Consulate of the Sea and Related Documents
Stanley S. Jados
Part 2G: The Beneficial Customs of the Sea
[178] 265-Engaging a Vessel Without Agreeing to the Date on Which It Will Be Cargoed
If a merchant or several merchants engage a vessel, and had made an agreement in writing or in the presence of witnesses, but had not specified the date the vessel would be cargoed and dispatched on its way, and then keep on delaying the day of sailing that the patron of the vessel had taken for granted would have been soon, the merchants shall not be liable for the damages claimed by the patron unless he can prove that this delay had been caused by their negligence. Therefore, every patron should be most careful, when making agreements to take on cargo, that he suffer no damage.
Further, if these merchants, having engaged the vessel as had been stated above, did not cargo and dispatch it in the shortest possible time, and the vessel had to wait because of their indifference, and the patron of the vessel shall be able to show and prove that due to their neglect he had suffered some damage, the merchants shall be liable for such damage because it occurred due to their negligence.
On the other hand, regardless of whether the vessel engaged in this manner was to pick up the cargo at the place where the agreement had been made or if it had to sail to pick up such cargo at another location, merchants who can prove that their inability to deliver such cargo as had been agreed, either at the place where the agreement was concluded or any other place, was not by their fault or negligence shall not be held liable to the patron even in a smallest degree for their inability to provide him such cargo, because the situation developed without any fault of theirs.
However, if these merchants had been able to obtain lower lading charges for the shipment of their cargo than they had agreed on with the patron of the first vessel, and advantageously engaged instead another vessel to carry their cargo, leaving the first vessel engaged without a cargo, they shall be required to pay for all the damages and expenses suffered by the patron of the vessel that they had originally engaged, and shall also be required to furnish him the cargo they had agreed upon. [179] Should they refuse to do so, they shall be required to pay the patron of the first vessel they engaged the full amount of the lading fees they had agreed to pay him, because otherwise he would lose, by their fault and the fact that they found another vessel that would carry their cargo at a cheaper rate, all the income he was expected to make, for his damage would not have occurred otherwise. It is, therefore, justifiable that the party acting or attempting to act in a manner that would subject another to a damage, which he does not deserve, should bear the consequences of such an action himself.
For the reasons explained above, a patron who would, after an agreement with one group of merchants to carry their cargo, enter into an agreement with another group of merchants to do likewise, because the latter offered him a higher price than the merchants with whom he had concluded the original agreement, shall be required to repay them for the damages, costs, and losses incurred by his fault, because they had suffered as result of his neglect. In addition, he shall be required to carry the cargo he had originally contracted for, even if it became necessary to sell the vessel in order to accomplish this, for it is only proper that patrons of vessels shall be obligated toward the merchants who engage the ir vessels in the same degree as the merchants are obligated toward the patrons of vessels they engaged.
This article is written for the reasons given above.
266-When a Vessel Is Prevented from Sailing by the Local Authorities
If a merchant or several merchants had engaged a vessel in a given locality, and regardless of the fact that this vessel is to take cargo aboard in the locality where the agreement was made or is to proceed to another locality to pick up the cargo, if during the time it is anchored at the spot where the agreement was signed, the local civil authorities impose some restrictions against it leaving such a locality (let us assume for the moment that the vessel was to take on cargo at the place where the agreement was concluded), and the patron of such a vessel approaches the merchants who had engaged the vessel to annul the contract that had been concluded in writing, that they free him from the responsibility of fulfilling the obligation to carry their cargo, in order that he might be able to sail to another locality to look for cargo that other merchants may want him to carry, and if the merchants who had engaged his vessel refuse to annul the contract and free him from the responsibility of the obligation that he had taken upon himself to carry their cargo, but rather inform him that he should not trouble about this matter, that they will take care of this [180] legal restriction, and that they are positive they will be able to furnish him the cargo agreed upon, and if they are able to settle everything and furnish the promised cargo, they shall nevertheless be obligated to reimburse the patron for all the expenses he incurred from the date he had requested that they annul the contract and free him from his obligations. They are not, however, compelled to do this because of any negligence on their part, but rather because of obstructions invoked by the authorities, for they had provided him with the cargo as had been promised.
Further, if on the other hand, the merchants could not furnish him the cargo promised or any other cargo, they shall be required to reimburse him for all his expenses and pay all the damages and costs. The above should be understood in the following manner: that the amount to be paid the patron for his damages and expenses shall be arbitrated by two Elders well versed in the art of sailing, because the merchants wanted to provide the patron with the cargo as they had agreed, but could not do this due to no fault of their own. Regardless of the type of an agreement the patron had concluded with the merchants, the crew shall abide by it.
Further, if the vessel was to proceed to pick up the cargo at another location, and before the vessel could sail from the place where the agreement was concluded, some restrictions were imposed against the vessel, if the merchants informed the patron of the vessel that they engaged that fear of these restrictions should not prevent him from proceeding to pick up their cargo, because they are convinced and have no doubt or fear that these imposed restrictions will either affect or delay their cargo or them personally, and if the patron assured by these statements made by the merchants should set sail for the locality where according to the agreement with the merchants he was to pick up the cargo, and the merchants shall not be able to supply him with the cargo promised, they shall be required to reimburse the patron for all the damages and expenses he suffered due to their negligence and the restrictions imposed by the authorities, as well as pay him the full lading fees he would have been paid had he carried their cargo, because it was their fault that he did not carry their cargo.
This matter cannot be submitted to arbitration by the Elders without the consent of the patron of the vessel, for this reason: because in conformity with what has been stated in one of the previous articles, any vessel that had already unfurled its sails, even if it was detained from sailing, shall be paid the full lading charges without an imposition. (1) If the patron agreed to make some concessions in this matter, [181] the crew shall abide by them.
Further, if during the time that the merchants were in the process of engaging a vessel, there were in force certain restrictions, and the patron of the vessel informed and instructed the merchants that they should not enter into any agreements in relation to the engagement of his vessel, if these merchants tell him that he should enter into an agreement with them, that he should not refrain from such action because of any restrictions that may exist, and that they shall protect him from any damages, if the patron relying on these assertions concludes such an agreement, the merchants under such circumstances shall reimburse him for all the damage, expenses, and losses that occurred as result of their neglect.
