[46] 89-Failure to Take Aboard Cargo Consigned for Shipment

If a patron of a vessel or a clerk acting as his representative agreed to carry cargo of some merchant, and this agreement was made in writing or in the presence of witnesses, or by a handshake, or by an entry being made in the ship's register, he must fulfill this obligation. If the master of a vessel cannot take aboard such a cargo and leaves it behind, and the merchant informs him that if such cargo is left behind, the patron will be held responsible for it, this responsibility of abandoning such cargo will fall upon the shoulders of the patron, unless before setting sail he would reach a new agreement with the merchant. The patron will be forced to replace or pay for such abandoned cargo based on the amount such cargo would sell for at the port of destination where he was to deliver it.

If such cargo abandoned by the patron of a vessel should be lost or suffer partial or total spoilage, the damage will be assessed against the patron who had left the cargo under such conditions. If due to some misfortune, it should pass that the cargo aboard the vessel, that is to mean, all the goods and merchandise carried by the vessel, should be completely lost, while the cargo abandoned on shore should be safe, the latter will belong to the patron of the vessel and not to the merchants to whom it actually belongs.

It is justifiable that if the patron of the vessel is required to return to the merchants as much cargo as they had owned, or to pay them the amount the cargo would be worth at the place of destination, and thus he will suffer a serious loss, it is equally just that a merchant or merchants suffer the loss while the patron gain, when all the goods carried aboard the vessel are lost while the goods abandoned on the [47] shore are saved. Why? Because it would be contrary to reason and justice that patrons of vessels should find themselves in a more disadvantageous situation than the merchants.

If it should happen that the cargo aboard the vessel is salvaged and the cargo abandoned on shore is lost, the patron, as stated above, must reimburse the merchants for it; if the cargo abandoned on shore was saved while the cargo aboard the vessel was lost, the patron of the vessel will not be required to pay any damages to the merchants and thus will benefit by this.

If, however, the cargo aboard the vessel is salvaged, the master of the vessel is required to reimburse the merchants, as has been stated above, with this reservation: that the merchants must deduct from the damage claims, which the patron must or should pay them, all expenses which they incurred or had to incur, had the patron taken aboard the rest of the cargo which had been left on shore. Excluded from this should be the cost of provisions from which the merchants cannot deduct anything, because they would have had to bear the cost of the provisions if the cargo had been taken aboard; therefore, it would be unjust to deduct anything in such a situation.

If only part of the cargo aboard is lost, the damage must be deducted and taken away proportionally to the amount and evaluation of the damage which the patron of the vessel is obliged to pay the merchants for merchandise left on shore. Furthermore, if it was necessary to dump the cargo overboard due to some misfortune, the value of the cargo thrown overboard must be subtracted proportionally from the value of the damages for the merchandise left on shore. If it should happen that a patron of a vessel would take aboard only part of the cargo on which shipping charges had been paid and had left part of it on shore, the merchants will make a deposition, of which we have spoken above, and the patron will be held accountable in the manner prescribed above.

However, if the merchants, aware of the fact that part or all of their cargo has been left behind, had made no comment about this, and did not call to the attention of the patron the abandonment of their cargo or oppose this action in any other way, or if the patron of the vessel informed them himself of the situation, or if he had ordered that they be informed about this, that they will bear the responsibility for the cargo left behind, and these merchants would not say anything or oppose it, or warn him of his responsibility for the cargo, they will suffer the damages if the abandoned cargo is lost.

What is the reason for this? Because the merchants did not protest, did not disapprove of this, did not remind the patron of the vessel of the previously mentioned responsibility when they saw that part [48] or all their cargo was being left behind on shore that he, not they, would assume the damage for the cargo, should it be lost. In addition, if they had made proper depositions to the master of the vessel and had reminded him of his obligations , the patron, realizing that he, not they, will be held accountable for the damages of the cargo left behind, would have taken better care of it.

There is yet another reason. If a patron of the vessel had stated that the merchants themselves would be liable for the damages to the cargo left behind on the shore, and they did not disapprove of this and did not caution him of his responsibility, it appears that it would be proper to interpret that the merchants were not interested in their own cargo which was left behind on the shore, since they had shown no opposition to this state of affairs and did not warn him. Therefore, it is just that the merchants themselves, as stated above, should bear the sole responsibility for the cargo left behind on the shore, regardless of whether or not this cargo was lost.

If it should happen that the merchants ask the patron of the vessel engaged that he load the cargo remaining on shore on another vessel and he accedes to their wishes, and then this cargo should be lost in part or completely or is damaged or deteriorates, the patron of the vessel cannot be held responsible for this since he loaded such cargo aboard another vessel with the express permission and knowledge of the merchants.

If a patron of a vessel loaded the remaining cargo on another vessel without the knowledge of the merchants to whom it belongs, and this cargo is partly or totally damaged, destroyed, or lost, he will be required to pay all the damages, because, as stated above, he loaded their cargo on another barque or vessel without their express permission and approval; and this is proper. Why? Because no one should make a disposition of the property of another except to the degree that the owner of the property consents and gives his approval.

If it should happen that the merchants engage a vessel and show their cargo to the patron of this vessel, and inform him that they cannot remain aboard but must leave, and entrust the cargo to his care, and if he agrees to accept this responsibility, and the merchants trusting him will depart after reaching an agreement with him as stated above, he is required to carry the cargo which he accepted and took under his command and care, in the manner mentioned above, unless during the loading of the vessel some unfortunate accident should occur, in which case he cannot be held responsible for such cargo. Why? Because no one accepts responsibility which would result in personal loss.

If it should happen that he would abandon such cargo on shore, he [49] will be required to return to the merchants in quality and quantity or in cash the value of the cargo he had agreed to carry, the value to be determined by the price of the cargo at the location where he was to proceed to unload such cargo. Thus the patron of a vessel is responsible and should be held accountable for the cargo he left behind, regardless of whether such cargo is safe or is lost, because, as has been said above, he had taken this cargo under his trust and command, except under the circumstances mentioned above, which could have taken place before or after loading the cargo aboard.

