The Seaman's Friend: Containing a treatise on practical seamanship, with plates, a dictionary of sea terms, customs and usages of the merchant serviceDana, Richard Henry
Science
The Seaman's Friend: Containing a treatise on practical seamanship, with plates, a dictionary of sea terms, customs and usages of the merchant service
Dana, Richard Henry
Maritime law; Merchant marine; Naval art and science; Naval art and science -- Dictionaries; Seamanship
If these means fail, he is next to hypothecate (that is, pledge) the
ship (bottomry,) or cargo (respondentia,) or freight, or sell part of
the cargo, according to circumstances. If the owner of the ship is also
owner of the cargo, the better opinion seems to be, that the master may
take whichever of these means can be adopted with the least sacrifice
of the owner's interest; though, probably, selling part of the cargo
would in almost all cases be the least favorable course for all the
purposes of the voyage.[52] If the owner of the ship is not owner of
the cargo, the master should bear in mind that he is agent of the
former, and has generally no further control over the cargo than for
safe keeping and transportation.[53] He should, therefore, first
exhaust the credit of the ship and freight by hypothecation; and if
these means fail, he then becomes, by necessity, agent for the owners
of the cargo for the purposes of the voyage, and may hypothecate the
whole, or sell a part, according to circumstances. As to selling part,
he should remember that his duty is to carry forward the objects of the
voyage, and that selling a large part would probably impair these
objects more than hypothecating the whole.[54]
[52] 2 Wash. C. C. 226.
[53] Do.
[54] 3 Mason, 255. 1 Wash. C. C. 49; 2 Do. 226. 3 Rob. 240.
In no case can any of the cargo be sold or hypothecated to repair or
supply the ship, unless these repairs and supplies are to be for the
benefit of the cargo. The strictest proof is always required that the
repairs were in the first place necessary, and, in the next place, that
they were for the benefit of the cargo, and not merely for the good of
the ship-owner.[55]
[55] 2 Wash. 226. 3 Rob. 240.
A further question arises, whether the master has ever, and when, the
right to sell the whole cargo and the ship itself. If it should be
impossible to repair the ship and send her on the voyage by any of the
means before mentioned, it then becomes the master's duty to forward
the cargo to the port of destination by some other conveyance. If
neither of these things can be done, then he becomes, from necessity,
agent of the owner of the cargo, and must make the best disposition of
it in his power. If the goods are perishable, the owner cannot be
consulted within a reasonable time, and has no agent in the port, and
something must be done with the cargo, and there is no one else to
act--then the master must dispose of it in such a way as best to
subserve the interest of its owner. He should take the advice of the
commercial agent or other suitable persons, should also use his own
judgment and act with good faith, and take care to preserve evidence
that he has so done. If all these requisites are not complied with, he
will incur the danger of having his acts set aside.[56]
[56] 2 Wash. C. C. 150. 3 Rob. 240.
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