  1. Appointment and General Authority.—The master is the commander of a merchant vessel. He has full charge of, and personal responsibility for the navigation and control of the ship, passengers, crew and cargo as the representative and confidential agent of the owner. The position is one of the most dignified and responsible known to the law. In order to have the ship seaworthy, an owner must provide a master who is fully competent in respect of care, skill and honesty, a man of sound judgment and discretion; and in general, there must also be provided one of sufficient ability to supply his place, in case of accident or disability. (The Niagara, 21 How. (U.S.) 7; 2 Parsons Sh. & Ad. 1.) Correspondingly, he is an officer to whom great power and wide discretion are necessarily confided. His authority is summary and often absolute, especially at sea, and can seldom be resisted by those over whom he is placed—as Chancellor Kent has expressed it: "He should have the talent to command in the midst of danger, and courage, and presence of mind to meet and surmount extraordinary perils. He should be able to dissipate fear, to calm disturbed minds, and inspire confidence in the breasts of all who are under his charge, in tempests as well as in battle. The commander of a ship must give desperate commands; he must require instantaneous obedience. He must watch for the health and comfort of the crew, as well as for the safety of the ship and cargo. It is necessary that he should maintain perfect order, and preserve the most exact discipline under the guidance of justice, moderation and good sense." Our statutes require that only those whom the law has examined and approved shall occupy that position. The master must be an American citizen (Rev. St. §4139); he must have a license from the Inspectors, who are charged to examine into his character No formalities are required in his appointment by the owner. Any authorization which would suffice to otherwise create the relation of master and servant, or principal and agent, is enough (The Boston, Blatch. & H. 309). His contract need not be in writing, even if for more than one year. His wages are a matter of contract; he has no lien on the ship (The Nebraska, 75 Fed. 598), unless, possibly, one is created by the local law of the ship's flag. In case of disaster, his duty requires him to stay by the ship as long as there is any possibility of good resulting therefrom. The popular phrase that "the captain should be the last man to quit the ship" is well founded in law (The Niagara, 21 How. (U.S.) 7). His authority is generally implied and is according to the law of the ship's flag. Generally speaking, he is the owner's agent and his authority extends to all matters within the scope of his appointment. Where the owner is present, or easily accessible, this authority is narrowed, but otherwise it may be very broad, and measured only by the necessities of the situation, and the use and employment of the ship. On shipboard, his authority is supreme, except, possibly, in the presence of the owner. He has power to enforce discipline and inflict punishment, not unlike that in the relationship of parent and child, or teacher and pupil, save that he is forbidden by statute to inflict corporal punishment (Act of March 4, 1915). The old flogging days, therefore, are over, and the master who inflicts corporal punishment is guilty of a crime. He may, in proper cases, discharge or disrate members of the crew. On the other hand, the law charges him with the duty of seeing 2. Personal Liability.—His personal liability is practically unlimited. The owner may confine his liability to the value of the ship but the master has no such privilege. Thus materialmen may sue the master personally for supplies and repairs (General Admiralty Rule 12);[7] the sailors may sue him for their wages (Rule 13); the pilot, for pilotage (Rule 14); suits for collision may be brought against him alone (Rule 15), and he is responsible for moneys loaned the ship in a foreign port (Rule 17); so, also he is liable for cargo injured by the ship and may be sued by the underwriters therefor (Co. v. Dexter, 52 Fed. 152). 3. Restriction on Authority.—The master is the owner's agent in all matters fairly within the scope of his authority but has no more authority to bind him than any other special agent. He is not a general agent and his powers are usually confined to the property in his charge. In cases of necessity, when the owner is not present, his authority is very broad but it is correspondingly restricted when the owner is present. He cannot bind the owner personally beyond the value of the ship and freight pending; he cannot vary or annul the owner's agreements; he cannot make a promissory note binding on the owner; or bind him for cargo not actually on board by a bill-of-lading;[8] or admit an invalid claim; nor purchase a cargo on his account. 4. Rights of Master.