Further, if a merchant engages a vessel to ship some cargo and after paying for the lading charges leaves the vessel with or without the knowledge of the patron of the vessel, who did not accept such cargo under his command and care, as mentioned above, and at the moment the vessel is being cargoed, the patron or some other person identifies and locates the cargo, it should be loaded aboard the vessel.

If the patron or a member of his crew cannot identify and locate this cargo while the vessel is being loaded and due to this the cargo remains on shore , whether this cargo is lost or is safe , the patron of the vessel will not be responsible for its well-being and he will not be forced to pay any damages in case of spoilage or disappearance of this cargo, because the merchant left the site under the circumstances mentioned above. There is, however, one exception, and that is, if the merchant left some person with instructions to show the patron of the vessel or his representative (i. e., the clerk) the location of the cargo during the loading operations.

If the person left behind by the merchant to show the cargo to the patron of the vessel, shows it to him and releases to him the custody of it when the patron or a person designated by him is in charge of loading the vessel, and the patron or his substitute refuses to accept this cargo and refuses to load it aboard the vessel, and abandons it on shore, whether this cargo remains safe or is lost, the patron of the vessel will be held responsible for it to the same degree as if the above mentioned merchant was present personally, because he had left a person in charge who in his name attempted to release this cargo for shipment.

It is necessary, however, that the merchant or the person designated by him to release the cargo will be able to prove the truthfulness of their accusations against the patron. If, therefore, the merchant or the person he designated in his place to facilitate the transfer of the cargo, as mentioned above, can prove his claim, the patron of the vessel will be required to pay the merchant for all resulting damages, as enumerated above, following the procedure outlined above.

[50] If, however, the merchant cannot prove what has been discussed above, or if the person who was acting in his stead did not designate and deliver the cargo to the patron of the vessel, and thus the cargo was left behind on the shore, the patron will not be responsible for the damages , whether the cargo left behind remained in good condition or was lost, because the merchant left the cargo without taking proper care of it. It is, therefore, proper that the merchant would suffer the damage , because he deserved this, failing to take proper care of his cargo; however, under all other circumstances which have been discussed above the patron shall reimburse the merchants for all their expenses and losses except for the cost of the provisions.

If it should happen that after the departure of the aforementioned merchant, the patron who accepted the former's cargo under his protection and command should load it aboard another vessel and subsequently this cargo is damaged in some manner or is partly or completely lost, or the vessel on which the cargo was loaded fails to arrive at the port of destination of the cargo even though the cargo under the personal command of the patron arrives there on time and, due to the late arrival of the above mentioned cargo, its value decreased, which would not have happened had the cargo been placed aboard the vessel personally commanded by the original patron, he will be required to pay the full damages because he loaded this cargo aboard another vessel, not his own, without the permission of the party to whom the cargo belonged.

Further, if the merchant had reached an agreement with the patron before the former's departure that if the patron cannot take his goods aboard his own vessel, he may load it aboard another vessel, and after conclusion of such an agreement the patron had it loaded on another vessel, the patron shall not be required to pay any damages, whether the cargo is lost or not, or whether it arrives on time or late, because there had been an agreement made before the departure of the merchant that the patron could load this cargo aboard another vessel if he could not have it loaded aboard his own, unless the patron has failed to fulfill his obligations, that is to say, that the patron left this cargo on shore while he loaded other cargo aboard his vessel.

If the patron reached the original agreement with the merchants to load their cargo on another vessel, and the master of the second vessel left it on shore (this means that the cargo will remain at the spot where lading was arranged for), the master of the second vessel will be required to pay the merchants all damages suffered in the same manner as the patron of the vessel who had originally made the agreement would have been forced to pay had he taken this cargo aboard his own vessel, excluding completely and without any reservations [51] all agreements and protocols concluded between the patron and the merchants, for any reason whatsoever.

This article was written for the reasons stated above.

90-A Patron Who Abandons Cargo Upon Which Lading Charges Had Been Paid in Advance

A patron of a vessel who has contracted to transport cargo by written agreement or orally in the presence of witnesses or by an entry into the ships register or by a handclasp ⁽¹⁾ shall be obliged to carry such cargo. If he refuses to carry this cargo or cannot load it aboard his vessel and abandons it on shore, he shall be required to repay the merchants with the same quality and quantity of cargo or its equivalent in cash, at the price this cargo would have brought at the port of its destination, unless the patron can make or had made a different agreement with the merchants before the vessel left the port where the original arrangements for the shipment of the cargo were made. However, if the merchandise left behind has been lost, and the patron of the vessel failed to arrive at some agreement relating to this, the loss of this cargo will be attributed to the patron, who will be forced to pay the merchants in the manner discussed above.

This article was written because many patrons of vessels preparing to undertake a journey demand very low lading fees, and when the journey is almost ready to begin find other merchants who are willing to pay high freight charges; if the above mentioned regulations were lacking, the cargo on which low shipping charges were paid would be left behind, and the cargo on which high lading charges were paid would be loaded aboard the vessels.

91-Damage of Cargo Bound for Specified Destination

If a patron of a vessel which is located in a specific locality agrees to transport cargo to another agreed location, he shall transport this cargo to the specified location in his own vessel.

If, however, a master of a vessel, without the knowledge and approval of the merchants, should load their cargo aboard another vessel (even though this vessel was larger and more seaworthy than his own vessel), and this cargo be lost or damaged, or the party to whom this cargo belongs should suffer some damage or bear some expense due to this, the patron of the vessel who was originally engaged to carry the cargo shall be required to pay for the lost cargo and all [52] other damages and expenses suffered by the owner of the cargo, and the claim made under oath by the owner of this cargo shall be accepted without question.

