A TREATISE ON THE LAW OF SHIPPING AND ADMIRALTY. CHAPTER XIV. OF THE DUTIES AND POWERS OF THE MASTER. SECTION I. OF THE FOUNDATION AND NATURE OF THE MASTER'S AUTHORITY. THE master of a ship holds a peculiar and responsible position. As the owner is bound, in order that his ship may be seaworthy, to put in command of her a master who is fully competent in respect of skill, care, and honesty, so the master is bound to all whose interests are under his charge, as owners of the ship, or hirers of it, or as owners of the goods, or even as insurers of the ship, goods, or freight, to use proper care and skill, and entire integrity in the protection and preservation of their interests. He must see to the lading of the goods on board; and take care that the dunnage, the stowage, and arrangement of the several articles are all that they should be. He must ascertain that the condition of the ship, as to her hull, rigging, and all appurtenances, and all provisions and supplies, is satisfactory. He must take on board and carefully preserve all such papers as the ship should carry and as fall within his duty. During the whole voyage he must conduct himself, not only under ordinary circumstances, but in all exigencies and emergencies, with due discretion, courage, and energy, and complete fidelity to his duties. If the ship be wrecked, or in peril, or arrested, or captured, it is his duty to stay by her as long as any rational possibility exists that any good can be done by him, nor should he desert her until all hope is gone; to use the common phrase among seamen, "the captain should be the last man to quit the ship."1 It is impossible to define all these duties, or state them in detail. Some of them, and some of the most important among them, arise only on extraordinary occasions; and must be measured and defined by the circumstances of each case, and the exigencies which it presents. The master of a vessel at a foreign port has no authority to contract with the government of that country to convey its banished subjects to another country, and although he may justify what is done while in the foreign jurisdiction, yet as soon as he passes out of it he is guilty of a wrong, and liable criminally.2 In general, the established usage and custom of seamen, and the very nature of their duties, are the best, if not the only guide, in determining what they require. So, too, this usage gives them certain privileges, which are always subject to bargain between the owner and master, but are generally very similar in similar ships; as the privilege of carrying goods for himself, or for others, in certain parts of the ship, he receiving the freight, or a right to certain amount of tonnage. So too he has his primage, which is a small percentage on the freight, and is a perquisite over and above his wages; in this country it is, we believe, in foreign voyages 1 Thus in Propeller Niagara v. Cordes, 21 How. 7, it was held that, after a vessel was stranded, the master was guilty of culpable negligence in leaving the vessel and going home, without taking care of the cargo. Scott v. Miller, 5 Scott, 13, 15; 2 Molloy, ch. ix. s. v.; Charleton v. Cotesworth, Ryan & M. 175. And where goods, by the bill of lading, were to be delivered to the consignee, "he paying freight for the same as per charter-party, with primage and average accustomed," it was held that the master was entitled to receive primage from the consignee; although the contract between the shipowner and the agents of the consignee (there being no charter-party) was for £ 5 per ton freight, and did not notice primage; and although the master contracted with the ship-owner to receive a sum certain, "in lieu of all cabin and other allowances, to commence from the day of victualling the ship, and for which he is to mess the officers." Best v. Saunders, Moody & M. 208. In Vose v. Morton, 5 Gray, 594, the bill of lading contained the usual clause, " with primage and usually five per cent. After the voyage has commenced it seems that the owners have a right to change it reasonably and in good faith, and are then not liable to the master for all the wages or privileges previously stipulated for.1 The maxim that freight is the mother of wages does not apply to the case of the master, and, although he cannot sue the vessel in rem, yet the owners of the vessel are liable to him for wages in case of capture,2 or shipwreck, to the time of the dissolution of the contract. If the master is hired by the general owners of the vessel, but paid by the charterers, he cannot recover of the latter for his services in superintending laborers employed by the owners and underwriters in saving the vessel and cargo. But trustees who hold the title of a vessel, and control and manage her for the benefit of themselves and others, are liable for the wages of the master appointed by them.5 In a case where the master was to receive a certain sum per average accustomed." Held that accustomed qualified primage as well as average, and that evidence was admissible to show an universal and well-understood custom of the trade to pay no primage. In Rennell v. Kimball, 5 Allen, 356, the master of the vessel was to have five per cent on the gross earnings of the ship. At a foreign port the ship had earned a certain amount of money under a charterparty. The master received his primage on this amount there, and the agent of the vessel charged in his account of the disbursements of the vessel, a commission on the amount so paid. Held, that the master was liable therefor. We are unable to see any reason for this decision. It would seem clearly to be a charge on the ship, and not on the master personally. 1 Pawson v. Donnell, 1 Gill & J. 1. It was held, in this case, that if by the exercise of this privilege a special injury is done to either party, the ship-owner must bear the loss and make a reasonable indemnity; also, that if, by the change, the captain is necessarily discharged from the performance of all his duties for which a remuneration has been stipulated, his claim to such remuneration is thereby extinguished, and that if part of the duties have been executed, then such a proportion of the stipulated compensation should be allowed as appeared just on comparing the services rendered with those which remained unperformed, and for the new part of the voyage the usual compensation should be paid, so that the parties should be placed in as nearly the same situation as possible, had a previous contract for the voyage as changed been entered into between them. See also Vol. I., p. 95, note 2, and p. 97, note 1. Moore v. Jones, 15 Mass. 424. * Hawkins v. Twizell, 5 Ellis & B. 883, 34 Eng. L. & Eq. 195. McGilvery v. Capen, 7 Gray, 523. Winsor v. Sampson, 1 Sprague, 548. month as wages and a commission of five per cent, and also a proportion of the profits, it was held that he could not traffic on his own account, for his own benefit.1 3 A master who takes his wife to sea with him without permission is liable for her passage. So if he has permission to take his wife, and nothing is said about taking his child, he is liable for the child's passage. But he is not bound to pay freight for a piano belonging to his wife, which is not an incumbrance, but is used by the passengers. In the absence of any usage to the contrary, the expenses of rating and regulating a chronometer belonging to the captain, but which is used for the benefit of the ship, is to be borne by the ship, although there is another one on board belonging to the ship. Nor is the master liable for the use of state-rooms which otherwise would have remained empty. Nor for the use of an assistant steward who waited on the other passengers as well as on the captain and his family.3 A master of a vessel has been held liable to account to the managing owner for the passage-money due from passengers carried by him, even though the money never came into his hands. In Calcutta, it is customary in warm weather for the master of a vessel to ride when employed in the ship's business, and in the absence of an express agreement to the contrary, such a charge would belong to the ship to pay, and not to the master personally.5 In a case in Maine, the agreement was that 1 Mathewson v. Clarke, 6 How. 122. Rennell v. Kimball, 6 Allen, 356. 3 Winsor v. Sampson, 1 Sprague, 548. Rennell v. Kimball, 5 Allen, 356. The master was held liable in this case for passage-money under the following peculiar circumstances. The ship was chartered for a round voyage. The charterers had an agent in Calcutta, and a person who desired to come to this country went to him and paid him for his passage. This agent had charge of the disbursements of the vessel at Calcutta. The case was sent to a Master in Chancery, who found these facts, and also that for the voyage in question, under the charter-party, the owner was entitled to the cabin, for passengers, and that the master, although he acted in good faith, was liable for this amount. An exception was taken to this finding, but the ruling was sustained by the court, without assigning any reason therefor. Rennell v. Kimball, 5 Allen, 356. The case was heard by a Master in Chancery, who reported the fact of the existence of the usage, but also found that a special contract existed between the parties which took the case out of the |