Of the conveyance of passengers.

is seaworthy, and properly stored with water and provisions, and having a surgeon, with a medicine chest properly stored with 4 Geo. 4. c. 84. medicines, as therein provided; and that every such passenger if alive shall be landed at the port or ports to which such passenger shall have contracted to be conveyed, unless landed elsewhere at his own desire.

Allowance of provisions.

VII. The act then goes on to direct that passengers shall only be taken on board at a custom-house port, on penalty of fifty pounds for each passenger; and that masters taking more passengers than allowed, shall pay fifty pounds for each person; and that every British ship or vessel shall be provided at the time of her departure (to commence the voyage), with such a supply of good and wholesome water as will afford an allowance of five pints of water daily during the voyage for every person (including the master and crew), which supply of water shall be stowed below the lower deck; and every such ship or vessel shall also be provided with such a supply of provisions as will afford an allowance for every person (including the master and crew) during the voyage, of one pound weight of bread or biscuit, and one pound weight of beef, or three quarters of a pound weight of pork, daily, and also two pounds weight of flour, and three pounds weight of oatmeal, or of pease, or of pearl barley, and half a pound weight of butter, weekly; the said allowance to commence on the day the ship or vessel takes her departure from the port or place at which such ship or vessel shall be cleared outwards; and that the master or other person having or taking the charge or command of any British ship or vessel, failing to give out the allowance of provi sions and water hereinbefore specified, if required to do so, shall forfeit the sum of ten pounds of lawful money for each and every such neglect and omission.

VIII. The act next provides, that passengers may be relanded on application to the collector, &c. A penalty of 5007. is then imposed on the master relanding provisions: but the provisions of any passenger relinquishing the voyage are allowed to be relanded.

IX. No British vessel carrying fifty persons shall be cleared out, unless provided with a surgeon; and such surgeon is to be provided with a medicine chest properly stored with medicines. A penalty of 207. is also imposed on the master not providing a surgeon, for each person on board.

&c.

X. The act then proceeds with some minute regulations; viz. that all ships carrying passengers shall be marked with a P.; that a penalty be imposed on a master having more than the allowed number on board of 1007.; that a printed copy of the act shall be

passengers.

provided and kept on board, on penalty of 207.; and that offi- Of the concers of the navy, consuls, &c. may enquire into the execution veyance of of the act; and a penalty of 2007. is further imposed on the 4 Geo. 4. c. 84. master, who refuses to produce the act, and the copy of the licence which he has obtained for conveying passengers on board his ship.

XI. It is however provided that the act shall not extend to vessels in the service of his Majesty, &c. but that it shall extend to foreign ships belonging to states in amity with Great Britain. Fishermen employed in the Newfoundland fisheries, &c. are exempted altogether.

XII. Our law books contain several cases of importance under the head of passengers: but the greater number of them are rather cases of oppression, ill-treatment, or neglect of duties by masters, than breaches of the regulations required by the acts above cited. As passengers are a part of the crew, and in a case of imminent peril by tempest or capture may be called upon to contribute to the defence or preservation of the vessel, and as their conduct may be inconsistent with the due discipline of the ship, and may, by example, excite or cherish a mutiny in the ship, it is manifestly necessary that the captain should have some controul and authority even over the persons of passengers. Most of the cases in the books have originated in the excess and abuse of this authority and controul. If the law entertain a just jealousy of the conduct of men in the condition and circumstances of captains, as respects even the sailors, who receive a profitable pay; still more strongly does it exercise its vigilance over them as regards their treatment of passengers; men necessarily subject to their power, and though not attached to their service, paying for their

conveyance.

cise over a

passenger.

XIII. It is above said, that the passengers are bound to con- Of the authotribute their aid towards the defence of the ship, and that the rity which the captain has an authority over them so far as is necessary for that ship may exerpurpose; that he may compel them to take any station he may assign them, and may punish them for disobedience, to prevent their example from spreading to the crew. But this authority must be exercised within the limits of the necessity. The court has recognized this principle and its bounds in several cases. (u)

XIV. The first of these cases was an action for false imprisonment, by a passenger on board an East Indiaman, against the

-(a). Boyce v. Bayliffe, 1 Campb. 58., and Boyce v. Douglas, t Campb. 60.

liffe.