—He is entitled, of course, to have his wages paid according to his contract—though he has no lien for them on the ship—and such a contract is valid and enforceable although made without writing and for more than one year. He is also entitled to recompense for all money advanced for the ship within the scope of his employment and to indemnity against loss or damage which he may sustain therein without his own fault. He is also entitled to care and cure for injuries sustained in the service of the ship, irrespective of his own fault, like other members of the ship's company. He is entitled to extra wages for services outside of his line of duty. He has a lien on the freight[10] for his wages, disbursements, expenses and necessary liabilities. This may be asserted by withholding from the moneys collected by him or by an attachment or garnishment. When the ship is in charge of a licensed pilot[11] the master should remain in command except so far as the pilot's duties are concerned and see that there is a sufficient watch on deck and that the men are attentive to their duties; he may advise with the pilot and even displace him in case of intoxication or manifested incompetence. By virtue of his general agency for the owners in relation to the ship, he may sue in his own name, in their behalf, to recover for collision or for breach of contract of affreightment or on any other account connected with the business entrusted to him. 5. Wages.—His wages depend on the contract with the owner and, where that is not express, will be allowed in accordance with the prevailing usage of the place and trade. The fact that he is a part-owner does not affect his rights in this respect. He may pay himself out of freight-money which passes through his hands. In case of wrongful discharge he may sue for his wages for the balance of the term in one action for damages for breach of contract or bring successive suits for each installment as it falls due. He is bound, however, to reduce his damages as much as he can by other employment. It has been held that where there is delay 6. Lien.—As has been remarked the general rule is that the master has no lien on the ship for his wages. In the Orleans v. Phoebus, 11 Peters 175, wherein Phoebus sought to enforce a lien on the steamboat Orleans for his wages as master, the Supreme Court said: By the maritime law the master has no lien on the ship even for maritime wages. This is supposed to be for the reason that he contracts on the personal credit of the owner and also because it would tend to impair the owner's personal confidence in his integrity. Another ground is that where the master collects the freight he can pay himself directly and so needs no lien. But a lien may be given by the terms of his contract or by a statute of the state from which the vessel hails; if it is, it will be enforced in the admiralty. He has no lien on the cargo belonging to the owner of the ship, and, according to the weight of authority, no lien upon cargo belonging to any other shipper. He has, however, as has been said, a lien on the freight earned by the vessel for his wages, disbursements and necessary liabilities. This may be asserted by withholding from the moneys collected by him or by an attachment or garnishment. In the Arcturus, 17 Fed. 95, the vessel had on board a quantity of telegraph poles owned by a shipper and intended for delivery at Sandusky, upon which the shipper was to pay freight in the usual way. Before the poles were unladen at Sandusky, the vessel was seized by the marshal under a libel filed by certain creditors, so that the master could not and did not unload the poles, and the owner was compelled to pay $70 to have them unloaded. In addition to this, before they were unladen the owner of the poles was compelled to pay into the registry of the court the entire freight which would have been earned had the vessel delivered the poles to him. The master filed a libel, asserting that the whole freight money should be applied to his unpaid wages, and claiming also a lien on the poles, the cargo, for his wages. The court found that the master had no lien on the cargo for his wages beyond the amount of the freight; that he was only entitled to the freight actually earned by the vessel, that being the freight less what it cost to unload at Sandusky, and that he was Where the master performs seamen's duties in addition to his own it has been held he is not entitled to a lien for compensation for such work, but in some more recent cases such liens have been allowed. There is a substantial conflict of authority on this point. 7. Relations to Cargo.—He has no authority to alter a charter party, nor to sign a bill of lading for goods not shipped or containing a misdescription of the cargo. He must not mis-date a bill of lading nor issue one contrary to the terms of the charter. He must see that the cargo is well and sufficiently stored in accordance with law and that the ship is not overladen. The law contemplates that the master himself must be a competent stevedore. Thus in the leading case of the Niagara, 21 How. 7, it is said: He (the master) must take care to stow and arrange the cargo, so that the different goods may not be injured by each other, or by the motion of the vessel, or its leakage; unless, by agreement, this duty is to be performed by persons employed by the shipper. In the absence of any special agreement, his duty extends to all that relates to the lading, as well as the transportation and delivery of the goods; and for