Admiralty, Hughes, 117-124; 28-38.
Admiralty Reports, Brown, Williams, 208.
Sturgis v. Boyer, 24 How. 110.
Collisions, Marsden, Chapter VIII.
Webb, 14 Wall. 406.
[23] See § 9, Chapter XI, supra.
Salvage may be defined as a legal liability which is created by the rescue of maritime property from perils of the sea. It may be quite independent of contract or agreement and these do not affect its nature. The word also designates the reward or compensation for the rescue and, sometimes, the property which is saved. Its essentials are maritime property in peril and a voluntary successful effort to save it. From the standpoint of the owner of the property, it is the price of safety.
The ingredients of a salvage service are, first, enterprise in the salvors in going out in tempestuous weather to assist a vessel in distress, risking their own lives to save their fellow-creatures, and to rescue the property of their fellow-subjects; secondly, the degree of danger and distress from which the property is rescued—whether it were in imminent peril, and almost certain to be lost if not at the time rescued and preserved; thirdly, the degree of labor and skill which the salvors incur and display, and the time occupied. Lastly, the value. Where all these circumstances concur, a large and liberal reward ought to be given; but where none, or scarcely any take place, the compensation can hardly be denominated a salvage compensation: it is little more than a remuneration pro opere et labore (The Clifton, 3 Hagg. Adm. 14, 48 [quoted with approval in Cope v. Drydock Co., 119 U. S. 625]).
General Average is also the price of safety under different circumstances. It is the contribution required of the parties interested in a maritime venture to compensate the sacrifice of a part for the safety of the rest. The typical instance is the jettison of cargo in order that the ship may be saved; the loss is equalized by a general average.
The subject of salvage can only be vessels and property that is or has been on board a vessel. In Chapter I § 4, there is some discussion of what constitutes a ship within the meaning of the law. In Cope v. Drydock Co., 119 U. S. 625, salvage was claimed rescuing a floating drydock, which had been in collision with a steamship and was on the point of sinking. The Court held that the service performed was not salvage because the drydock was not a vessel and not a salvable thing. Justice Bradley said that a dock, though floating, was not used for the purpose of navigation and that "no structure that is not a ship or vessel is a subject of salvage," adding:
A ship or vessel, used for navigation and commerce, though lying at a wharf, and temporarily made fast thereto, as well as her furniture and cargo, are maritime subjects, and are capable of receiving salvage service.
*****
If we search through all the books, from the Rules of Oléron to the present time, we shall find that salvage is only spoken of in relation to ships and vessels and their cargoes, or those things which have been committed to, or lost in, the sea or its branches, or other public navigable waters, and have been found and rescued.
*****
There has been some conflict of decision with respect to claims for salvage service in rescuing goods lost at sea and found floating on the surface or cast upon the shore. When they have belonged to a ship or vessel as part of its furniture or cargo they clearly come under the head of wreck, flotsam, jetsam, ligan, or derelict, and salvage may be claimed upon them. But when they have no connection with a ship or vessel some authorities are against the claim, and others are in favor of it.
It was held by the Supreme Court of the United States (The Jefferson, 215 U. S. 130) that where a vessel, laid up in drydock in a shipyard for repairs, was saved from destruction by a fire, which was raging in the shipyard, by tug boats in the stream which played streams of water from the stream upon the endangered vessel, it was a case of salvage. The Court after remarking that a maritime lien for repairs existed against a vessel in drydock, said:
There is no distinction between the continued control of admiralty over a vessel when she is in a drydock for the purpose of being repaired, and the subjection of the vessel when in a drydock for repairs to the jurisdiction of a court of admiralty for the purpose of passing upon claims for salvage services, by which it is asserted the vessel, while in the dock, was saved from destruction.
Whoever performs a salvage service acquires a maritime lien of the highest rank upon the property saved for this compensation. This lien is quite independent of possession and will be enforced by a court of admiralty by a proceeding in rem, i.e., against the ship. Ordinarily it is the salvor's duty promptly to place the property in possession of the court by libeling it for salvage at his first opportunity for such an award as the court shall deem just. This will usually be his only remedy, in the absence of an express contract. There is no personal liability against the owner of the property saved unless he requested performance of the service or received the property with knowledge of the claim.
The amount of salvage is usually regulated by the value of the property saved and the value of that engaged in the operation; the degree of risk or peril and the time and expense of the salvors. The expenses of volunteer salvors cannot be recovered as such, though the court may take them into consideration in fixing the amount of the award.[24] Success is essential. There can be no salvage award for the most meritorious efforts if unsuccessful. It is the policy of the admiralty to stimulate efforts for the rescue of property in distress by liberal rewards and also to discourage exorbitant demands and inequitable behavior by correspondingly reducing them. In the case of the Sandringham, 10 Fed. 556, the court listed the factors involved in determining the amount to be awarded as salvage as follows:
(1) The degree of danger from which the lives or property are rescued.
