But by the third section, if such bill is filed by or on behalf of the part-owners, the plaintiff must make affidavit that he does not collude with the defendants, and must offer to pay the value of the ship and freight, as the Court shall direct. 4. And by the fourth section, it is provided, declared, and enacted, "That nothing in this [265] "present act contained shall extend, or be con"strued to extend, to impeach, lessen, or discharge “ any remedy, which any person or persons now hath, "or shall, or may hereafter have against all, every, or "any the master and mariners of such ship or vessel, ❝for or in respect of any embezzlement, secreting, or "making away with any gold, silver, diamonds, jewels, "precious stones, or merchandize, shipped or loaded on board such ship or vessel, or on account of any fraud, abuse, or malversation of and in such master ❝ and mariners respectively; but that it shall and may "be lawful to and for every person or persons so injur❝ed or damaged, to pursue and take such remedy for "the same, against the said master and mariners re"spectively, as he or they might have done before the "making of this act." 5. By this statute therefore the legal responsibility of the master is left unaltered in all the cases before enumerated, and that of the owners also in the case of a robbery committed by persons not belonging to the ship. But where a ship in the river Thames was forcibly plundered of dollars during the night by a gang of robbers, in consequence of information given by one of the mariners of the ship, who afterwards shared the booty; the responsibility of the owners was held not to extend beyond the value of the ship and freight by vire tue of this statute (m). 6. Immediately after the decision of this case, [266] and in consequence of the danger, to which the facts, that were disclosed in it, shewed the owners to be exposed, another petition was presented to the House of Commons (n) on behalf of several owners of ships belonging to London and other parts, and in compliance therewith, another statute was passed (0), fixing the same limits to the responsibility of the owners in the several cases mentioned in the preceding statute, and also in the case of robbery, "although the master or "mariners shall not be in anywise concerned in or privy -66 to such robbery, embezzlement, secreting, or making away with." This statute also contains the same provisions as the preceding act, for equal distribution and discovery by bill in equity, and also for remedy against the master and mariners: and (as was mentioned in the preceding chapter) has entirely taken away the responsibility of the owners in the case of loss or damage by fire. 7. It may be observed that in those parts of each of these statutes, which treat of the damage and responsibility, the words "owner or owners of any ship or vessel” are used, and not the word part-owners, although the part-owner by name is enabled to file a bill in equity on behalf of himself and all the other part-owners. And therefore it may be questioned whether if any [267] one part-owner should be privy to an act of mal-practice, and so clearly be excluded from (m) Sutton v. Mitchell, 1 Ter. Rep. K. B. p. 18. (n) See Commons Journals for the year 1786, page 296. This act also was passed without a division the benefits of the statute, the other part-owners would be excluded also. But as the master is very often a part-owner, and the first statute was evidently framed to ease the owners from a part of their responsibility for his misconduct, it should seem that by his privity, they would not lose the benefit of that statute; and as both statutes are made in pari materia, and expressed in the same terms, probably by the true construction of both, one part-owner cannot prejudice the others by his own individual misconduct. CHAPTER THE SIXTH. OF THE GENERAL DUTIES OF THE MERCHANT.. 1. THE general duties of the merchant (those only excepted, which relate to the payment of freight and of gross average, and which will form the subject of distinct chapters) are comprised in a very narrow compass the hirer of any thing must use it in a lawful manner, and according to the purpose, for which it is let. The merchant must lade no prohibited or uncus tomed goods, by which the ship may be subject[268] ed to detention or forfeiture (a). (1) In general, even in the case of affreightment by charter-party, the command of the ship is reserved to the owners or the master appointed by them, and therefore (a) Roccus, not. 85. Dig. 19. 2. tit. 3. fret. art. 9. 61. 1. French Ordinance, liv. 3. (1) Therefore where goods were clandestinely shipped on board an American ship, bound from New-York to Scotland, which goods were prohibited by the laws of Great Britain from being imported into that country, and in consequence thereof, the ship was seized and the master was compelled to pay a large sum of money for her release, the Court held the action maintainable, although it was contended on behalf of the defendant," that no country takes cognizance of the municipal laws of another country, and that the lading of such goods here was lawful, and therefore the act was not tortious, but damnum absque injuriâ. Smith v. Elder, 3 John. Rép. 105. the merchant has not the power or opportunity of detaining the ship beyond the stipulated time, or employing it in any other than the stipulated service. But by the charter-parties under which ships are let to freight to the East-India Company, the command and disposal of the ship are reserved to the company, and the master, although appointed by the owners, is bound to obey the orders of the company at home, and of their factors and servants abroad; and it is always stipulated that nothing shall. be paid by the company for freight or demurrage, unless the ship returns home in safety (b). Yet in a case where the company detained a ship so long in India, that she became unfit for the voyage home, and was disposed of there, so that by reason of the particular stipulation the owners could sustain no action at law upon the contract, a Court of Equity ordered the company to make a proper allowance for the actual and probable earnings and the value of the ship (c). So where a ship, hired by the company to be employed according to the then usual terms of their charter-parties in trade and warfare, was sent upon a service of observation and discovery to explore the passage to the eastward of the Isle of Banca, and there struck on a rock, and was lost, [269] and the owners brought an action against the company for thus exposing the ship to danger in a service not warranted by the charter-party without their knowledge or consent, Lord Kenyon, before whom the cause was tried, declared himself to be of opinion that, the action was proper in point of general principle, but the plaintiffs failed in their suit, because it appeared (b) See the clauses cited in Hotham v. East-India Company, ante, chap. 1. of this part, sect. 14. (c) Edwin & others v. East-India Company, 2 Vern. 210. |