Further, if the patron informs the merchants that he does not intend to proceed to the place to which he had promised to deliver their cargo, and also informs them that he would like to load their cargo on another vessel, which he will name, he may do so if the merchants agree. However, if the merchants refuse to agree to such an arrangement, he cannot proceed to do this, but if he does load their cargo on such a vessel, he will be held responsible for their cargo, as stated before. In the event that the merchants agree to this arrangement, and the cargo is damaged or lost, the patron cannot be held responsible for any part of the damage claimed because he had proceeded in this matter with the knowledge and approval of the majority of the merchants concerned.

92-Regarding Proper Equipment, Sailors, Helmsman, and Cargoing of Merchandise

The patron must equip the vessel with proper sails, which he has shown the merchants or which he claimed he had aboard in making a written deposition, or had stated this orally in the presence of the helmsman and the crew. He cannot discharge the navigator or any of the sailors without the agreement of the merchants until the completion of the voyage, nor can he sell or give away any sails or other equipment which belong aboard the vessel. He is also required to supply members of his crew for the cargoing of the vessel.

93-Vessels Sailing in a Convoy

The patron of a vessel must sail in convoy with other vessels, be they large or small, if the merchants demand it. In addition, if the patron wishes to sail in convoy with another vessel, be it large or small, he may do so after seeking the counsel of and receiving the agreement of the navigator, officers of the stern deck, and the rest of the crew; likewise, when there appears to be danger from meeting a privateering or pirate vessel, ⁽²⁾ they cannot and should not oppose sailing in convoy, unless they judge that to do this would result in damages to them or to the vessel.

[53] 94-Obligation to Aid Another Vessel in Distress

If a vessel located in some specified place is ready to set sail for another place of destination, and some other vessel, larger, smaller, or of the same size , bound in the same direction, does not dare to sail alone due to fear of enemy vessels, and its master begs the master of the former vessel to attach a line so that the two vessels may sail together, and this is agreed to, the promise must be fulfilled unless stormy weather prevents it.

If these two vessels sail out from the location where such an agreement was made or the promise given, and the patron of the vessel who promised to attach the towing line to the other vessel does not intend, or fails, to keep his promise, and the patron who had been promised this aid sailed out feeling secure, should he suffer any damage from pirates or other unfriendly craft before reaching the port to which he was promised help by the former patron, the patron who had promised him a tow line and had failed to do this will be required to reimburse him for all the damages, without any dispute.

What is the reason for this? Because if the patron of the vessel which was to provide the tow line had not made such a promise, the patron of the first vessel would not have ventured to sail. He actually sailed feeling safe because of the terms of the agreement he had reached with the master of the vessel who had promised him assistance.

If, however, a vessel sailed without receiving promise of aid from another vessel, and if the former vessel is damaged, its owners and no one else will be liable for the damages.

If it should happen that the patron who had made an agreement or had given a promise to attach a line to another vessel fulfills his responsibility, but the line is cut by the pirates and the two vessels are separated, or the line is cut by another enemy vessel or stormy weather, and the patron, in spite of his effort to keep his promise of help, cannot give such aid, neither he personally nor his vessel will be held responsible for damages suffered by the other vessel, because he could not fulfill his promise due to the circumstances stated above.

Further, if a patron of a vessel who had promised to attach a hold line to another vessel has received or shall receive for this service a stipend, and the vessel which paid this stipend shall be lost or damaged, the patron who had received the stipend shall pay all the damages which the vessel from which he had received the stipend had suffered, as well as for the cargo aboard the vessel, to the degree of the damage suffered. An exception will be made in a situation when a [54] patron who had received a stipend or an award had announced at the moment he had received this stipend from the patron who was fearful of sailing out alone, that should there be an incident brought on by fate, neither he personally, nor his vessel, nor the cargo aboard it will be subject to the damages that will have to be paid. It should be understood that an incident brought about by fate occurs when he may be forced to cast off the line due to stormy seas or because of a threat of pirate vessels, privateers or other craft. If, however, a patron who had received a stipend or award had made a reservation to the patron who had entertained such fears that neither he, personally, nor his vessel, nor anything aboard his vessel will be used as a guarantee to pay for the damage which may be suffered by the vessel which had asked for aid; this reservation also applies to the patron of the vessel who paid for such aid or will pay for it, if he makes it at the time the payment is made or after it has been made.

Further, any patron should be sure to be on guard when entering into such agreements, whether or not he receives a stipend for such service, that he will act impartially. Because, should he make such an agreement or give such a promise without the approval and knowledge of the merchants who are aboard the vessel or have their cargo aboard it, the merchants will not be obligated in any way should such an incident take place. On the other hand, should these merchants suffer any damage, loss, or diminution in the value of their cargo due to such an arrangement on the part of the patron who entered into it without their knowledge and approval, the patron will have to pay them full damages, even if the vessel and any other property which he owns has to be sold.

This article was written for reasons given above.

95-Disposing of Cargo Overboard

The patron cannot throw any cargo overboard or order any other person to do so until a merchant aboard his vessel first throws some of it overboard; only then can he order the cargo to be tossed overboard in the amount necessary to prevent danger to the vessel. On such occasion the clerk shall prepare an agreement, as if he were on shore, and the patron must share in the damage resulting from the necessity of dumping such cargo overboard to the extent of half the value of the vessel.

96-Cargo Thrown Overboard

The value of the cargo thrown overboard in stormy weather or due to pursuit by enemy vessels will be assessed proportionally to the [55] value of all the cargo aboard, and the vessel must pay damages to half the value of the vessel.

97-Procedure of Evaluating the Cargo Thrown Overboard

When any cargo is tossed overboard, as has been discussed above, it should be evaluated in the following manner: If it was thrown overboard before the vessel covered half the distance to its destination, it should be valued at the price at the point of departure. If it was disposed of after half the distance was traversed, the cargo tossed overboard as well as the cargo saved should be evaluated according to its value at the port of destination.

