services, except works of necessity, in time of danger, for the preservation of the lives and property on board, as to defend the vessel when attacked by pirates or an enemy, and to assist in perils of the sea; and even these services, it seems they are not bound to perform, if they choose to avail themselves of any means which may occur, whereby they can leave the vessel. The master's relation to them at all other times is one of peculiar delicacy. It has been held by Mr. Justice Story that the contract of passengers with the master, is not for mere ship-room, and personal existence on board, but for reasonable food, comforts, necessaries and kindness; that in respect to females, it proceeds yet farther, and includes an implied stipulation against obscenity, immodesty, and a wanton disregard of the feelings, and that a course of conduct, oppressive and malicious in these particulars, will be punished by courts of justice, as well as personal assaults."

Congress have seen fit to make special provision for the subsistence of passengers, independent of any

1 Newman v. Walters, 3 Bos. & Pul. R. 612. Boyce v. Bayliffe, 1 Camb. N. P. R. 58.

2 Chamberlain v. Chandler, 3 Mason's R. 242. The Court of Admiralty entertains jurisdiction of personal torts committed by the master on a passenger, whether by direct force as trespasses, or by consequential injuries. Ibid. See also Keene v. Lizardi, 5 Martin's Louis. R. 431. On the other hand, passengers are to conduct themselves respectfully, and with good breeding towards the master. It was recently held in England, that conduct unbecoming a gentleman, in the strict sense of the word, would justify a captain of a ship in excluding a passenger from the cuddy table, whom he had engaged by contract to provide for there; though it might be difficult to say in what degree want of polish would, in point of law, warrant such exclusion; but that it was clear that if a passenger use threats of violence towards the captain, the captain may exclude him from the table, and require him to take his meals in his own private apartment. In C. B.; M. T. 1837: Prendergast v. Compton, 8 Car. & Pa. 454.

private stores they may put on board, by requiring the master to have on board, for each and every passenger, the same kind and quantity of provisions as are required for the seamen; and the penalty of three dollars for each and every day that a passenger may be put on short allowance by a master who has not furnished his vessel as the law requires, is made recoverable in the same manner as seamen's wages.

1 Act U. S. 2 March, 1819, ch. 170, sec. 3. "That every ship or vessel bound on a voyage from the United States to any port on the continent of Europe, at the time of leaving the last port whence such ship or vessel shall sail, shall have on board, well secured under deck, at least sixty gallons of water, one hundred pounds of salted provisions, one gallon of vinegar, and one hundred pounds of wholesome ship bread, for each and every passenger on board such ship or vessel, over and above such other provisions, stores and live stock, as may be put on board by such master or passenger for their use, or that of the crew of such ship or vessel; and in like proportion for a shorter or longer voyage; and if the passengers on board of such ship or vessel in which the proportion of provisions herein directed shall not have been provided, shall at any time be put on short allowance, in water, flesh, vinegar, or bread, during any voyage aforesaid, the master and owner of such ship or vessel shall severally pay, to each and every passenger who shall have been put on short allowance as aforesaid, the sum of three dollars for each and every day they may have been on such short allowance; to be recovered in the same manner as seaman's wages are or may be recovered." For the construction of the analogous statute in reference to seaman, see post, Part 2, ch 3.

The other provisions of this Act, containing directions to masters of vessels respecting the numbers of passengers, the list or manifest to be delivered to the collector, &c. &c. will be found in the Appendix.

CHAPTER II.

OF THE AUTHORITY AND OFFICE OF THE MATE.