A patron of a vessel is obligated to the merchants in similar manner and degree, and even under other circumstances.
This article has been written for the reasons mentioned above.
267- A Sailor Should Not Leave the Vessel Immediately upon His Discharge from Service
If a patron of a vessel discharged a sailor for any reason whatsoever, he should not leave the vessel merely because the patron discharged him but wait until such a time as his rations of bread and other provisions are cut off.
If the sailor left the vessel merely on an oral statement made by the patron and before his rations were cut off, the patron shall be freed from all his obligations toward the sailor, regardless of the kind of claims the sailor may make.
Further, if a patron discharged a sailor, and by this we mean that he cut off or ordered that his rations be cut off before the voyage was completed and without well-founded reasons, he shall pay such sailor his full wages in the amount promised him at the time of the enlistment. If the sailor had enlisted with the stipulation that his wages would be determined at a later date, the patron of the vessel shall pay him the amount that shall be determined by the clerk and the navigator of the vessel under oath, and the amount shall be identical with the amount he would have received had he remained in service of the vessel for the duration of the voyage.
In addition, if the patron discharged a sailor in a foreign country and the latter did not wish to remain there, the patron shall be required to make arrangements for the sailor to return to the place where he had been hired, aboard some other vessel, unless he makes a different agreement with the sailor, providing that such a sailor is willing to make such an agreement.
Further, if a patron discharged a sailor in the manner stated above [182] or for reasons that had been explained and discussed in one of the previous articles, he shall not be obliged to pay him his wages nor to provide for his passage and maintenance aboard another vessel in order that he could return to the locality from which he had originally sailed. (2)
For the reasons mentioned above, every patron should be careful when he is discharging a sailor, to do this only upon well-founded principles, otherwise this may turn to his disadvantage; the sailors should also be careful when they accept dismissal from service, how they go about this matter, in order to avoid charges being brought against them and to avoid suffering any losses.
For these reasons this article has been written.
268-Desertion (3)
If a sailor deserts his vessel wherever the vessel may be after receiving his wages and before the term of service he enlisted for is completed, that is, before the vessel shall have completed the voyage for which he had enlisted, even if he had completed part of his enlistment, he shall be required to repay the patron the amount he had received in wages without any opposition; he shall not be paid anything for the period he had served aboard the vessel, because, as had been stated above, he had deserted. Otherwise, wherever he shall be apprehended he shall be jailed and shall remain in jail until he has repaid the patron the amount he had received in wages and shall reimburse the patron for all the damages and losses borne by the patron, and the patron's deposition in this matter shall be given full credence without the need on his part of presentation of witnesses to this affair.
This article was written for the reasons listed above.
269-Cargoing a Vessel with Unmeasured Load of Grain
If the merchants had engaged a vessel and are cargoing it with a load of grain, and neither the patron nor his representative have been able to ascertain the exact amount being loaded aboard, but had accepted the measurement given by the merchants or some other person acting in their stead, if later the patron would wish to remeasure the amount of the grain or order some other person to do this before the cargo is unloaded at its place of destination, he shall be able to do this, and none of the merchants can oppose this or take any steps to prevent [183] this being done or make any accusations against the patron. If the patron had remeasured or ordered that the grain be remeasured and was able to ascertain that there was more grain aboard than the amount that had been given to him by the merchants or their representative, he shall be paid the full amount of the lading fees for the amount of grain given by the merchants or their representative as well as for the amount he found above the figure given him, regardless of whether the additional amount of the grain aboard the vessel was due to a mistake in measurement or had been given in an attempt to cheat the patron of the actual amount in the lading fees that were due to him, or even if the increase in the amount of the cargo was due to the swelling of the grain. (4)
In assessing the additional amount of lading charges, the patron should apportion it proportionally among the merchants, depending on the amount of grain each merchant had loaded aboard the vessel, each paying the portion due from him. Each merchant shall be required to pay the patron the lading charges not only on the amount of grain he had specified but also on the additional amount found aboard the vessel, because it is only proper that if the merchants make additional profit, the patron should not incur a loss. In addition, there is still another reason, namely, that the patron or anyone appointed as his representative had not accepted the quantity of grain as cargo according to the figures furnished by the merchants.
If the patron or his representative had measured the grain, or had accepted the figure submitted by the merchants as to the quantity of their cargo, and after arrival at the place of destination, the amount of the shipment would be in excess of the amount given by the merchants, the latter shall not be required to pay the cargo charges on the additional amount of grain found aboard the vessel because the patron had not been willing to accept the figures submitted by the merchants.
If God in His charity aids the merchants in increasing their cargo, they shall benefit by this in the same manner that the patron would have benefited had he trusted the merchants. It is therefore proper that the increase, which God made possible, should accrue to them, because the patron of the vessel refused to believe what they told him.
Further, if the patron had ordered that the grain aboard be remeasured or if he had accepted the cargo without having it measured, and later the merchants prove that there are shortages in their cargo, [184] the patron shall be responsible to pay for such shortages. This proposition should be understood as follows: that the type of grain being shipped is taken into consideration, for there are grains in existence that never have the same measurement at the time of unloading as they had at the time they. were loaded aboard the vessel.
Further, if the patron or his representative was present at the time the grain was measured, but neither he nor anyone he would designate ordered that the grain be remeasured, and did not accept the figures on the amount of the grain from the merchants, but just believed what the merchants had told him concerning the amount they were shipping, he shall be paid additional lading fees for any amount of the grain in excess of the amount declared by the merchants. In addition, if it could be proved that there were shortages after unloading the grain, the patron shall not be held accountable, because neither he himself nor anyone acting in his stead had measured or ordered the grain measured, and did not officially accept the amount declared by the merchants.
This article was written for the reasons given above.
270-Payment of Lading Charges
If a master of a vessel had reached an agreement with a merchant or several merchants to carry their cargo, had arrived at the location where he was to discharge this cargo, but there had been no date or period of time set as to when this was to take place and the merchants were to pay the lading fees, the patron may refuse to unload any of the cargo and retain it all aboard the vessel until the merchants guarantee him that the amount of lading fees set in the agreement shall be paid him on a specified date.