the faithful performance of those duties the ship is liable, as well as the master and owners. Even where the shipper employs the stevedores, it remains the right and duty of the master to control them if they are endangering the ship's safety. Thus in the Elton, 83 Fed. 519, where the charter party provided that the stevedore was to be employed and paid by the contractor and was to load the steamer under the master's direction, it was said: At no time does the master lose his proper place in the control of his ship and everything connected therewith. The stevedore is not an independent contractor, doing the work, which, when completed, is to be turned over to the master for his approval or disapproval; but he must load the steamer at all times under the direction and subject to the control of the master. During the voyage and until the goods are delivered he stands as bailee and has a high degree of responsibility for their safekeeping. He must pursue the voyage without deviation or delay except for the purpose of saving life. He must be watchful to protect the cargo, in whole and in parts, as against deterioration and damage. If he was a competent master, if an emergency actually existed calling for a decision, whether to make a jettison of a part of the cargo; if he appears to have arrived at his decision with due deliberation, by a fair exercise of his skill, and discretion, with no unreasonable timidity, and with an honest intent to do his duty, the jettison is lawful. It will be deemed to have been necessary for the common safety, because the person to whom the law has entrusted authority to decide upon and make it has duly exercised that authority. But though the master may jettison cargo to lighten a ship in peril, he may not, for that purpose, give cargo away. It is not his to give, and if he attempts to do so, the donee takes no title and is liable for the conversion of it as for embezzlement (The Albany, 44 Fed. 431). The duties and powers of masters of vessels in regard to cargo, as they develop out of the exigencies of navigation and the varied situation abroad, are much broader than those of the agents of carriers by land, because the circumstances are so very different. Such a master has authority to do whatever is really necessary to preserve the interests of an absent owner or consignees. He is bound to the exercise of diligence and good faith to give the owner or consignee timely information; and to follow instructions if they can be obtained. If his possession of the goods is interfered with by legal process or seizure, he must give notice, if possible, and in the meantime take all proper steps to protect or recover the goods. He may be bound to take legal proceedings or answer for the damages caused by his failure to do so. 8. Power to Sell or Mortgage Cargo.—This power to dispose of the cargo arises out of the necessity of the case. The duty is to complete the voyage, if possible. Money for repairs and expenses can frequently only be secured by disposing of some of the property in the master's charge. If so, he has the requisite power; of course, he should first realize what he can on the credit of the It cannot be doubted that a master has power to sell both vessel and cargo in certain cases of absolute necessity.... Without pretending to enumerate or classify the multitude of cases on this subject, or to state all the possible conditions under which this necessity may exist, we may say that it is applied to cases where the vessel is disabled, stranded, or sunk; where the master has no means and can raise no funds to repair her so as to prosecute his voyage; yet where the spes recuperandi may have a value in the market, or the boats, the anchor, or the rigging, are or may be saved, and have a value in market; where the cargo, though damaged, has a value, because it has a market, and it may be for the interest of all concerned that it be sold. Such dealing with the cargo must be prudent and in the interest of the cargo-owner; the master must not sacrifice the cargo to the ship more than the ship to the cargo. If he can prudently delay for communication with the owner he must do so; the exercise of this power depends upon the necessity and the utmost good faith. The case of Australasian Steam Navigation Co. v. Morse, L.R. 4 P.S. 222; 1 Aspin. 407; 27 L.T. Rep. N.S. 357; 8 Moore P.C. N.S. 482; 20 Weekly Rep. 728; 17 Eng. Reprint 393, was decided by the Privy Council in 1872, on appeal from the Supreme Court for New South Wales. It appeared that a quantity of wool had been shipped in December, 1865, on board the Boomerang by owners living inland, for transportation from Rockhampton to consignees in Sydney. The vessel stranded and filled and the cargo was so damaged by water that it became dirty, heated and liable to ignition. It was transferred to a relief vessel which had been sent out from Rockhampton and was returned to that place, where there were no facilities for storing or drying it, and it was in danger of total loss. There does not appear to have been any means of communicating promptly with the shippers, but there was testimony on the question whether it might have been possible to reach the consignees in Sydney, a distance of 