98-Procedure for Reimbursement for Cargo Thrown Overboard

If the patron, in agreement with the merchants, loaded their cargo aboard his vessel with the purpose of delivering it at a specified port of destination, and during this voyage due to chance of fate he should encounter bad weather or enemy ships or some other danger which would necessitate tossing overboard a portion of his cargo, he should do the following as soon as his vessel and the rest of the cargo aboard reach the port of destination: Before releasing any of the remaining cargo to the merchants who were to receive it or to whom it belongs, he should retain an amount of the cargo equivalent to the value of the cargo thrown overboard, or even a greater portion, in order that neither he personally nor the merchants to whom the lost cargo belonged would suffer any loss, damage, or liability. This is done because each of them has already suffered serious damages, and also in order that the merchants who had already lost some of their cargo would not be forced to sue the patron of the vessel or the merchants to whom the salvaged cargo belongs.

The value of the cargo thrown overboard should be determined according to the actual value of the cargo lost, and the patron of the vessel will be required to share half the amount of the damage, that is to say, up to the amount which would be half of the value of his vessel. Furthermore, if the patron of the vessel demands that lading charges be paid on the cargo salvaged as well as on the cargo tossed overboard, he must be paid as if all of the cargo had been saved; however, under such conditions the patron will be required to share the damage in the amount that he received for carrying the cargo in the same degree as the cargo salvaged.

What is the reason? Because the patron received payment for the cargo which was thrown overboard as well as for the cargo which was saved. It is, therefore, just that in accepting lading charges for cargo [56] saved and lost, he should be obligated to share in the damages to the whole amount of these lading charges.

Further, if the patron of a vessel demands and receives payment for carrying only that part of the cargo which has been saved, he will not be required to share in the damages to the amount he had received for carrying such cargo, and the reason for this is that he has been damaged enough, because he has lost the amount he would have received for the cargo which was thrown overboard.

To continue: If a patron of the vessel demands payment of the lading charges and is paid the freight fees only for the cargo that was saved, he will not be expected to share in the damages to the amount of the lading fees received because he has been damaged enough, as he has lost the amount he would have received for carrying the cargo which has been thrown overboard.

99-Formalities That Must Be Observed in Relation to Throwing of Cargo Overboard

When a storm overtakes a vessel and its master is convinced that there is a possibility that the vessel may sink unless he disposes of some of the cargo aboard, he should explain this to the merchants and inform them in the presence of the navigator and all persons present on the deck in the following manner: "Sirs, merchants, if we do not lighten the load, we will find ourselves in danger and expose all on board, plus the cargo and other merchandise and possessions, to a total loss. If you, gentlemen merchants, consent that we reduce the load we have aboard, we will be able with the aid of God to save all the people aboard as well as most of the cargo. If, however, we do not throw some of the cargo overboard, we will find ourselves in danger of losing our lives and all our possessions."

If the majority or all of the merchants express approval, it will be possible to proceed to get rid of some of the cargo by throwing it overboard. At least one of the merchants aboard, if it is impossible for all of them to do so, will have to personally start dumping the cargo overboard, and only if one or more merchants start tossing the cargo overboard will the patron be able to do likewise and order others to do the same, until enough cargo has been disposed of and the danger averted.

Under such circumstances the clerk of the vessel will be able to set in writing all agreements as if the vessel were moored. If, for some reason, the clerk could not set this in writing, the sailors can attest to all the agreements made and promises entered into between the patron and the merchants, because the clerk was unable to enter [57] them into the ship's register. This is done in order that all agreements and promises made between the merchants and the master of the vessel are entered into without any deceit or fraud.

If, however, it should happen that there are no merchants aboard the vessel, the patron under such circumstances will act in the name of the merchants, and whatever action he pursues he should do so only after he reaches an understanding with the navigator, shareholders and the members of his crew. After he has reached such an understanding with those mentioned above and proceeds to toss cargo overboard, his action will be as binding as if all the merchants were aboard or as if all the cargo belonged to him personally. In such a circumstance the patron will also have to share in the damages due to the necessity of disposing of the cargo to the amount equal to half the value of the vessel, and the merchants to whom the cargo belongs cannot question his decision for throwing the cargo overboard as long as this was carried out in the manner prescribed above. The damage resulting from this will have to be shared proportionally depending on the quantity and quality of the cargo thrown overboard.

This article was written in order that a patron of a vessel could be able to act in such an emergency when the merchants are not aboard the vessel. If the patron was unable to act in the name of the merchants under such circumstances, the result would frequently be loss of life, vessel, and all the cargo That is why under such circumstances the patron can and must act in the name of the merchants, who are not aboard the vessel It is obviously more sensible to get rid of some of the cargo than to sacrifice human life, the vessel, and all the cargo.

100-Obligation to Declare the Cargo to the Clerk of the Vessel

As soon as the vessel unfurls its sails, the merchants shall make a declaration to the clerk of the vessel of everything they had loaded aboard and which had not been entered into the register. If anything is found aboard which they have not declared, they will be required to pay the highest lading charges permitted for every quintal of merchandise, because they brought aboard this merchandise secretly. If it should happen that they had not declared these goods by the time the vessel had set sail, and later these goods are lost, waterlogged, or thrown overboard, they will not be entitled to any reimbursement, because they had made no declaration of such merchandise.

101-Arrival at Port

A patron of a vessel cannot enter any port without the express permission [58] of the merchants; if he should do this and the merchants suffer any damages through some incident, the vessel will be held accountable for all the damages they suffered. The clerk must verify this matter by making an entry in the ship's register, regardless of whether or not the vessel is moored. However, if the master of the vessel needs something essential in order to continue the journey, he must inform the merchants that he cannot continue the voyage without procuring the equipment, or that he must make repairs, or that the vessel must be tarred or caulked or outfitted with sails. Under such circumstances the merchants must agree to his entry into such a port, provided that the navigator and the sailors certify under oath that they are acquainted with this port. Nevertheless , if there should be a privateer moored in that port and the merchants fear him, the patron cannot enter such a port unless the merchants agree to it. If the merchants refuse to allow him to venture into such port, even if there appears to be no danger there, and one of the merchants announces, "I do not wish to enter this port," he will have to pay all the damages which may result due to this.