Further, if the patron made an agreement with the merchants that he would discharge the cargo and that they would pay him the shipping charges due on a certain day or within a certain period of time, he cannot and should not attempt to prevent the unloading of the cargo, unless he fears that the above mentioned merchants are deceitful brigands and will do everything to bring about the loss of his lading fees. If the merchants would give the patron sufficient security that will guarantee his lading fees, the patron should allow them to unload the ir cargo.
If it should happen that these merchants approach the patron and offer him part of the cargo in lieu of the lading charges, at the price they would be able to sell such cargo or at the value it has at the place where it is to be unloaded, and that they shall unload their cargo leaving enough of it to pay for his shipping charges, the patron may, if he wishes, accept such an offer, however, he cannot be forced by the [185] merchants to accept such a proposition if he is unwilling to do so. If the patron shall agree to such a proposal freely, and he is allowed to do this, and he shall profit by such an arrangement, all the profit shall belong to him. Should he, however, lose money by such an arrangement, he shall bear the loss alone, as none of the shareholders in such a situation shall be liable for any agreement of this kind. The patron shall be required to pay each of the shareholders his proportionate share from the total amount he had received for carrying such cargo.
Further, if the merchants left all their cargo to the patron in lieu of the lading charges due him, he shall be forced to accept this and cannot make any other demands upon them. If the patron, as had been stated above, was forced to accept the above cargo, none of the shareholders shall reproach him and each of them will be forced to share in any losses as well as in profits, if God enables them to make a profit.
In addition, if the shareholders had agreed with the patron that regardless of where he sails or from whence he returns, he shall be authorized to invest their money that he had received for the lading fees, and if this agreement had been made by the majority or all of the shareholders, and the money invested by the patron shows profit or results in a loss, each of the shareholders shall share in the losses in the same manner as he would have shared in the profits, if God had allowed profit to be made. In such circumstances the shareholders shall not reproach the patron, because he has acted in conformity with the instruction of all or most of them.
In addition, if the patron invested the money he had left over from the lading charges several times without the permission and authorization of these merchants, they shall share in any profit he had made in these investments, but if they had instructed and ordered him not to invest the money he had left over from the lading fees, they will be glad to share in any profit, which God allowed them, but if there should be any losses, the patron alone shall bear them. If the shareholders had instructed and ordered what had been stated above, and in spite of this the patron had invested the money he had left over from the lading fees, he shall pay the shareholders the proportionate amount due each of them out of the profit God had allowed him to earn. Should he suffer losses, he shall assume them alone.
If it should happen that the patron while making several voyages had invested the money he had received in lading fees, and the shareholders had taken their share from the profit God had allowed him to earn, but had given the patron no instructions or orders regarding such investments, which had been discussed above, they shall share in the losses as they had shared in the profits when God made that possible, [186] until such time when they had given proper instructions to the patron regarding these matters.
This article was written for the reasons given above.
271-Cargoing a Vessel during a Storm
If a patron had been contracted to cargo a vessel in a specified location, and his vessel is ready to take on the cargo, and the weather changes so quickly that a storm can be expected momentarily, and due to this the patron would incur some expense, such as rental of additional lines to moor the vessel more securely, the merchants who had leased the vessel shall not be liable for such an expense, because they had not actually loaded any cargo aboard, unless the patron had reached an agreement with them at the time they were arranging for the shipment of their cargo that they shall share in all the expenses incurred by the vessel due to some unfortunate incident.
If it should happen that the patron partially cargoed the vessel with the goods that the vessel was to pick up, part of the cargo together with the owners of the vessel shall proportionally pay for the expenses suffered by the vessel due to some misfortune, unless there had been an agreement concluded with the majority or all of the merchants that in case of such a misfortune the cargo remaining on shore shall share with the cargo aboard the vessel in an assessment to pay for such expenditures. If the vessel was completely cargoed and then the misfortune occurred, such expenses shall be covered proportionally by all the cargo aboard as well as the vessel.
The above provisions shall be understood in this manner: that the vessel was properly and sufficiently equipped and that the equipment aboard was of good quality and in proper quantity. If the equipment aboard the vessel was insufficient even for a smaller vessel, and the misfortune mentioned above overtook the vessel, the merchants and their cargo cannot be held liable for the expenses that the patron of the vessel shall bear because of such a misfortune; in fact the patron of the vessel shall be required to pay the merchants damages for all their losses that happened due to the lack of proper equipment aboard the vessel.
Nevertheless, it should be remembered that no credence shall be given to the claims made by the merchants merely on their depositions. The matter shall be entrusted to two Elders of the Sea Guild who will determine whether the equipment aboard was sufficient for the vessel of that size, and whatever they decide shall be carried out, for the simple reason that at times, and often most frequently, when an unfortunate misfortune overcomes a vessel, after the claims of the merchants were accepted, it was discovered that they always claimed [187] that they sustained damage due to insufficient equipment aboard it; therefore, if such claims were not properly examined and arbitrated by the Elders, the patrons of vessels would always suffer damages.
This article was written for the reasons given above.
272-Concerning Carpenters and Shipwrights
In one of the earlier articles it was explained and shown what are the responsibilities of carpenters and shipwrights toward the patron who had entrusted them with the performance of a certain task or work for which they were hired, as well as of the responsibility of the patron toward these master mechanics. It was not, however, made clear the degree of obligation of these craftsmen, if after reaching an agreement to perform this work, they should refuse to carry out the provisions of such an agreement. (5)
For these reasons, our ancestors who first circumnavigated the earth enacted these amendments in order to prevent the possibility of disputes that could arise between the masters of vessels and these craftsmen. They, therefore, decreed that every carpenter or shipwright who had contracted for work with a master of a vessel is required to complete such work, whether he had agreed on the price or not, because he had assumed the responsibility.
If any such tradesman refuses to fulfill this responsibility, he shall be required to pay for all the losses and damages suffered by the patron for whom he had promised to perform such work, provided that the patron can prove such damages. There is only one exception to this rule, namely, if the latter tradesmen were unable to fulfill their obligations due to some obstacles placed in their path by God or the local authorities.