900 miles, by telegraph, considering the imperfect state of the telegraph in New South Wales in 1865, the method of management of the particular telegraph line, and the fact that communication, to accomplish anything, must have been attempted on Sunday or on the The general principles of law are not in dispute, viz., that the authority of the master of a ship to sell goods of an absent owner is derived from the necessity of the situation in which he finds himself placed; and consequently that, to justify his thus dealing with the goods he must establish (1) the necessity for the sale; and (2) his inability to communicate with the owner and obtain his instructions. Under these conditions and by force of them the master becomes the agent of the owner, not only with power but under the obligation (within certain limits) of acting for him; but he is not in any case entitled to substitute his own judgment for the will of the owner in the strong act of selling the goods where it is possible, as hereafter explained, to communicate with the owner and ascertain his will. The Council defined the necessity of sale as meaning "that the course taken must be clearly highly expedient," "the best and most prudent thing to be done for the interest of the owner of the goods," and said: A sale of cargo by the master may obviously be necessary in the above sense of the word, although another course might have been taken in dealing with it; for instance, if, in this case, the wool, which had no value but as an article of commerce, could have been dried and repacked and then stored or sent on, but at a cost to the owner clearly exceeding any possible value to him when so treated, it would plainly have been the duty of the master to sell, as a better course for the interest of the owner of the property than to save it by incurring in his behalf a wasteful expenditure. In other words, a commercial necessity for the sale would then arise, justifying the master in resorting to it. On the subject of the necessity for communicating with the owners of the cargo, the Council say: The possibility of communicating with the owners must, of course, depend on the circumstances of each case, involving the consideration of the facts which create the urgency for an early sale; the distance of the port from the owners; the means of communication which may exist; and the general position of the master in the particular emergency. Such communication need only be made when an answer can be obtained, or there is a reasonable expectation that it can be obtained before the sale. When, however, there is ground for such an expectation every endeavor, so far as the position in which he is ***** There can be no doubt that the master is bound to employ the telegraph as a means of communication where it can usefully be done, but in this case the state of the particular telegraph, the way it was managed, and how far explanatory messages could be transmitted by it, having regard to the time and circumstances in which the master was placed, were proper subjects to be considered by the jury, together with the other facts, in determining the practicability of communication. The necessities which may arise in the course of the voyage are innumerable and can hardly be classified, but the settled and reasonable rule is that the power corresponds to the necessity at hand. By the contract of carriage, the shipper and consignee impliedly authorize the master, when he cannot obtain instructions, to do everything within the general scope of his employment which a rational man of business might believe that a rational owner would certainly do for himself if he were present under the circumstances at hand. And even if the acts of the master were beyond the ordinary scope of his authority, they may be ratified by his principals and every ratification is the equivalent of an original specific authority. So, while it is a general rule that an agent may not delegate his authority the master may, in proper cases, appoint another in his place and stead; and such appointee will have the like powers as the original master. Circumstances may even arise where the master may sell the cargo though the owner may be in port and does not approve his action. Thus in the case of the Brewster, 95 Fed. 1000, the ship had a cargo of coal. After commencing her voyage she was forced to put back in port. Part of the coal had become wet and liable to spontaneous combustion; it being dangerous to proceed with it, the master tendered it to the shippers, who refused to receive it. He thereupon sold it. The Court upheld his action as being for the general good of the ship and cargo. This, however, was in the exercise of the master's duty to protect the safety of the whole ship and must not be understood as modifying the rule that the master, when no considerations, except those relating to cargo, are in question, may not substitute his judgment for that of the owner of cargo, where the owner's will is ascertainable. It should be noted that all the master's powers in regard to the cargo depend on the necessity 9. Power to Sell Vessel.