The owners are not, however, responsible for damage wilfully done by a master, where the act is not within the scope of his ordinary duty or sanctioned by them (d). Where a master, acting bonâ fide and meaning to execute the duties of his employment, sold a portion of the cargo under circumstances not justifying the step, this was held to be a joint conversion by him and his owner, for which both were liable to the merchant in an action of trover (e).

FREIGHTERS.

The master, whilst afloat, or in a foreign port where there is HIS POWER no agent of the shipper, acts in a double capacity; he is the TO BIND THE agent of the owner as to the ship and freight, and of the merchant as to the goods (ƒ); and he should in these cases do that which, in the exercise of a sound discretion, is the best for both parties (g). One of the most critical points he has to decide is, whether, in the event of the ship receiving such an injury during the voyage as to prevent her from completing it under any circumstances, the cargo should be transhipped, so that it may be conveyed to its port of destination, or should be sold (). He cannot bind the merchant by a contract for the forwarding of the goods in a substituted ship, and at another rate of freight, without making every reasonable effort to communicate with the merchant (i). The implied authority of the master to sell the cargo only arises in cases where there is a necessity for an early sale and communication with the owner is impracticable (j).

STRUCTIVE

TOTAL LOSS.

Another important agency which the master may be called AGENCY IN upon to exercise arises in cases of constructive total loss. In CASES OF CONthese cases it often becomes a question whose agent he is in the performance of any particular acts which he may do for the benefit of all concerned. The true rule appears to be, that, so

Fenton v. Dublin Steam Packet Company,

8 A. & E. 835.

(d) The Druid, 1 W. Rob. 391; The Ida, 1 Lush. 6.

(e) Ewbank v. Nutting, 7 C. B. 797; Schuster v. M'Kellar, 7 E. & B. 704.

(f) Per Lord Denman, in Shipton v. Thornton, 9 A. & E. 337. He is not, however, the agent of the owners of the cargo unless in cases of necessity. Per Lord Stowell, in The Mercurius, 1 Rob. 84. See Wagstaff v. Anderson, 4 C. P. D. 283, where, having regard to the special terms of the charterparty, it was sought to render the charterers liable for the act of the

master in improperly selling the cargo;
it was held that the master in selling
the cargo did not act as the agent of
the charterers.

(9) Per Lord Mansfield, Milles v.
Fletcher, Doug. 234; per Buller, J.,
1 T. R. 612, note; Matthews v. Gibbs,
30 L. J., Q. B. 55; Notara v. Henderson,
L. R., 7 Q. B. 225. See also the judg-
ment of the Privy Council in The
Cargo ex Argos, L. R., 5 P. C. 165.

(h) See post, Chap. VI., CONTRACT
OF AFFREIGHTMENT.

(i) See Gibbs v. Grey, 2 H. & N. 22.
(j) Morse v. The Australasian Steam
N. Co., L. R., 4 P. C. 222.

JETTISON.

RANSOM.

long as he acts bonâ fide and within the limits of his authority, he is the agent (although involuntarily created) of that person, whether the assured, or the underwriter, in whom the interest and risk may be vested at the time, although that fact may not be determined until afterwards (k).

Another instance in which the master must exercise the discretion of an authorized agent over the cargo arises in the case of jettison, which is the throwing overboard of goods from necessity, to lighten the vessel in a storm, or to prevent capture. Whether such a necessity exists as to justify the sacrifice depends upon the circumstances of each case; but if it does, the authority of the master is clear. He may, in the reasonable exercise of his discretion, select what articles and determine what quantity shall be sacrificed; indeed, in cases of extreme necessity, when the lives of the crew cannot otherwise be saved, he may throw the whole cargo overboard (1).

There exists also, by the general maritime law, a right on the part of the master, when the ship or cargo is captured by an enemy, or by pirates, to ransom it on behalf of the owners to the extent of its value (m). In the former of these cases, however, the legislature of this country has, from obvious motives. of policy, from time to time passed provisions restricting this right. The act now in force is the "Prize Act, 1864” (»), and the 45th section enables the Queen, by order in council, to make orders for prohibiting or allowing the ransoming of any ship or goods belonging to her subjects, and captured by her Majesty's enemies (o). But in the latter case the right still remains.

(k) Post, Chap. VII., INSURANCE. In Benson v. Chapman, 2 H. of L. Cases 720, it is said that the duty of the master, in case of damage to the ship, is to do all that can be done towards bringing the adventure to a successful termination, to repair the ship, if there be a reasonable prospect of doing so at an expense not ruinous, and to bring home the cargo, and earn the freight if possible.