For the same reason, a patron who had promised employment to one or several of such tradesmen and failed to live up to his promise shall pay them the wages that had been agreed upon between them If it should happen that they did not agree on any specific ampunt of remuneration, the patron who hired them shall pay them the same amount paid other tradesmen for the same type of work, taking into account their skill and efficiency.
In view of this, a master of a vessel who had broken the contract with these tradesmen shall be required to pay all the losses and damages they incurred or that they will bear and that they can show and prove, taking into consideration, however, the size of the job that the [188] patron intended to give them. There is only one exception to this rule, namely, if the patron was prevented from carrying out the agreement by the will of God or the local authorities.
This article was written for the reasons given above.
273-Rights and Obligations of Servants
If a patron hired a servant for a specified period of time, the servant shall fulfill all his obligations that he had promised the patron to fulfill. It is only proper that similarly as the servant shall be required to fulfill all his obligations toward the patron, the latter must also fulfill all his obligations toward his servant. (6)
If such a servant should die before the expiration of his term of service, the patron shall be required to pay the relatives of the deceased his entire wages for the full period of his service, without any opposition.
If it should happen that the patron of the vessel shall die, his former servant shall continue in the service of his relatives and beneficiaries for the whole period that he was obliged to serve the patron on the day the agreement was made, and he must do this without any opposition. The patron's relatives and beneficiaries are obligated to fulfill all the terms of the agreement entered into by the patron while he was still alive and that he had promised the servant he would carry out.
Further, the following shall be understood in this manner: that this servant shall be required to serve the relatives and beneficiaries of the patron only if the vessel will continue to be under the control and disposition of the relatives and beneficiaries of the deceased patron. If these relatives and beneficiaries of the patron sell the vessel before the expiration of the time for which the servant had agreed to serve for the deceased, the servant shall be free from the moment of the sale of the vessel, while the aforementioned relatives and beneficiaries shall be required to pay him for the time he served them as well as the time he served the deceased, and this shall be done without any dispute.
If it should happen that these relatives and beneficiaries were without means to pay the servant, he shall be paid from the proceeds of the sale of the vessel. If, however, these relatives and beneficiaries refused to pay from the amount they had received from the sale of the vessel, the servant can and shall pursue his claim upon the vessel legally, because it is proper that if a person devoted his time to [189] some pursuit he should be paid from such pursuit. Let, therefore, the party who is buying such a vessel be most careful that when he is acquiring it he would not also become subject to any losses or damages. (7)
This article was written for the reasons listed above.
274-Loading Aboard a Cargo of Empty Casks and Barrels
If the master of a vessel is to sail for the Barbary Coast or for Spain or into any other waters, and if the merchants load a cargo of assembled casks or barrels in order to ship them to a designated destination without having reached an agreement with the patron as to the amount due him for carrying this cargo, the patron of the vessel shall be free to decide on the amount due him when he has reached the port of destination or he may keep half of the cargo in lieu of his lading fees, because no agreement had been made Concerning this matter.
If, however, the patron had reached an agreement concerning the lading fees on such a cargo of barrels, he shall be bound to carry out the terms of the agreement.
Further, if this shipment did not consist of assembled barrels but rather of barrel staves and parts, the patron of the vessel shall not receive half of the cargo in lieu of the lading fees. If there had been no agreement concluded relating to the shipping charges he would have received, he can only demand payment of the customary lading fees. Why should he not be able to retain half of the unassembled barrels when he is able to take half of the cargo of assembled barrels in lieu of the lading fees due him? Because if he had accepted a cargo of assembled barrels, he would have been unable to take any additional cargo aboard his vessel at the location where the barrels were loaded aboard his vessel and thus would have lost an opportunity to earn additional money for his vessel, because a load of assembled barrels would have made it impossible for him to have room for any additional cargo. There is another reason for this, namely, if he had ordered the barrels disassembled, to assemble them again would have probably been more expensive than the amount he would have been able to earn from taking additional cargo aboard his vessel; therefore, it is proper that he receive half of the cargo of assembled barrels but not half of the unassembled barrels. There is still another reason for [190] this: if he would happen to carry a cargo of unassembled barrels, he might have been able to pick up additional cargo in some places along his course; thus he would have stored the unassembled barrels on the bottom of his vessel and the other cargo on top of that. However, if the staves had been tied in bundles, he would have to bear the cost of retying them in bundles before delivering them.
For the reasons explained above, the patron should not have the right to retain half of the cargo if it consists of staves, as he does when he carries a cargo of assembled barrels.
275-Merchandise Can Be Accepted or Refused As Payment for Lading Charges
If a vessel was cargoed to proceed beyond the seas to Alexandria, Armenia, or some other distant shore, the merchants are required to pay the full lading fees as they had agreed to do with the master of the vessel. Should they refuse to do this, the patron may retain sufficient amount of the cargo in lieu of such fees, and even a bit more, and the clerk is also required to follow this course when acting as a representative of the patron, as had been discussed in one of the preceding articles. (8)
Further, if the merchants wish to pay him with their cargo for the amount due him in lading fees, he shall accept their proposal, but he cannot force the merchants to give him anything additional, unless there had been some special agreements and promises concluded between them concerning this matter.
Further, the above provisions shall be interpreted in the following manner: that if this cargo was to be carried for a set fee, and the cargo consists of various kinds of merchandise loaded aboard the vessel, such as some chests of silks, saffron, spices, and other valuable merchandise, and all the other cargo that they wish to leave to the patron in lieu of the lading fees, and does not have the value equal to the amount due him, the patron shall not be required to accept such a cargo if he refuses to do so, because there had been cargo aboard the vessel that had been of higher value.
Further, if the merchants should find themselves in a location where they will be unable to sell their cargo and will be forced to exchange their cargo for other merchandise, they shall be required to give the patron of the vessel, if he will agree to accept it, enough [191] cargo to pay for the lading charges due him. If the patron should refuse to accept any of their cargo in lieu of cash, if necessary, all their cargo shall be sold to pay him; for it is necessary that the patron receive his lading charges, provided this is done in conformity with the prevailing customs.