102-Concerning the Promises Made by the Merchants to the Patron

Here we will speak of the responsibility to keep promises made by the merchants to the master of a vessel. The merchants will be required to keep all the agreements made with the patron, and which have been entered into the ship's register. To continue, if a merchant took upon himself some special obligation, and made this promise in writing or had it entered in the vessel's register, he will be obligated to fulfill it in every detail.

Therefore, if a merchant made an agreement with the master of a vessel to ship a specified amount of cargo, it makes no difference whether or not he was aboard the vessel when he made this agreement with the patron. If later he cannot provide the amount of the cargo agreed upon or lacks the means to purchase the agreed amount of cargo for shipment, he will be required to pay the lading charges on the amount contracted for, whether or not it is loaded aboard the vessel.

103-When a Merchant Wishes to Unload His Cargo ⁽³⁾

If the majority of the merchants decide to unload their cargo, every [59] merchant can unload his own cargo, without paying any lading fees, and the master of the vessel, who had not been paid the lading charges, cannot demand any.

Further, the patron of a vessel shall wait with his vessel until the date agreed to take aboard their cargo and carry it. This means the cargo and the personal effects of the merchants as had been agreed.

104-Concerning Merchants Who Wish to Unload Part of Their Cargo

When a vessel has set sail and it should happen that the majority of the merchants, or the merchants to whom the greater portion of the cargo belongs, wish to stop at some port to unload the cargo, they are privileged to do this regardless of the distance of this port from the location where the voyage began. But the patron of the vessel under such circumstances can also force the rest of the merchants, that is those whose cargo constitutes the minor portion of the load, who do not wish to unload their cargo at this port, to unload it, and to demand payment of all the lading charges. If the master of the vessel allowed a rebate of shipping charges to the merchants who unload the greater portion of the cargo, he shall be obliged to allow a rebate to the merchants who are shipping the lesser portion of the cargo aboard; thus, all the remaining merchants should be treated in the same manner as the merchants who had shipped the major portion of cargo aboard this vessel. The wages of the crew shall be lowered in proportion to the amount received in lading charges.

105-When a Patron Is Delayed by a Merchant

When the merchant did not pay the lading charges on the cargo he was to ship, and the patron of the vessel waited for the agreed period of time to take this cargo aboard, the merchant shall be required to load this cargo aboard. If he should refuse to do this, he will be required to pay the patron of the vessel the full amount of the shipping charges.

106-In Case of Necessity, a Merchant Should Make a Loan to the Master of the Vessel

In addition, in his relations with the patron of the vessel, the merchant is obligated in the following manner: If a patron declares, while the vessel is moored in some port, that he must buy new sails or other equipment which is essential to the safe operation of the vessel, and the merchant aboard the vessel has the means, he will [60] be forced to make a loan to the master of the vessel in the amount determined by the navigator of the vessel to be sufficient to meet this emergency. For this reason, all shareholders and loan makers aboard the vessel are obliged to assume this responsibility also, in the presence of the merchant mentioned above. If, however, the patron of the vessel, or its shareholders, or the former loan makers find some other person who will be willing to make such a loan, the merchant aboard the vessel will not be required to make the loan.

107-In Case a Need Arises a Merchant Must Loan Money to the Master of a Vessel to Make It Seaworthy

In addition, if the master of the vessel needs money and cannot obtain it in the manner discussed above, and finds himself in an uninhabited location, but must have the money to put the vessel in seaworthy condition, and the merchants mentioned before do not have the money to make him a loan, they will be required to sell part of their cargo in order to buy the equipment necessary to make the vessel seaworthy. ⁽⁴⁾ No shareholder or any person who had made a loan to the patron prior to the departure of the vessel may oppose this, and the merchants who had sold part of their cargo shall be repaid first, provided that the sailors have received their wages. Further, it must be stressed that the patron of the vessel must be absolutely certain that money borrowed will be used to purchase the necessary equipment to make the vessel seaworthy.

108-A Merchant Should Supply the Vessel With Food

In addition, if there should be a lack of provisions aboard the vessel for the crew and other persons, and a merchant has such provisions, he must make them available for a communal use, and the patron of the vessel will divide this food equally among all the persons aboard. The merchant is not allowed to retain more food than the share received by any other person aboard. If the vessel reaches a territory where food may be purchased, the merchant may demand the return of these provisions in the amount which had been requisitioned, and the patron will be required to replace such provisions.

[61] 109-Patron's Responsibility for the Equipment Aboard the Vessel

In addition, if the master of the vessel wishes to drop anchor near the shore, in port or at any other place where there is a chance that it will be lost, he should do this with the knowledge and approval of the merchants. ⁽⁵⁾ If the merchants demand that he drop the anchor, and he refuses to do it, and if the anchor or the anchor chain should be lost, the patron and the crew will have to pay full damages, because they refused to do this.

Further, if the vessel lost its anchor in some bay, gulf, or in some other waters where it had stopped upon the demand of the merchants, the cost of the replacement of the anchor will be assessed equally on all the cargo aboard the vessel, and the owners of the vessel will not be required to share in this expense If, however, the vessel dropped its anchor due to fear of an enemy vessel, the price of replacement will be borne equally by the owners of the cargo and the owners of the vessel in the amount equal to but not more than half of the value of the vessel.

If the master of the vessel abandons a lifeboat with its crew upon the demand of the merchants, the cargo of these merchants must bear the expense of the purchase of a new lifeboat and the expenses of the crew up to the time the crew returns to the place where the vessel is moored. The vessel will not be required to share in the cost of such an incident.

110-Abandonment of a Boat Being Towed

If a vessel towing a boat which has been swamped with water, finds it necessary to tow it in that condition, and if the merchants insist that the tow line be severed and it should be done, and the boat abandoned, the resulting damage will be assessed against all the cargo aboard, but the owners of the vessels will not be required to share in this damage. If, however, the tow line breaks, and is not severed to please the merchants, the latter will not be required to share in the damages.