—Under like circumstances of necessity, the master may sell the ship herself, on a home shore as well as abroad, although never in the home port. Good faith and overwhelming necessity must concur. For his own protection, he should have a thorough examination made by competent surveyors and their sworn report stating her condition and advising a sale. In some places, this may be accomplished through a court of admiralty and this is the safest way. This subject has been discussed more fully under the caption "Title and Transfer," §16, "Sales by Master." The case of the Amelie, 6 Wall. 18, there quoted, is the leading case. It should be observed that, if the exigency is not too urgent to admit of the necessary delay, the master is bound to communicate with the owner before selling the ship, and the purchaser is bound to know the circumstances so far as he can ascertain them by reasonable inquiry. He will not acquire a good title if the emergency did not justify the sale, provided he could have so ascertained by investigation. 10. Power to Create Liens.—This power is very broad. The master has an implied power to pledge the ship for all her necessities and thus to create all classes of contract liens upon her in the absence of the owner. The order of their priority is governed by the rules applicable to all maritime liens (see Chapter IX). He may create liens of materialmen for supplies, work, labor and repairs; of sailors for their wages; for all necessary services rendered the ship; advances of money; dockage; towage; and the like. So he may, involuntarily create liens upon her for torts, as by negligent carriage of cargo, collisions, or personal injury. The leading exposition of law on this subject is that of Justice Story in the early case of the Aurora, 1 Wheat. 96, decided in 1816, wherein it was said: The law in respect to maritime hypothecations is, in general, well settled. The master of the ship is the confidential servant or agent of the owners, and they are bound to the performance of all lawful contracts made by him, relative to the usual employment of the ship, and the repairs and other necessaries furnished for her use. This rule 11. Duties on Disaster.—If the ship becomes stranded, disabled or wrecked, the master is bound to use all reasonable efforts to save all that may be rescued out of the disaster. The maritime law contemplates that he must be the last man to leave the ship in every sense of the expression. He must be diligent to obtain the aid of salvors and to protect the property in his charge. As far as may be, the cargo must be saved, stored and transhipped to its destination. The crew must have provision made for return and the wreck itself preserved as far as it is of value. He cannot give away any of the property or needlessly sacrifice any of it. He should promptly communicate with his owners and underwriters, both ship and cargo, and, until lawfully superseded, has all the authority which the necessities of the situation demand. While the master is bound to follow instructions as to the course of his voyage, and may not deviate unless forced to do so by stress of weather or for the safety of vessel, crew or cargo, he may always deviate from his course for the purpose of saving life. He is not bound to lie by or delay his voyage for the purpose of preserving the property of third persons, though he may deviate, in the exercises of a sound discretion, to save property in peril. 12. Log Book and Protests.—The log book is the ship's journal in which is entered her position from day to day, winds, currents, sea, course, speed, and all other matters of importance in relation to the vessel. The entries in it should be regularly and correctly made, as in the regular course of business, and when so kept, it will become a record of great importance in all matters relating to the ship's business and litigation. While the entries may be customarily made by the mate or other subordinate officer, the master should see that they are properly kept up and satisfy himself of their correctness as he is primarily responsible for all the transactions of the voyage. The statutes (U.S. Comp. St. 1916, §8036) require every vessel making foreign voyages, or between Atlantic and Pacific ports, to have an official log book and charge the master with twelve classes of entries therein, under penalties. All cases of offenses or of misconduct by members of the crew are required to be recorded; also all cases of illness, death, birth and marriage on board; the name of any seaman who ceases to be a member of the crew; the wages of any seaman who dies during the voyage; the sale of the effects of any such seaman, and a description of any collision that may occur. In introducing a ship's log in evidence, it must be proved in the same manner as any other document; that is to say, it enjoys no special evidentiary status. In case of damage or disaster during the voyage, or suspicion thereof, the master should within twenty-four hours of his arrival in port cause a notary public or consul to "note a protest" in regard to the fact; this "noted protest" should be extended before a notary as soon thereafter as possible, and at any rate, on arrival at destination and while recollection is fresh. The extended protest will be upon the usual form and contain a plain account of the misfortune