If the patron would wish to make a concession to the merchants and delay this payment till they return to the place from which their voyage originated or until they reach a location where their cargo can be sold, he may do so, and neither the crew nor anyone else can attempt to interfere in this matter, unless the patron had made some other promises to his crew.
If the patron should make such a concession to the merchants, they shall share with him all the profit made in selling their cargo, proportionally to what they owe him for the lading charges. Should the merchants fail to make profit in selling such a cargo, they shall nevertheless be obligated to pay the patron the full amount due him for his services, for it would be improper that a patron would suffer damages because he wanted to be helpful to the merchants, and also because the merchants had not failed to make profit cannot be attributed to any fault on his part.
The patron shall share the amount of the profit he had received from the merchants, proportionally to the amount of wages due, with the sailors, unless there were some special agreements made with the sailors and the merchants.
Further, if the merchants had arranged to ship cargo and the lading charges were based per hundred weight, and they had not stated that one type of cargo shall be assessed for another type of cargo in paying for the shipping charges, the patron shall not be able to keep any part of one cargo, because no such agreement had been made between them. Therefore, every patron should be most careful at the time he is negotiating an agreement to carry cargo, in order that he would not suffer any loss; he should also be careful from whom he accepts such cargo, to make sure that the crew shall be paid, even if he would not be paid for carrying such cargo, because the crew had earned its wages by working aboard the vessel during such a voyage.
This article was written for the reasons given above.
276-A Merchantman Intercepted by an Armed Vessel
There is no need to discuss a situation when an armed vessel sets out on a journey, is cruising around, or is returning to its home port and intercepts a merchantman, and the latter vessel and its cargo belong to enemy nationals, because all informed persons know what will happen under such circumstances, and what is to be done, and [192] therefore it would be misleading to try to set some sort of a rule about this.
However, if an intercepted vessel belonged to friendly nationals and the cargo aboard it belonged to unfriendly nationals, the admiral in command of the armed vessel may force the patron of the merchantman to surrender all the enemy goods to him, or to keep these goods aboard the vessel until they reach safer waters. This provision should be interpreted in the following manner: that the admiral or a person designated by him shall attach a line to such merchantman, if the vessels are located in waters where there is no possibility that an enemy craft would be able to take such a vessel away from him. The admiral shall pay the patron the full lading fees he would have been paid for such confiscated cargo had it been delivered to its destination, as confirmed by the entry made in the ship's register. Should such a register not be located, the patron's deposition under oath as to the amount of lading fees due him shall be accepted as valid.
In addition, if it should happen that the admiral or the party designated by him to act in his stead are in waters where the booty can be easily stored nearby, and he should decide to do that, the patron of the vessel that has the enemy cargo aboard shall transport it to such place as ordered. However, an agreement should be concluded with the patron concerning this; and it shall be absolutely necessary that the admiral or the party designated to act in his stead fulfill the terms of such an agreement in every detail.
If they should have failed to conclude such an agreement concerning the lading fees, it shall be necessary that the admiral or the party designated to act in his stead shall pay the patron of the vessel, who will carry the confiscated cargo to the location ordered, the same amount of lading fees that any other vessel would be paid for doing this, and even if necessary a bigger amount, provided that the vessel shall reach the locality where the admiral or some other party designated by him shall be able to store the cargo safely, and provided that the location designated by the admiral or his representative for the delivery of this cargo shall not be in an enemy territory.
If aboard the vessel intercepted by a man-of-war there is some cargo that is claimed to be the property of the patron or some members of the crew, their claims will not be recognized as valid, but a search will be made in the entries of the register, provided such a register can be found. If no register is found, the patron and the crew members claiming ownership of such cargo shall make their depositions under oath. If they testify under oath that such cargo belongs to them, the admiral or the party designated to act in his capacity shall return such cargo to them without any opposition, taking [193] into consideration the reputation and respect the parties who had made such depositions enjoy.
If it should happen that the master of the intercepted merchantman, in spite of the orders issued by the admiral, should refuse to carry the enemy cargo he had aboard his vessel to the place designated, in order that those who seized this booty could store it safely, the admiral may sink or order such a vessel sunk, provided he takes measures to protect the lives of those aboard the merchantman; no authority in the world can hold him responsible for such action, regardless of the type and kind of accusations that would be made against him. The above should be understood as follows: that the major portion or all of the cargo aboard the merchantman had belonged to enemy nationals.
If it should happen that such a vessel belonged to enemy nationals and the cargo aboard it belonged to friendly nationals, the merchants who are aboard the vessel, and to whom all or most of this cargo belongs, should reach an understanding with the admiral as to the amount of ransom the vessel shall pay, the value of the booty, and the amount they are able to pay him, and the admiral shall conclude a sensible agreement with them, which will be possible for them to accept.
Further, if these merchants should fail or would refuse to reach an agreement or an understanding with the admiral, the admiral shall put a prize crew aboard this vessel that will sail the vessel to the location from which he had sailed forth, while the merchants shall pay him the lading charges equal to the fees they would have paid had the vessel delivered the cargo to its original destination, but not anything more.
Should it happen that these merchants shall be damaged and wronged by the terms imposed upon them by the admiral by force, the admiral shall not be held accountable because these merchants had refused to enter into negotiations and reach an agreement with him regarding the ransom of their vessel. There is yet another reason for this, namely, that often the vessel is worth more than the cargo it has aboard.
If, however, the merchants were willing to conclude an agreement or reach an understanding with the admiral, as has been discussed above, but the admiral due to pride or arrogance would take control of the vessel, as has been mentioned above, and took possession of both the merchants and their cargo, which he had no legal right to do, the merchants shall not be liable for any part or all of the lading charges; rather, the admiral shall reimburse them for all their damages and losses that they had suffered or expect to suffer due to the forcible manner in which he dealt with them.
Further, if it should happen that the man-of-war would intercept a merchantman in a place where it will be impossible for the merchants [194] to reach such an agreement or understanding with the admiral, and these merchants will be man of good reputation and able to guarantee the fulfillment of any agreement, the admiral is prohibited from using force against them. Should he resort to force, he will be liable for all the damages they incur. If it should happen that such merchants are not well-known and cannot pay the ransom, the admiral may resort to the use of force against them, as has been stated above.