111-Throwing of Cargo Overboard in the Absence of the Merchants

If, when the master of the vessel cargoed it at some location and remained anchored at that place, or in some other location, and all the merchants without exception are ashore, leaving only the master and the crew aboard the vessel, there should appear armed enemy vessels or a sudden unexpected storm should develop so that the patron cannot take the merchants aboard, and if, due to the above mentioned circumstances the patron was forced to pull in the anchor and leave the merchants on the shore and also , fearing the approaching enemy vessels, judged it necessary to throw some cargo overboard or had thrown the cargo overboard in order that he be able to escape them or to be able to defend his vessel more effectively, or because of the impending storm under such circumstances, tossing of the cargo overboard has the same validity as if all of the merchants were aboard the vessel. In such cases it is necessary that the master of the vessel act with the approval and advice of the crew of the vessel, and that the clerk not neglect to enter into the ship's register all the resolutions which had been made aboard the vessel in the presence of the whole crew.

If the clerk could not make these entries in the ship's register due to the circumstances mentioned, he should do so as soon as the ship is moored and before he disembarks from the vessel. If it should happen that the clerk has been ashore during such a situation, but aboard the vessel there are servants of the merchants, the patron shall assemble the crew and these servants and ask their advice; he shall then repeat or order someone to repeat the decisions they have reached as many times as it will be necessary in order that everyone aboard the vessel shall remember them. This is done so that when the patron meets the merchants who had been left ashore, there would arise no possibility of a misunderstanding, and so that no one from among those who had taken part in these deliberations could claim that he did not hear what had been decided and that no one had consulted him about the actions that had been taken.

If the patron follows the procedure outlined above, everything that he does will have the same validity as if the majority of the merchants were present when these decisions were made. If it should happen that, due to the proximity of enemy vessels or storm, the vessel was steered unto shoals, and the patron acted according to the procedure described above, in concensus with all those enumerated previously, and with their express knowledge and agreement, none of the merchants or any other person can invalidate any agreement or any decision they had reached. Any person who challenges his action will be forced to pay for all the damages and losses, costs, and injuries, which the patron who had this unfortunate incident suffered due to such a challenge.

Everything which has been stated must, however, have taken place without any deceit or fraud. If anyone from among those enumerated above is able to prove, without the shadow of a doubt [63] such deceit or fraud, the guilty party will have to pay to the damaged party and to those who prove such deceit and fraud all the damages they suffered.

Further, investigation of such fraud charges should be made by persons of wide experience, free from all suspicion, and, in particular, by parties who know the profession of sailing and are familiar with the issue which they are called upon to judge. Why is this so? Because it would not be fitting that the testimony of porters or persons of low estate be accepted as evidence in such matters, as they are easily bribed; and also if the captain's version of the situation was accepted based on the testimony of such low persons, he could very easily ruin the merchants, because the testimony given by persons of low birth, who can be bribed, does not and cannot have any value whatsoever in any issue.

112-Apportionment of Salvage Expenses

The merchants shall proportionally pay all the expenses connected with the handling of the cargo except that of cargoing the vessel. If, therefore, it is necessary to weigh anchor because of bad weather or other reasons, in order to find refuge in a port or straits in some other location where the cargo or the vessel can be saved, the cargo will be subject to assessment in proportion to its value and quantity. If the merchants aboard the vessel did not have identical quality of cargo -- if for instance there is a party of five merchants and another party of two or three merchants, and these two merchants have the same or even a larger cargo than the group of five merchants -- the amount of damages that the party of two merchants agreed to pay as part of the salvage costs will also have to be paid by the merchants having the lesser amount of the cargo aboard.

Further, all these transactions must be carried out honestly without deceit and without forcing of one's personal opinion, and the merchants must state under oath that they will proceed honestly in this matter. This article is intended above all to guarantee to the vessel any damages that it may suffer in the event that such guarantees were made to the vessel. The vessel, however, enjoys this privilege, that when the merchants promise in a given situation to pay the salvage costs, they will fulfill this responsibility, whether or not such a promise has been executed in writing under the conditions that the clerk of the vessel was present in person and personally heard these promises made. The clerk should enter these matters into the ship's register without delay as soon as the vessel is moored, since the vessel and he were on the high seas when these [64] agreements were concluded.

113-Who Is Classified As a Passenger

Now we will discuss the responsibilities of the patron of a vessel toward the passengers aboard his vessel and the obligations of the passengers toward the patron of a vessel. The same situation will obtain whether the reference is made to a large vessel or a barque. A passenger is a person who pays the patron for his own transportation as well as for the transportation of his effects which are not part of the cargo. Therefore, every person whose cargo amounts to less than five quintals shall be required to pay passage fee for his own person; and no one can be properly called a merchant who is paying less than twenty besants in lading charges. The master of the vessel is not obligated to carry the chest, nor a servant, nor anything else if the passenger is shipping less than ten quintals of cargo unless they had reached another agreement. If such a passenger loaded anything aboard the vessel without the knowledge of the master of the vessel or the clerk or some person whom the patron and the clerk appointed to represent them to oversee the cargoing and lading charges, and if the passenger has not shown his cargo to one of these persons, the patron of the vessel may demand that such a passenger pay the highest lading fees which are paid for any cargo aboard the vessel, in proportion to the weight of his cargo and other possessions. Similarly, any person who comes aboard the vessel without the approval of the master or clerk of such a vessel may be charged any amount the patron decides for his accommodations aboard the vessel.

