal standing of the author is a sufficient guarantee that he writes with the requisite authority, and that the cases quoted by him are decisive as regards the points on which he touches. The work is excellently 'got up,' and its appearance is quite consistent with its standard character as a treatise on the law relating to shipmasters and seamen." JOURNAL OF COMMERCE. From the LAW "The author tells us that for ten years he has been engaged upon it. . . . Two large volumes containing 1181 pages of text, 81 pages of appendices, 98 pages of index, and upwards of 1800 cited cases, attest the magnitude of the work designed and accomplished by Mr. Kay. "The total merchant shipping of the United Kingdom consisted in 1873 of 21,581 vessels of 5,748,097 tons, manned by 202,239 seamen; and the total merchant shipping of the whole British Empire consisted of 36,825 vessels of 7,294,230 tons, manned by 330,849 seamen. Mr. Kay justly observes upon these figures: For such a vast mercantile fleet, one would have thought that every thing would have been done to render the law affecting such a vital part of our Imperial Empire as clear, as simple, and as easily to be inquired into and understood, as was possible.' Unfortunately, everyone knows that the exact contrary is the case, and that, confused as is the condition of almost every department of English jurisprudence, no one department is in a more hopeless and chaotic state cases decided in Courts of Final Appeal, relating to maritime disputes, enumerated in lines alphabetically, makes forty-two long pages. These are necessarily brief in abstract, but they are really of interest to all shippers and consignees, to masters, owners, and seamen, to underwriters, and to the assured. It would seem hardly possible that so much valuable and really interesting information could be thrown into so confined a space. "In the abstracts of law cases the decisions of the Supreme Court of the United States are referred to very frequently, as precedents in maritime law, and we note, under the head of 'The Master's Duties to the Passengers, irrespective of the statutes,' that the decisions of our courts are oftentimes mentioned." JOURNAL. than that which embraces the merchant-shipping laws and regulations. Mr. Kay tells us that these laws are to be discovered by researches into 'thirtyfive statutes, seventeen orders in council, great numbers of instructions of the Board of Trade; great numbers of bye-laws and regulations of the Trinity House and of the different ports; and great numbers of cases decided on numberless points in the various courts.' Now, in default of a code setting forth in a clear and comprehensive manner the law contained in this rudis indigestaque moles, and until such a code is formed, the only anchor of salvation to mariners and lawyers alike is some one or more treatises on which reliance can be placed. Mr. Kay says that he has endeavoured to compile a guide and reference book for masters, ship agents, and consuls.' He has been so modest as not to add lawyers to the list of his pupils; but his work will, we think, be welcomed by lawyers who have to do with shipping transactions, almost as cordially as it undoubtedly will be by those who occupy their business in the great waters. da THE LAW RELATING TO SHIPMASTERS AND SEAMEN. REVIEWS OF THE WORK-continued. "We must not be understood as intimating that all and every part of this work has a legal interest. Much of it concerns only the practical life of the master and crew. But there are many chapters to which members of both branches of the profession, and especially solicitors residing at the great ports, will turn with gratitude to the author in moments of difficulty. For example, Part IV. is on the master's duties and powers with respect to the cargo, and deals with hypothecation, freight, lien, and delivery. Part V. contains an exhaustive treatise on bills of lading, with special reference to the effect of the transfer of the bill of lading upon the property named in the bill. Part VI. explains fully the right of stoppage in transitu, and Part VII. teaches when the master may bind the shipowner by the master's personal acts. So again Part XIII. deals with the principles of salvage, and the nature and reward of salvage services. The great bulk of the book, however, is devoted to the consideration of the rights, duties, and obligations of the master and of the crew. After explaining the powers and prerogatives of the several public authorities to whose control mariners are subject, the author proceeds to the appointment, certificates, &c. of the master, his general duties and authorities on the voyage towards the shipowner, the charterer, the underwriter, and the harbour master. Next are considered the duties and powers of the master with respect to the cargo, his power to bind the shipowner by contracts either for necessary supplies or for absolute sale of the ship, and his power of hypothecation. Having so considered the position of the master, the author next deals with the crew, their engagement, wages, legal rights to wages, and modes of recovery; their discipline, and the legislation for their protection in life, limb, and pocket. Pilots and pilotage are then considered at great length; and then we have a survey of the rights and liabilities of passengers, and the statutable provisions for their protection. Collisions, salvage, the master's personal remedies and liabilities, complete the list of subjects. The appendices contain an immense variety of forms, tables, scales, &c., embracing fees, medicines, boats, protests, bottomry, and respondentia bonds, orders in council, instructions to emigration officers, lights, bye-laws as to pilots, remuneration of receivers, and other matters and things too numerous for detail. "The volumes are well printed, with wide margins, and present a smart appearance both in cover and page; and, while they will find their way to the cabins of the masters of all big passenger steamers and merchantmen, they will, we believe, also adorn the shelves of many lawyers." From the MANCHESTER EXAMINER. "In a brief notice no idea could be given of the importance, or even the extent, of the details referred to in Mr. Kay's book, and a catalogue of the contents would constitute a small pamphlet. There are also in the course of the treatise interesting historical references, and the duties and responsibilities of passengers are not overlooked. Speaking generally of the law of shipping, as defined and described in the book before us, we may say that the seaman has a Magna Charta of his own. The rights of the owner, of the ship's officers, and of the sailors are all clearly recognised on the statute book, and the penalty for the infringement is in every case specified. We read of the precautions for the safety of life and property exacted by the authorities, and of the conditions which must be fulfilled before a vessel is pronounced seaworthy; yet we learn with amazement that before 1850 no proper precautions were taken in England to protect the public from the appointment of ignorant and untrustworthy men as masters of ships. In illustration of the various branches of his subject Mr. Kay refers to more than a thousand cases. The appendices also contain a considerable amount of valuable information, and the index is so complete that it indirectly serves the additional purpose of a glossary. In his preface Mr. Kay modestly hopes that his book 'may prove to be a useful book of reference for intelligent masters and for ship agents and consuls in foreign ports on matters relating to shipmasters and seamen.' That it will prove useful to them we have no doubt whatever, and that it will be gratefully accepted as a boon by many others we are equally sure. Directly or indirectly, it cannot but prove an important work of reference to all who are engaged in the shipping trade, and Mr. Kay deserves the thanks of the commercial as well as of the shipping community for having so successfully carried out his arduous task." In crown 12mo., 1876, price 12s., cloth, A TREATISE ON THE LOCUS STANDI OF PETITIONERS AGAINST PRIVATE BILLS IN PARLIAMENT. THIRD EDITION. By JAMES MELLOR SMETHURST, Esq., of Trinity College, Cambridge, M.A., and of the Inner Temple, Barrister-at-Law. |