The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-03-14

within the meaning Of the statute Of 1885. UNITED
States VI Matthew'S, Sumner C. G. r. 40; Abbot
On Shipping. Story Perkins edition, 244) II is
though entered into between the master and Sea.
men, Ia not confined to the original master with
whom the voyage h commenced, bat extends to any
other who may, In the course OF the voyage BE- sub
sttuted In his place; yet the party 30 substituted
must be one succeeding to the entire authority ADD
Office Of master Omitted States w. Cassidy, 2
Sumner @. r. 1921 The power Of Punishment rests,
under the general arisime La ', exclusively with the
master, while On board, nor can mate or other
subordinate officer iDfict punishment on the seamsu
w en- the master is on the vessel except by his Sc.
fhoity, express or implied, and II such punishment
bould be inf cted when the master Is present and
Dan prevent it, and Dies not he is person ,y respon
kible (U. S. VS.. Taylor, Sumner G q. r. 1884,;
flanders on Shipping, IS, s SO, and 80, S72-3) 1t
Is true an emergency may occur, In which for the
general safety is msy become necessary that sab.
ordinate officer an ,nld enforce immediate ooedisace
70 his own orders by the exercise Of violent or forc
BILE means. but Tin the language Of Judge S'ory)
TINS Is Dot 70 much punishment for the offence
OF disobedience as ne essay means OF com
Yelling the performance of duty at tns very
moment when It is necessary to enforce
prompt and immediate obedience" Nather
can the master delegate to any subordinate off ,er
general authority to infct punishment 1t his own
pleasure for the offences OF the crew; the master
stands in some respects In the relation OF parent
TO the crew, land is bound to exercise his Own uig
pent rs TO the time the manner, ard t1a circlm
stances under which punishment ID obs Unfit ted
on tbe crew for any past misdemeanots, or aby
present. misdemeanors not Immediately and matec
ally affecting TIE ships service or security" Toe
power OF oismissipg or removing seaman rests
wholly With the master, @ Kent, Ed, 1919 aud
II Is bis authority, directly suboriinstely, III the
inferior oifcers, when on duty, to which they
owe obedience. Nor IL this power OF removal
confined TO the case Of the seamen only bat in
q proper case the master may remove the
subordinate officers also. Irhompson VS.. Busch,
I III, Wash. G. g; R., 1888 Kent, 1919
This authority Of the master the crew aud sab
ordinate officers rests not alone upon the necessity
OF preserving discipline on board the ship, nor ex.
clusivcIy upon the contract between himself and
the seamen by virtue Of the sai piping articles hut
IT has its orgn partly 10 the fact that the master
Is himself personally responsble :, his owde-s and
to others for bis conduct master for any uj1y or
loss 10 the ship Or cargo, by OF hs own neRli
gence or misconduct, or that Of the men whom hs
employs. This responsibility attaches to him by
virtue OF the supremacy Of his Office, and it Is true
OF no other officer in The ship. IL has ts analogy
In the responsibility which attaches to the supreme
head In all governments, and, rs in the case of the
latter, nds its compens aon Ia the authority which
accompanies 1t over those for whose conduct the
RESP onsibility exists. g Kent, 235. Abbott 23l.
! Wash c. CIR, i42.) Ii such b. the nature and au
thoiity OF the office Of master, and such the rea-
tons between himself and crew; and IL il be true,
as most evident that the akill and the authority
manifest that the warranty of w0rthiness Ia not
complied with, when the authority is all in the
master, ar the skill In subordinate person. This
would be true. were such subordinate person known
TO the law, such ss first mate, the next highes. in
authority; but the truth Of the proposition becomes
more palpably manifest when the person in whom
the skill resides occupies 30 anomalous q position
as that held by Capt. Mcneil. His duties were
raval service, but entirely unknown 10 the
mercantile marine. In case of the de,th
or absence OF the master or tbs Occur,
Incompetent to the discharge If his duties, the
right and form Of the off devolve on the next in
command, the first mate. an Office kno IN to and
recognized by the law; copeland vs.. The New
sesman ships subjsct TO this very contingency, and
well knowing and understanding, and asserting to
the rule; but the pondescript office Of sailing
master he knows nothing OF, and Is not bound
to recognise either by the ussges Of tbs service
the maritime law. or his contract with the master
This very vessel was provided with first and sec md
mate, upon whom, in order would have devolved
event CT the death OF Captain Greene. Suppose
this contiDgt 1cy TO have happened on the voyage,
could Mcneil have claimed the right to succeed
him2 Could he have contested this right with the
chief mate Allowing tbat his commission gave
him some rights, they gave him no such right as
this. The law Of the marine, with which aloua the
insurer has to do, gives the right Of succession to
the next etcer In rank and no prV arran cement
between the owner and Mcneil, not koo an aud
asseDted TO by these defendants could baye ae ,ted
their right 10 claim that the masor should Du sue.
the Mt cessary authority to enforce dis pne. M
Neil would have occupied 10 respect TO the mate,
precisely The position which ne lad maintained in
elation to the master. Obedience would have been
due not TO him, but the mate, and his position
would continue to be what 1t had been from |
the Tristan anomalous post OF duty, with.
out responsibility or power. IL this view BE- I
correct, and II, as il seems TO be conceded, !
the mate was competen, seaman, then in what
respect. as regards Beavorthines, does the casa
difler from what it would have been had the vessel
left New York without Mcneil on b,srd2 The
skill 10 navigate would have been equally presen.
in the person Of the mate, and with tie advantage
OF his possessing some authority and the right to
claim the succession in case OF the masters decease
and yet can It be pretended that the vessel would,
under such circumstances, have been deemed sea-
worthy within the meaning ef the warranty But /
there is broader aspect in Walsh thiDk this doc
rine OF sea Totthlness o. respects the master, may
well be regarded. When the powers and duties OF
this Office, apart from the exercise Of nautical
skill, taken into confederation, some OF them in
volyiDg tie power OF fixing the liability OF the insu
rer himself, II Is clear 10 my mind that the parties,
when they enter into the contract, contemplate In
tho warranty Of seaworthness, in It's application 10
the master not merely skifu navigator, but a .
person OF sufficient experience in his calling, and OF
adequate Judgment and prudence, TO be equal to I
may determine the liabilities OF the parties. (
Take, for illustration, the familiar Instances
OF o technical total loss and jettiaon. la the
first, II is within the power Of the master TO
judgment OF his owners election to abandon. 1t J
may present case Of extreme difficulty; the master
is called 10 act, net npoD certaintie' bat upon \
probabilities; and II be acts upon correct estimise
Of these probabilities, be would be justified 10
abandoning, although the vessel be after yards
repaired 81 less than the esti mated expense. A /
jettson, properly made, fixes the liability Of the
insurer Ia general average; the proprlety OF making
!. is TO be determined by the master alone,
although be ia at liberty TO consult With
bus ofHcers. The crew hsve no authority
in the premises; 1t Is . right the exercise Of /
which requiref great judgment In determining the
degree Of necessity. A master may be o competent
seaman, 80 far AZ skill IN navigating tho vessel liz
concerned and yet totally destitute OF that judgment
which would make BIN equal to q crisis llks either
OF those just referred to- and while II may b. admit
ted that the mere absence Of high degree Of jldg-
mt and discretion In the MAJ ,ar who Ia M rfhe