114-Cargo Loaded Aboard the Vessel Without the Knowledge of Its Master or the Clerk

If there is loaded aboard the vessel so much cargo as to endanger it and for this reason the patron does not want to carry all of it, the clerk shall order that the excess cargo be unloaded on the shore, and the master of the vessel shall not be held responsible for payment of any compensation for the damage that may result to the cargo unloaded, unless it had already been entered on the ship's register. It should be understood that when the vessel has unfurled its sails and has sailed out of the port, merchants, sailors, passengers, and all others aboard the vessel who had brought aboard any effects or merchandise shall come to the clerk and declare everything that they had brought aboard. If any of them fail to do this, neither the patron nor the clerk will be responsible for any damage to any such cargo or effects.

[65] 115-Undeclared Personal Possessions and Effects

If, due to some misfortune or other circumstance, it becomes necessary to dump some cargo overboard, and if in the presence of witnesses the effects of a merchant, passenger, sailor, or other person aboard were thrown overboard, but this property had not been entered into the ship's register or was not declared to the patron, clerk, or their representative who had been empowered to oversee the cargoing of the vessel, the patron of the vessel will not be required to pay any damages if such effects are lost, damaged, or waterlogged, even if there were witnesses who had observed that such effects had been loaded aboard. If, however, undeclared goods are found upon unloading the vessel, the patron may arbitrarily determine the amount of lading charges due on such goods, and the merchant will be forced to pay these charges without any resistance.

However, if the clerk had entered such goods into the register before or after the vessel had sailed, the patron will be required to pay damages if such goods are lost.

116-Responsibility of a Patron Toward Passengers

Further, the master of a vessel shall provide proper accommodations and water for the passengers and carry them to the destination agreed upon. If a patron has received a deposit on the fare the passenger will pay, he must carry out the promise he had made to the passenger; on the third day after the deposit was paid the passenger should approach the patron to find out the sailing date. If the patron should mislead the passenger by giving him a later date and due to this the passenger fails to be aboard when the vessel sails, the master of the vessel shall return to the passenger the full fare which would have been paid plus all the losses suffered by the passenger due to the patron's negligence. If, however, the passenger has removed himself from the vicinity of the vessel without finding out the actual date of sailing and fails to return at the time the vessel unfurls its sails, even if he had paid the full fare or had given the master of the vessel one thousands marks, the patron of the vessel is not required to return anything to him. ⁽⁶⁾

[66] 117-Passenger Accommodations, Death of Passenger Aboard the Vessel

The master of the vessel or his representative, namely, the navigator, will assign the passenger his accommodations, and the passenger must accept the accommodations provided for him. If the passenger dies, the navigator may assign his accommodations to any person he chooses; the deceased person's best suit of clothes rightfully belongs to the navigator, and any money which the deceased had on his person will be taken by the master of the vessel, if the deceased did not have a relative aboard the vessel the master will keep it safely until they reach a port where the heirs can demand that he surrender it to them at any time within a three-year period. If after three years have elapsed and no one claims this estate, the money will be used, with the approval of the local bishop, for the repose of the soul of the deceased.

In order that a proper accounting of the estate be made with the bishop or a local court, the clerk of the vessel will prepare a list of the money and all other possessions of the deceased in triplicate, retaining one copy for himself, give one copy to the merchants, and give the third copy to the master of the vessel. After returning to the country of origin of the deceased, the clerk shall show a copy of the inventory of the possessions of the deceased party to the local bishop or his secretary, or to the local pastor, who shall transcribe the inventory into the parish register.

If the patron of the vessel is not considered reliable enough to hold such money because he is a poor manager or a wasteful person, he must post a bond.

If he is unable to post such a bond, he shall deposit the money in a safe depository in order that if anyone should claim this money within the three-year period, he will be able to get it. If the master of the vessel should die, the money should be placed in a safe and secure place.

118-Right of the Patron to the Effects of a Person Who Died Aboard His Vessel

In the situation described above, the master of the vessel shall receive as part of his compensation or wages the bed and one suit of clothing of the deceased person, that is, after the navigator has received one suit of clothing. If the person who died aboard the vessel did not leave many possessions, the master of the vessel should not even receive that much. If the property of the deceased party amounts to less than one hundred besant, the patron should take only the [67] clothing and turn all other effects of the deceased into cash by selling it.

119-Exceptions to the Preceding Article

If, however, a person who died aboard the vessel had undertaken the voyage as an ordinary passenger, ⁽⁷⁾ neither the master of the vessel, nor the navigator, nor any other person aboard will receive anything from the effects left by the deceased. Nevertheless, if this passenger had undertaken a voyage beyond the sea or some other long distance, the patron as well as the navigator should receive what has been mentioned above. There are often many persons who undertake a long journey with a small amount of merchandise, or who are sailing to settle in some distant country and are referred to as passengers. If any of such people die aboard the vessel, the patron should not receive anything from among their effects. Under such circumstances, if there is no consul aboard the vessel, ⁽⁸⁾ the patron is required to store all the possessions of the deceased, if the latter did not leave a last will, did not leave an executor of his will, and did not leave a beneficiary. If there are no relatives of the deceased aboard the vessel, the patron should store all the possessions and, keep them until he is able to return them to the deceased's relatives, his wife, or his sons, or to those to whom the property should be returned.

The clerk should make a detailed inventory of all these belongings, retain one copy for himself, give a copy to the patron, and proceed in the manner which has been established and discussed above.

120-Share of the Jolly-Boatman and the Guard of the Vessel in the Effects of a Deceased Passenger

The jolly-boatman shall receive the boots, knife, and the belt of the deceased passenger, while the guard of the vessel, his trousers but both of them must see to the burial of the dead passenger, either some place on land or in the sea.

[68] 121-Food Left Aboard the Vessel by the Deceased Passenger

Further, any provisions left by a passenger or any other person dying aboard the vessel will be taken over by the patron of the vessel.

This article pertains to passengers or other persons traveling from one place to another, as has been stated before.

122-Failure of a Passenger to Sail Aboard the Vessel After Making Payment for His Accommodations and His Cargo

If any of the previously mentioned persons has paid the patron for his fare but wishes to remain ashore, the master of the vessel shall not be required to refund the fare.