THE mate1 is an officer participating for some purposes in the functions of the master, while the latter is in the exercise of his office, and succeeding fully to those functions, when the master dies, or is absent. As long, however, as the master is on board, the mate's is essentially a subordinate station; and its general scope consists in carrying into execution the actual or implied commands of the master. His general authority extends to the issuing of lawful commands, of himself—which must be promptly obeyed by the crew, as if emanating from the master, without waiting to question or ascertain the fact-subject to his responsibility to the superior authority of the master for the propriety or reasonableness of the order. His duties are to exercise a general superintendance over every thing that concerns the ship's service, and to advise the master of whatever requires his attention. By the usage generally prevailing, it is also

3

1 In Latin, proreta, in French, contremaitre; the former term being given to him because anciently he commanded from the prow to the mizzen mast. 2 For the reason assigned with sententious naivetè by Valin-" car deux maitres, independans l'un de l'autre, seroient de trop sur un navire." Com. tome i, p. 494.

3 Consolato del Mare, ch. .17, [62,] Pardessus, tome ii, p. 70. L'Ord. de la Marine, liv. 2, tit. 5. Valin, Com. tome i, p. 494, et seq.

his duty to superintend the receiving and stowing and delivery of the cargo.1

S

His general function, while at sea, is to superintend the sailing of the vessel, in which he is the representative and aid of the master. By the general maritime usage it is also his duty to keep the log-book, in which he should make a faithful and minute journal of the voyage. He should be a person of activity, fidelity, vigilance, prudence and good seamanship. He should have that dignity of character that will keep him from too great familiarity with the crew, and he should especially avoid making them the confidants of any discontents he may entertain towards the master. In fine, it may not be unsuitable to add, in the impressive injunction of the Consulate of the Sea, that "he ought to conduct himself with fidelity towards the merchants, the master, the mariners, the passengers, and generally towards all the world."5

Like that of every other seaman, the contract of the mate implies competency for the station which he assumes. By the Consolato, the mate who was incompe

' In stating the duties of the mate, it is not my purpose to assign more than the general outline of his office, his particular duties being rather matter of fact, than of law, depending on the usage.

2 Jacobsen's Sea Laws, book 2, ch. 2.

2 The importance of this journal cannot be too highly estimated by a faithful seaman. It is made by the law of some countries of equal authenticity with notarial instruments; and by our law, it is recorded evidence for some important purposes. It is at all times of great consequence upon questions of general average, insurance, salvage, and other controversies, in which the ship or owners may be involved in time of peace, and the predicaments in which the vessel may be found in time of war.

• Thompson v. Busch, 4 Washington's R. 338.

& Consolato, ut supra.

tent to his duties could be displaced by the master; and he might be compelled to pay any damage that had resulted from his want of skill; and the Danish code inflicts capital punishment, if he is unable to make good such damage. It has been held in some of our own courts, that the mate may forfeit his right to command and wages, by fraudulent, unfaithful and illegal practices, by gross and repeated negligence, or flagrant, wilful and unjustifiable disobedience, by incapacity brought upon him by his own fault, or palpable want of skill in his profession; but the causes of removal should be evident, strong, and legally important. It has also been considered that the ground upon which the contract may thus be rescinded by the master, for incompetency, is an actual or constructive fraud of the seaman in representing himself competent; but if the master took him with a previous personal knowledge of his capabilities, he cannot afterwards displace him for want of professional skill alone. This must be restricted, however, to the case of a party originally shipping in the character of mate, or other particular capacity, and making his contract for the office; for it seems that temporary appointments made by the master during the voyage are held more at his pleasure.5

1 Consolato del Mare, ut supra.

2 Jacobsen's Sea Laws, book 2, ch. 2.

3 Thompson v. Busch, 4 Washington's R. 338. Atkyns v. Burrows, 1 Peters's Adm. R. 244. Mitchell v. The Orozimbo, 1 Peters's Adm. R. 250. See also Robinett v. The Exeter, 2 Robinson's Adm. R. 261.

4 Mitchell v. The Orozimbo, ut supra.

5 Wood et al. v. The Nimrod, Gilpin's R. 83.-There is no positive rule of law, applicable to all cases, so far as I am informed, which requires that the mate should be possessed of the nautical skill and science of a navi