277-Necessity of Unloading Cargo Due to Unforeseen Circumstances
If a patron has cargoed his vessel partly or fully, at the shore, in a port, at a dock, or at any other place, and then an unfortunate accident occurs that necessitates the unloading of part or all of the cargo and by an unfortunate accident we mean a loss of herds, equipment made out of wood, chains, or any other equipment, thus endangering the vessel, or the arrival of armed enemy vessels, if his vessel is located in an area where there are lifeboats that could be used to unload such cargo, the patron of the vessel shall rent these boats to unload the cargo, until such time as the cause of alarm would have passed, that is, until the damage has been repaired or other matters endangering the vessel no longer exist.
If he could not find such boats to unload and save the cargo, and nearby there are other vessels that are not engaged and not under sail, the patron of the vessel in danger should approach the patrons of these other vessels or persons who are in command of these vessels, explain his dangerous situation, and ask their help in saving his vessel and the cargo aboard it. If these patrons or persons in command of these vessels offer to help him without any compensation, he should accept their help and assume all the damages they may suffer due to this. If, however, the above mentioned patrons demand a reward or payment for their help, he shall meet their requests depending on the terms of the agreement he is able to reach with them.
If, however, these patrons demanded too much for their help, but he nevertheless agreed to meet their price, he should not pay them the full amount promised, but should turn this matter over to the arbitration by the Elders, who shall render a decision. What is the reason for turning such matter over to the arbitration of the Elders if both parties had agreed on the terms beforehand? Because if these people demanded half of the cargo and half of the vessel in order to help, the patron of the vessel in distress would have promised them what they asked for, even if it were not just that they should receive so much; for this reason such a matter as has been indicated shall be turned over to arbitration by the Elders.
Further, if a vessel that had been rewarded for helping was damaged [195] in some way, the party who paid the award shall not be held liable for any such damages.
If it should happen that aboard such vessels there would be no one who could help the distressed vessel, the patron of the latter vessel should approach the civil authorities where the misfortune took place, and with the approval of these authorities he may and can use these vessels to help his own, but he shall be liable for all the damages these vessels may suffer while he used them; in addition, he shall pay the owners of these vessels a reward in the amount determined by the local authorities.
If a misfortune overtook the vessel in a locality where it would be impossible to locate the local civil authorities quickly, and a complete loss threatens the vessel, the patron may use other such vessels without receiving permission from the civil authorities. However, he must assume full responsibility for any damages and losses that such a vessel may suffer due to this, and shall pay such indemnities and rewards as established by the Elders of the district where such a vessel is located.
This article has been written for the reasons given above.
278-Inability of the Patron to Undertake a Voyage Due to His Indebtedness
If a master of a vessel is indebted to anyone and if he remains in the locality where he had become indebted, together with his creditor for a period of a month, two months, or even a longer period, and the latter did not press for the repayment of the loan, and did not take this matter before the local judicial authority, until the moment he realized that the patron was about ready to sail in order to earn money, and then, when the patron was about to hoist anchor, this creditor would petition the court to issue an order forcing the patron to repay the loan, the court shall not interfere in this matter and attempt to force the patron to repay his loan, nor interfere with his date of departure, because as has been mentioned before, both the patron and his creditor were in the vicinity together and had ample opportunity to attend to this matter. If the debtor is able to procure a guarantor for such a loan, the court shall order that he do so. (9)
Under such circumstances the guarantor of the loan shall not be harassed by the court concerning the repayment of the loan until the borrower has returned from his voyage, that is, until he has returned to the place where the loan was to be repaid and where he had provided a guarantor, unless the latter accepted the responsibility for this [196] loan without any reservations.
A person who had accepted the responsibility for the repayment of a loan under such circumstances shall not be harassed by the courts or by the creditors until the liquidation of the property of the debtor has been completed. If the property of the original debtor is insufficient to repay such a loan, the courts as well as the creditor may take legal action against the guarantor for the repayment of the loan out of his own property.
If, however, the wealth of the original debtor was sufficiently large to repay the loan, under no circumstances shall the property of the guarantor be attached to guarantee the repayment of the loan unless he himself had agreed to such an arrangement.
Further, if a patron could not find a co-signer or guarantor, the court shall not delay the departure of his vessel. He shall testify under oath that he does not have and cannot find a co-signer. In addition, he shall be required to make a deposition under oath that he will return to the locality where the loan was made, and shall reach a satisfactory agreement with his creditor. The courts shall not be able to delay his departure if he fails to produce a co-signer, because his creditor failed to petition the court for such action before his departure, when both parties we re readily available at the same location, but the creditor had waited until he learned that the debtor was about to leave the country before taking any action. In addition, it would be a very serious injustice to the merchants who had their cargo loaded aboard if this vessel would be delayed, and could possibly lose their cargo due to such negligence on the part of the creditor, who had made no attempt to have his loan repaid until the vessel was ready to set sail.
Let therefore all creditors be very cautious and watchful and not wait till the last moment to settle such accounts, or they shall suffer the consequences described above.
This article was written for the reasons given above.
If it should happen that the master of such a vessel would die before he was able to return to the place where he had found the cosigner and before the loan was liquidated, the co-signer of the loan who had accepted full responsibility for its repayment, that is to say, he had agreed to be responsible for the repayment of the full amount of the loan after the voyage was completed, will be required to repay the loan, whether the debtor failed to return from the voyage, had died, or is alive, unless there had been some other agreements made by the interested parties, in conformity with well-founded customs.
[197] 279-Responsibility for the Cargo Entrusted to One's Care
If a party entrusted his cargo to another for trading purposes and had concluded an agreement in respect to this, that he shall deliver such cargo to a mutually agreed destination, and carry it aboard during a specific voyage or voyages he will undertake, he shall fulfill all the terms of such an agreement; such an agreement shall be binding whether it had been executed in writing, or orally, as long as it can be proved, if the necessity requires such proof.
If after the completion of such an agreement, containing the provisions mentioned above, the party who accepted the care of the cargo should release these goods to another party or send them aboard another vessel without the knowledge and approval of the party who entrusted such cargo to him, and if such cargo should be partly or totally lost, the party who had been entrusted with such cargo shall pay all the damages for the cargo lost as well as the profit that would have been made had the cargo been merchandised, because the latter had failed to live up to the terms of the agreement.