Further, if a passenger, or some other person, or a merchant has made an agreement with the master of the vessel regarding a shipment of cargo, and wishes to sell this cargo while ashore at the location where the contract was made or at some other place, and the amount he would receive for this cargo is insufficient to pay the lading fees agreed upon, it should be designated for payment of these fees even if it is sufficient to pay for these shipping charges. Should the merchant have other possessions more valuable than his cargo, it cannot be assessed to pay for the lading fees due on the cargo of lesser value, and in that manner pay the patron the fees due.

This article was written to prevent the merchants from misleading each other and also, that they do not take out loans on cargo which is of little value, but on cargoes of substantial value.

123-Obligations of a Passenger

The following are the obligations of a passenger and every other person toward the patron aboard the vessel: He shall be required to help, to protect, and to watch over the vessel, and not to disembark until the journey is completed, unless the patron agrees to some other arrangement.

This article was written because many patrons often take mechanics and soldiers aboard as passengers and charge them a lower fare, which they would not do if they knew that these persons would not participate in the defense of the vessel, and many merchants travel aboard such vessels because they feel safe with soldiers aboard.

In addition, all the passengers and others traveling aboard are required to take part in the deliberations and to conduct themselves according to the customs and traditions which have been established, [69] and which must be followed by all aboard the vessel. ⁽⁹⁾

124-Patron's Obligations to His Sailors

Let us assume momentarily that a patron engages a sailor for service aboard his vessel. Whether such sailor is good or evil, knowledgeable or ignorant of his trade, he must pay him the agreed wages, with this reservation, that if this sailor was engaged as a carpenter, a shipwright, or a helmsman, and he is not capable of fulfilling the task he was hired for, and the patron believing that he was able to perform the task had not hired another in his place, the patron of the vessel shall pay only as much as the helmsman and the clerk decide under oath that he shall receive.

125-Dismissal of a Member of the Crew

Let it be known that a patron of a vessel may discharge a sailor from his service before the journey is completed for the three following reasons only: Firstly, for stealing; secondly, for fighting; thirdly, for failure to carry out an order given by the helmsman. The helmsman, however, cannot order a sailor to do something which he has no right to order; and the sailor cannot be discharged for the first violation but only after the fifth.

If, for the sixth time, he fails to carry out an order of the helmsman, the patron, or some other person acting in his place, he should be discharged from service. It is, however, mandatory that the person who gave an order to a sailor is capable of carrying out such a command himself.

To continue: There is still another reason why a sailor should be discharged and that is, if he violates his oath, because if he was allowed to do this the merchants could not have any confidence in him.

126-A Sailor Cannot Be Discharged in Order That Another Person Could Be Hired at a Lower Wage

Further, if the sailor contracted with the master of the vessel to serve aboard the vessel for a specified wage, and the patron should find another sailor willing to serve for lower wages, he will not be [70] able to discharge the former if the agreement was sealed with a handshake. Such an agreement must be fulfilled as if it has been entered in writing in the ship's register.

127-A Master of a Vessel Cannot Discharge a Sailor in Order to Hire a Relative in His Stead

Further, if a sailor has contracted with the master of a vessel to serve as a member of his crew, the patron cannot hire a relative or any other person in his stead, if the enlistment was accompanied by a handshake or entered into the register, and is binding whether or not the sailor was aboard the vessel when the contract was entered into. If the master wishes to discharge him he will have to pay his wages, as if the sailor had served during the entire trip. Moreover, if the sailor fell ill after working aboard the vessel for three days, the patron will be required to pay him one-half of his wages, even if the sailor had to be left behind on shore. Should the vessel be moored while in another country and the crew should decide that the sailor is too ill to undertake a voyage, the master shall pay him one-half of the wages due him for the trip; should he not have the means to pay him, he shall borrow the necessary amount because a sailor must receive his wages. Should the master of the vessel die, the executor of his estate shall fulfill this obligation.

128-Death of a Sailor Aboard the Vessel

Should a sailor become ill and die aboard the vessel, his effects, as well as his full pay, will be given to a relative if there is one aboard the vessel, who, in turn, will deliver these possessions to the deceased sailor's children or to his wife if she was living with him while he was alive. This will be done whether or not the deceased had made such stipulation before he died. If his wife, however, has been unfaithful to him, or had not been living with him at the time he left the country, or if she fled from their domicile after he left on the journey, the master of the vessel with the agreement of the clerk and the approval of the local court shall surrender these effects to the nearest relative of the deceased.

129-Death of a Sailor Before Sailing and After the Vessel Sails

If a sailor dies after his enlistment for a specified voyage, and before the vessel sailed, by the will of God, one-fourth of his wages due will be paid and delivered to his beneficiaries. If this sailor had been paid his full wages before he died, all this money belongs and must be [71] given to his beneficiaries, and the master of the vessel cannot challenge the validity of such a payment or demand any refund.

1. A handshake to bind an agreement was considered as valid as a written instrument if witnessed by others.

2. Mals Lenys, actually would include units of official navy of unfriendly nation as well as privateers, pirates, and even private vessels owned by an unfriendly merchant or patron.

3. This actually refers to unloading of cargo before the voyage begins, due to fear of danger to the vessel and the cargo. Further explanation is given in Article 130.

4. The manuscript evidently refers to a location where no one is able or willing to make such a loan and not to an uninhabited territory.

5. Necessity for dropping of anchor was mentioned in Art. 101.

6. A silver mark; its value differed according to time and country. The Venetian mark weighed 233.856 grams, Spanish mark 230.348 grams, the Portuguese mark 229.500 grams.

7. This is to distinguish between an ordinary passenger and a merchant who is accompanying his cargo and is not considered a passenger in the pure sense of the word.

8. Reference is made to a consul who would be aboard a naval unit and not an ordinary cargo vessel. The position of a consul aboard vessels is discussed in more detail in Articles 327 and 333.

9. In case of danger to ship and cargo from stormy seas or enemy vessels.