Boyce v. Bay captain. It appeared, in evidence, that the plaintiff was a passenger in the gunner's mess, and that the defendant was captain of the ship. On the evening of the 11th of May, 1805, near the Cape of Good Hope, two strange sale were descried in the offing, supposed to be enemies. The defendant immediately mustered all hands on deck, and assigned to every one his station. The plaintiff, with the other passengers, he ordered on the poop, where they were to fight with small arms. This order all readily obeyed, except the plaintiff, who, conceiving he had been ill used by the defendant some time before in being forbidden to walk on the poop, positively refused to go there, but offered to fight in any other part of the ship with his messmates. The defendant, for this contumacy, ordered him to be carried upon the poop, and there kept him in irons during the whole night. Next morning no enemy appeared; and the vessel arrived safe at St. Helena, on the 17th of June. Here the plaintiff quitted her, and gave 1001. for his passage home on board another ship. Upon the opening of the case Lord Ellenborough said, he did not know, till he should hear all the facts, whether the defendant might not have justified. A captain of a ship had authority to do what was necessary for the safety of those on board. On the approach of an enemy he had a right to assign them all a station, which it was their duty to accept. As the plaintiff had refused to obey the orders given him, perhaps his confinement might be necessary to the discipline of the crew, and the security of the vessel; and, if so, would be justifiable in law. But, upon its appearing that the plaintiff had been kept all night in irons on the poop, his Lordship was of opinion, that the defendant had exceeded the limits of his authority.' Upon the merits of the action, as to the plaintiff being justified in taking a passage on board another vessel at the defendant's expense, and claiming to recover the expense of that passage, Ellenborough said it was necessary the special damage should be closely connected with the trespass, which was the foundation of the action. But here the imprisonment was not the causa proxima of the transhipment. The latter was remote in point of time, and the plaintiff was not driven to it in order to redeem himself from any great peril or grievance. That a man may tranship himself and throw the expense of this upon another, the injury must continue down to the moment of his leaving the first ship; and he must then act with a view to the preservation of his life, or at least from a reasonable regard to his own safety. To shew how far attempts of this kind might be carried, if this necessary con

Lord

nection were not insisted on, his Lordship alluded to a case which used to be mentioned by Lord Alvanley, where the plaintiff complained of false imprisonmeot, per quod, being confined on shore, he lost a lieutenancy. (a)

Boyce v. Douglas (b) was an action by the same plaintiff against a passenger of the same vessel, for having assisted the captain in the alleged act of imprisonment. The jury, likewise, in this case gave a verdict for the plaintiff.

428

CHAPTER VI.

OF FREIGHT.

Of the nature of IN the preceding Chapters we have considered the several covefreight. nants of the masters and owners, and the duties arising under them. In the remaining Chapters we have to treat of the covenants, expressed or implied, of the merchant and freighters. These covenants, and the rights derived under them, are comprehended under the four heads of freight, general average, stoppage in transitu, and salvage; of which the first is generally a duty under a positive and express contract, whilst the three latter are equitable liabilities, or rights imposed, or implied by the law, under the circumstances of the relation of owners and merchants.

As freight may either be due in whole or in part, and may be payable by the consignor or consignee, this portion of our subject naturally distributes itself under the four heads of, first, the cases in which the entire freight is due; secondly, in what cases part only can be claimed; thirdly, by whom freight is payable; and, fourthly, of the lien for freight, and the action which may be maintained for it.

And, first, as to the cases in which the whole freight is due.

I. In order to explain the principle upon which the law of these cases rests, it may be useful to observe, that the labour or service rendered, for hire, by one man to another, is necessarily one of two descriptions: either it is beneficial to the hirer, pro ratá, in such part of it as may have been done; or it is totally fruitless, and without benefit to him, unless the whole service be completed. If a builder, for example, be employed to build a house, but by some accident, or his own wilfulness, should leave the work when he has only completed three parts of it, such three parts of it are manifestly of proportionate value to his employers: he may accordingly recover pro ratá for the work done, although he has not completed it. But if a person contract with a carrier or messenger