If, however, such cargo was not partly or completely lost, and had reached the destination specified by the party who had accepted such cargo under his command, and while at that place the cargo is allowed to remain so long that it is spoiled or damaged by the negligence of the party who had care of it, the latter shall pay all the claims due from spoilage or damage of the cargo.
If the party to whom such cargo was dispatched by the party who had accepted care of such cargo sold it at a very low price because of carelessness or lack of business acumen on the part of the merchant, that is, if this person failed to take proper precautions and care of such cargo, as he should have had done, and as would have been done by the party who had accepted care of the cargo, who would have accompanied it as had been set forth in the agreement, or if such a commission merchant had failed to sell it at the market price, that is, at the price that the cargo could have been sold at that time in that location, and had sold this cargo at a much lower price or even at loss, the party who had originally accepted care of the cargo shall pay the owner of the cargo the amount due him for the difference in the prices he sold the cargo and the actual amount that this cargo should have been sold at the destination to which he had shipped it, provided that the owner of such cargo can prove that there was a difference in the amount the cargo had been sold for and its actual value on the market at the place where it was sold.
The above resolutions should be understood in the following manner: that the destination where the cargo had been sent by the party who had accepted care of it was the same destination agreed upon between [198] himself and the owner of the cargo. However, if such cargo had been dispatched to another locality not specified in the agreement, it should be determined what were the prices on the market of some of this cargo and also of all varieties contained in this cargo, at the time and during the period when such cargo was placed on sale in that locality, and this determination shall be made by the owner of the cargo arbitrarily. Everything that has been stated above must be accomplished without any attempt at deceit and fraud.
The party accepting the cargo under his care shall therefore be required to pay the party who entrusted such cargo in his care all the damages due without any hesitancy and opposition because of his failure to fulfill the terms of the agreement, and in fact he had acted contrary to its terms and therefore it is only proper that he pay for all the damages that had resulted. There is another reason for this, namely, it would not be proper or just that anyone should have more right to the property of another than the owner of such property. Any person who would claim that he has such rights, or try to usurp such rights, should not call himself a merchant or a commission man, but rather a common thief; such person should be dealt with as a common thief and the prescribed punishment shall be the same as prescribed for a thief, because he can actually be called a thief because he had taken property belonging to another person without that person's knowledge and permission. If, however, the party who had accepted command of such cargo could show justifiable reasons why he acted in such a manner, he shall be absolved from all charges.
In addition, the agreements and promises that the parties had concluded should be taken into consideration, unless either of the parties involved shall be able to demonstrate that some circumstance or a well-established obstacle prevented him from fulfilling the terms of such an agreement or promise.
This article was written for the reasons given above.
280-Credence Shall Be Given to a Middleman Making a Deposition Under Oath
If anyone entrusted a patron of a vessel with money or cargo that was to be used in trading, he shall accept the accounting made of this transaction by the patron without any question whether a profit or a loss resulted from such an undertaking. If, however, the parties who had entrusted him with such an undertaking suspected that the accounting he had submitted to them of such transactions was suspicious and did not appear to reflect the true situation, they can demand that he make a deposition under oath that he accounting he made is factual and had been carefully and accurately prepared.
[199] If the party who had accepted such a commission shall testify under oath that the accounting he had rendered of this transaction is accurate and properly made, those who entrusted him with such commission shall have no right to make any further demands upon him, unless they can prove something to the contrary; they shall then accept his accounting whether it has shown profit or a loss. This is only proper, since anyone entrusting another with such a commission should have sufficient confidence in him, otherwise he would have not trusted him with the execution of such a task. It is also proper and just that those entrusting care of their property to others should have proper confidence in them, whether they earn a profit or suffer a loss in such a transaction, as much confidence as they had in them at the moment they were entrusting them with such a commission, unless as had been stated above they can prove something to the contrary. If they shall not be able to prove anything to the contrary, the deposition made under oath by the party who had been entrusted with their property shall be accepted, and he shall have no other obligation toward them.
Such are the customs in matters relating to marine commerce, regardless in what manner a commission had been entrusted to another party. Let, therefore, all be careful with whom they enter into such an arrangement and in what manner they go about it.
This article was written for the reasons listed above.
281-Agreements Concluded Between Merchants and the Patron of a Vessel Regarding a Shipment of Cargo
If the merchants conclude an agreement with the patron of a vessel either in writing or in the presence of witnesses to carry their cargo, he shall fulfill all the terms of such an agreement, as written or heard by the witnesses who were present when it was concluded.
If, however, the patron did not see the cargo personally or it was not identified in the written agreement or specifically mentioned in the presence of the witnesses, and the patron merely accepted the word of the merchant who had informed him that he had loaded a particular cargo aboard the vessel, and actually had loaded some other cargo aboard, that is, that the merchant had loaded aboard bags, crates, or bales, telling the patron or leading him to believe that in those aforementioned crates, bales, and bags are contained a certain number of hundred weight of cargo, but it appears to the patron that the contents of these bales, crates, and bags contain many more hundred weight of cargo than he had been informed by the merchant in the written agreement or one made in the presence of witnesses, the patron may reweigh such cargo.
[200] If the patron would be able to prove that the amount of cargo declared by the merchants at the time they arranged for shipment was smaller than he had been able to ascertain, he shall be able to demand additional lading charges in the amount determined arbitrarily by himself. In addition, if in the process of reweighing the cargo he found it was heavier than had been declared, and he had suffered some expenditures, the merchants shall reimburse him for this expense.
If he found that the amount declared was correct, he shall bear the cost of reweighing the cargo. If the merchant had been forced to bear some expense in reweighing his cargo, the patron of the vessel shall reimburse him because it had been proved that the amount of cargo he had declared had been accurate.
Further, the patron may order that the cargo be reweighed before it is loaded aboard the vessel or after it is unloaded at the port of destination.