and damage. As it will form the basis of any claim of underwriters or adjustment of damages, great care should be taken to express the facts clearly and according to their legal results. The master is charged with this duty and should execute the protest, together with his officers and such of the crew as have knowledge of the facts involved. REFERENCES FOR GENERAL READINGCommentaries, Kent, III, Lecture XLVI. Shipping and Admiralty, Parsons, Vol. II, Chapter XIV. Sea Laws, Jacobsen, Book II, Chapter I. Niagara, 21 How. 7. Nebraska, 75 Fed. 598. Rupert, 213 Fed. 263. Lombard S.S. Co. v. Anderson, 134 Fed. 568. Spedden, 184 Fed. 283. Yarkand, 120 Fed. 887.Ponce, 178 Fed. 76. Jenkins, S.S. Co. v. Preston, 186 Fed. 108. Ancaios, 170 Fed. 106. Aguan, 48 Fed. 320. Trigg, 37 Fed. 708. [5] There are a few instances in which a master need not be licensed. All masters of steamers must be licensed, all masters of sailing vessels of over 700 tons and all vessels of over 100 tons carrying passengers for hire (§4438). Other masters need not be licensed. [6] A question sometimes arises whether a particular individual occupies the position of master or not. The fact that the man is enrolled as master is not necessarily conclusive of this question. Where a man was clothed with and did actually exercise the duties of master during the illness of the registered master he was held to have been de facto master and hence not entitled to a maritime lien for his wages (Hattie Thomas, 29 Fed. 297). On the other hand, the engineer of a dredge who was highest officer on the vessel and directed the firemen and other hands but who had no authority to engage or dismiss men or purchase supplies, was held not to be the master and his lien for wages was sustained (Atlantic, 53 Fed. 607). In the Calypso, 230 Fed. 962, it was said: "the master of a ship is pro hac vice the agent of the owner and ... his appointment or authorization lies in contract, ... if the master has not been appointed by the owner enrollment cannot make him such." [7] The rules referred to are "Rules of Practice for the Courts of the United States in Admiralty and Maritime Jurisdiction on the instance side of the court." [8] In a number of leading cases attempts were made to hold the owner liable for shortage in cargo where the master had signed bills of lading for goods not actually on board. Among these are the Freeman, 18 How. 182; Grant v. Norway, 10 C.B. 665; McLean v. Fleming, L.R. 2 H.L. Sc. 128 (English cases), and American Sugar Refining Co. v. Maddock, 93 Fed. 980. The principle laid down in these cases is "not merely that the captain has no authority to sign a bill of lading in respect to goods not on board but the nature and limit of his authority are well known among mercantile persons." [9] Ragland v. Norfolk & Washington Steamboat Co., 163 Fed. 376. This was a libel in personam in which the libellant claimed damages on account of an alleged improper arrest while a passenger on board respondent's vessel. The court said: "Officers of steamboats and passenger vessels should be exceedingly careful before putting a passenger under arrest. They are the servants of the passengers on their boats, paid for the purpose of treating them kindly. The trouble on this occasion arose from a misapprehension on the part of the captain of the steamer of his power and duty as master of the ship. The master of a passenger steamer is an exceedingly important officer. He should be of exceptional firmness, intelligence and character, and more than ordinarily endowed with common sense and tact and always gentle and courteous. He has vast power in dealing with passengers in situations that are liable to and do arise on his vessel, and he may in a proper case after exhausting pacific measures, place a passenger under arrest, but, to suppose, as he testified he did, that he could delegate this authority to minor officials or others on board, cannot be sanctioned. When the time comes to arrest passengers, an occurrence on a steamboat only second in importance to navigating the vessel in safety, it is his duty to properly care for and protect them as far as is reasonably possible, and personally to exercise the responsible duties at hand, and at least give personal direction to what is being done." The Lizzie Burrill, 115 Fed. 1015, with reference to the duty of the master toward the crew. The court quotes a number of American and English authorities. The syllabus summarizes the decision as follows: "It is the duty of the master of a ship while at sea to protect his crew from violence and brutal treatment by other officers under his command. "The master of a ship while on board is the agent of the owners in respect to all matters which come within the scope of his duty, and the owners and ship are liable in damages to a seaman, not only for the unwarranted ill-treatment of such seaman by the master himself, but for his failure to perform his duty to protect the seaman from assaults and ill-treatment by other officers." [10] The frequently misused term "freight" means the compensation for carrying the cargo and not the goods thereunder. [11] See Chapter XII, "Pilotage," infra. |
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