Per Lord Stowell, in The Grati

tudine, 3 Rob. 258; and post, Chap. VI., CONTRACT OF AFFREIGHTMENT.

(m) Per Lord Stowell, in The Gratitudine, ubi sup.

(n) The 27 & 28 Vict. c. 25, Appendix, p. ccxlix. The 45th section of the act confers jurisdiction in cases of ransom upon the Admiralty Division of the High Court.

(0) Post, Chap. VI., CONTRACT OF AFFREIGHTMENT, and the 27 & 28 Vict. c. 25, s. 45.

THE ORDINARY CREW.

CERTIFICATED
ENGINEERS IN

In an earlier Chapter some of the rights and duties of the crew have been incidentally mentioned; it is now proposed to consider the subject more fully.

The crew, in the ordinary sense of the word, includes the whole of the ship's company, except the master; that is to say, the mate or mates who are next in authority after the master, the carpenter, the carpenter's mate, the boatswain, the sailmaker, the steward, the cook, and the able and ordinary seamen and boys (a). To these must be added in the case of steam ships the engineers and firemen. Each member of the crew has special duties to perform, which are well defined by usage; any detail, however, as to the mode in which these duties are distributed, would be out of place in the present work (b).

We have considered in the preceding Chapter the statutory regulations with reference to certificated masters and mates on board foreign-going ships and home trade passenger ships (c); and it is necessary to call attention to those regarding certificated engineers on board of steam ships.

Section 5 of the Merchant Shipping Act, 1862, provides, that STEAM SHIPS. every steam ship required by the Merchant Shipping Act, 1854, to have on board a master possessing a certificate from the Board of Trade, must also carry an engineer or engineers possessing a certificate (d) from the Board as follows:

(1.) Engineers' certificates are to be of two grades, viz., "first

(a) The word "seamen," as used in the Merchant Shipping Acts, includes every person (except masters, pilots, and apprentices duly indentured and registered) employed or engaged in any capacity on board any ship, The M. S. Act, 1854, s. 2.

(b) See, upon this subject, Dana's Seaman's Manual.

(e) Supra, p. 115.

(d) The declarations required by sect. 309 of the M. S. Act, 1854, to be given by engineer surveyors on the survey of passenger steamers, must now contain a statement with reference to the engineers' certificates in the cases provided for by the M. S. Act, 1862; see sect. 12 of that act, and post, Chap. XI. PASSENGERS.

class engineers certificates," and "second class engineers
certificates:"

(2.) Every foreign going steam ship of one hundred nominal
horse power or upwards must have as its first and second
engineers two certificated engineers, the first possessing
a "first class engineers certificate," and the second pos-
sessing a "second class engineers certificate" or a certi-
ficate of the higher grade:

(3.) Every foreign going steam ship of less than one hundred
nominal horse power must have as its only or first
engineer an engineer possessing a "second class engi-
neers certificate," or a certificate of the higher grade:
(4.) Every sea going home trade passenger steam ship must
have as its only or first engineer an engineer possessing
a "second class engineers certificate," or a certificate of
the higher grade :

(5.) Every person who, having been engaged to serve in any
of the above capacities in any such steam ship as is above
mentioned, goes to sea in that capacity without being at
the time entitled to and possessed of such certificate as is
required by the act, and every person who employs any
one in any of the above capacities without ascertaining
that he is at the time entitled to and possessed of such a
certificate, incurs a penalty not exceeding fifty pounds.

By sect. 6 of the same act, the Board of Trade is required to Examination. examine persons who are desirous of obtaining certificates of competency as engineers; and may from time to time appoint and remove examiners, and award the remuneration to be paid to them; it may also lay down rules as to the qualification of applicants, and as to the times and places of examination; and generally do all acts which it thinks expedient in order to carry into effect the examination of such engineers (e).

By sects. 7 and 8, applicants for examination must pay such fees, not exceeding the sums specified in a table marked (B.) in the schedule to the act, as the Board may direct (ƒ); and the Certificates of Board must deliver to every applicant who is duly reported to competency have passed the examination satisfactorily, and to have given satisfactory evidence of his sobriety, experience, and ability, a

(e) As to the authority of the Board of Trade to establish mercantile marine offices where none exist, see supra,

p. 114.

(f) See Appendix, "Forms," Nos. 23 and 55.

and service,