If, however, the patron of the vessel had seen the cargo once or twice before it was loaded aboard the vessel and before it was specified in the agreement he had concluded, he shall not be allowed to make any stipulations or reservations about it. Nevertheless, if it should appear to the patron that the merchant had added some cargo into the crates, bales, bags, or chests mentioned above, after he had made arrangements for the shipment and after he had signed the agreement, the patron may force the merchant to swear an oath that he did not add any additional cargo, because the patron can order that the cargo be reweighed when the merchant claims that he only had a specified number of hundred weight of cargo.
Further, if the merchant had informed the patron that he will ship a specified number of crates, bags, bales, or chests of cargo without specifying their weight, and the patron had not asked him the weight of these crates, bales, bags, and chests, he will be unable under any circumstances to order that the cargo be weighed.
Nevertheless, if the patron suspected that the merchant had added some merchandise after arranging for its shipment and after showing the cargo to the patron, he can force the merchant by a court order to make a deposition under oath relating to this matter; if the merchant shall testify under oath, credence shall be given his testimony unless it can be proved that he perjured himself.
Should the patron be able to prove that the merchant had perjured himself, the latter shall be required to pay double the amount of the lading charges due on all the excess cargo that he has secretly added to his declared shipment, or the number of hundred weight of cargo in excess of the declared weight at the moment he had concluded the [201] agreement to ship such cargo; in addition he shall be turned over to the local court for having committed perjury.
Further, there is no need to discuss a situation when the cargo was shipped per hundred weight and the lading charges were levied on each hundred weight of cargo; it is certain that everyone knows well what should be the proper procedure under such circumstances, and what cannot be done.
This article was written for the reasons listed above.
282-When a Vessel That Had Been Engaged to Take on Cargo Is Restrained from Leaving By the Civil Authority
If merchants had engaged a vessel in a particular locality and after making arrangements for shipment of cargo, the vessel is restrained from sailing by local authority, the patron of the vessel shall be required to wait for the merchants as long as had been agreed between them when they engaged him.
If after the time they had agreed upon that he would have to wait for their cargo, the restrictions shall be removed by the local authority, the patron must take their cargo aboard and cannot demand any additional lading charges. The merchants shall be required to pay part of the expenses suffered by the patron while he had waited for their cargo. This is done so that neither the merchants nor the patron of the vessel would suffer any damage.
If it should happen that in the locality where the patron was to take the cargo aboard, the above mentioned restrictions imposed by the local authorities have not been removed after the expiration of the time that the patron had agreed to wait for the cargo, the patron shall not be required to wait any longer for the cargo, unless he would want to, and neither shall the merchants be required to wait for the patron if they do not wish. Nevertheless, the merchants shall reimburse the patron for his expenses while he waited for them, according to the decision made by two Elders. After this had been done, each party may proceed according to his own choice unless there had been some agreement made that one would wait for another.
If there had been no such agreement concluded, and as soon as the restrictions imposed by the local authorities where the vessel was to be cargoed are lifted, the merchants who had engaged the vessel may approach the patron and propose that he make preparations to take on the cargo. He shall not be required to do this unless he chooses and unless the merchants make a new agreement with him; the merchants on their part shall only be required to pay the expenses he had incurred due to such delay, unless they had promised him other things.
If it should happen that the merchants had made arrangements to [202] ship cargo but had not set a specific date or a period of time for the patron to wait for this cargo or for them to dispatch the vessel, and the above mentioned restrictions are invoked against the vessel, the patron shall not be required to wait for the merchants, nor shall they be required to wait for him, provided that the above mentioned expenses are paid.
If after the merchants had taken proper steps to remove the restrictions imposed by the civil authorities against the vessel, and they inform the patron that such restrictions had been removed and that he should begin to cargo the vessel, he is not obligated to do so unless he chooses to please them, unless the merchants reach an agreement or have reached an agreement with him, as had been stated when we discussed the situation when the vessel had to wait for the merchants, or in the case where the merchants had agreed to cargo and dispatch the vessel on a specific day or within a set period of time, and this is due to the fact that by all that is right, just, and proper, the patron would be burdened by such responsibility. It would not be just that a vessel should await the merchants until all the legal restrictions are removed, for such restrictions could last for such a long time that the vessel would no longer be seaworthy, unless the merchants had specifically agreed with the patron that he wait that long. (10)
If in case the merchants had told the patron to wait for them and that they will assume all damages, expenses, and losses that he will suffer, the patron should wait under the above provisions. If the master of the vessel continued to wait for them under the conditions and circumstances mentioned above, the merchants are liable, regardless of the continuance of such restrictions against the vessel, or whether these restrictions had been removed, whether they had cargoed the vessel or not, to reimburse the patron for all the damages, expenses, and losses that he suffered or may suffer without any dispute.
If the merchants should attempt to enter into disputes regarding the above stated conditions and circumstances, they shall be required to reimburse him for all the damages, losses, and expenses that he suffered or expects to suffer due to such disputes. If, on the other hand, the patron should attempt to enter into a dispute with the merchants because he is unwilling to carry out their agreement or the promises that he made to the merchants, and the merchants suffered damage, loss, or expenses due to this, he shall reimburse them for this, even if it became necessary to sell his vessel to satisfy their [203] claims.
This article pertains to a vessel that had not been cargoed partially or completely, because there are explanatory articles about the responsibility of the merchants toward a patron of a vessel that had been cargoed. However, this article shall be understood in the following manner: that if the merchants had informed a patron of a vessel that he wait for them, they shall be required to carry out all the provisions that had been stated above, because they had mutually agreed on the day or a period of time in which the merchants had promised to dispatch the vessel; thus there is no chance for any dispute among them in this matter.
This article has been written for the reasons listed above.
1. Reference is made to Article 84.
2. Reference is made to Article 125.
3. Reference is made to Articles 157 and 158.
4. Due to the inability to control moisture-laden air aboard such vessels, this appears to have happened frequently.
5. Reference is made to two, not one, articles, specifically, Articles 53 and 54.
6. Reference is made here to Article 145.
7. The only protection a buyer had against claims and loans was to get a written deposition under oath from sellers that the vessel was not encumbered and that if any claims should appear they would honor them.
8. Actually, reference is made here to three previous articles, Articles 60, 83, and 139.