(2) The value of the property saved.
(3) The risk incurred by the salvors.
(4) The value of the property employed by the salvors in the wrecking enterprise, and the danger to which it was exposed.
(5) The skill shown in rendering the service.
(6) The time and labor occupied.
(7) The degree of success achieved, and the proportions of value lost and saved.
Work of this nature is often performed by contract, by vessels and corporations equipped and organized for the purpose. This fact does not militate against their claims as salvors in proper cases but the courts will not hesitate to modify the contract if they consider it unjust. The case of the Leamington, 86 Fed. 675, contains a note giving many instances of amounts awarded under various circumstances.[25]
As a general thing salvage is not allowed in an amount exceeding 50 per cent of the value of the thing salved, although there are cases where as high as 75 per cent has been allowed. There was an old rule, "50 per cent for a derelict." This rule has been departed from in many cases. The amount to be awarded lies largely in the sound discretion of the trial court which takes into consideration all of the elements of labor, risk, value, time, expense, and any other features that may enter into the case. It is practically impossible to lay down rules for determining the amount to be awarded. The books, however, say that the award should not be so great that the salvage service becomes of no use to the owner of the thing salved. For example if the charges and expenses of the owner come to 50 per cent of the value of the thing salved, an award of 50 per cent will not be made to the salvors, no matter how perilous, arduous and meritorious their work may have been to the owners. Sometimes the award when computed on percentage of the value of the salved property is very small, in some cases only about 4 per cent. These are cases where the service performed was not extensive or highly meritorious and the salvage property was of large value, so that the amount of money received by the salvors was considerable, though the percentage was small. The amount awarded to salvors is not always calculated on the basis of a percentage or proportion of the value salved; in many cases the trial court fixes a flat figure which it thinks the service worth.
Generally, any one not under obligation to render the service, may rank as a salvor, and, conversely, those obliged to work, cannot claim any reward. Sailors on the ship in peril cannot be salvors until released from their engagement or an abandonment of the ship. A passenger cannot earn salvage by mere labor on a vessel in peril, for this is his duty, yet for extraordinary services he may have a salvage award. Such was the case of the Great Eastern when she had been disabled by a gale and was lying helpless in the trough of the sea. Among the passengers was a civil engineer who ingeniously devised and after twenty-four hours' labor carried out a plan for steering her so that she was able to make port. The court awarded him about $15,000. So, in the Fair American, captured by a French privateer and in charge of a prize-crew, her cook succeeded in recapturing and bringing her into port by exertions outside his line of duty, and ranked as a salvor accordingly.
A pilot acting within the line of his duty, however he may entitle himself to extraordinary pilotage compensation as distinct from ordinary pilotage for ordinary services, cannot be entitled to claim salvage, but a pilot is not disabled from becoming a salvor if he performs salvage services outside the scope of his duties. He stands in the same relation to the property as any other salvor (Hobart et al. v. Drogan, 10 Peters 108).
Cases have frequently arisen in which a vessel that has towed another into a place of safety has claimed salvage for so doing. Whether or not the service rendered amounts to salvage and entitles the towing vessel to a salvage reward, or is mere towage to be recompensed as such, is sometimes difficult to determine. There is no fixed guide. In the J. C. Pfluger, 109 Fed. 93, the Court said:
If the vessel towed was by this means aided in escaping from a present or prospective danger, the service will be regarded as one of salvage, and the towage as merely an incident. If, upon the other hand, the vessel thus assisted was not encompassed by any immediate or probable future peril, such service will be treated as one of towage merely, and compensated as such. It was said by Dr. Lushington (The Charlotte, 3 W. Rob. Adm. 68) that, in order to constitute a salvage service, it is "not necessary that the distress should be actual or immediate, or the danger imminent and absolute; it is sufficient if, at the time the assistance is rendered, the ship has encountered any damage or misfortune which might possibly expose her to destruction if the service were not rendered." In McConochie v. Kerr (D. C. 9 Fed. 50), Judge Brown, in pointing out the distinction between a salvage and towage service, said:
"A salvage service is a service which is voluntarily rendered to a vessel needing assistance, and is designed to relieve her from some distress or danger, either present or to be reasonably apprehended. A towage service is one which is rendered for the mere purpose of expediting her voyage, without reference to any circumstances of danger."
In the case of the Emily B. Souder, 15 Blatch. 185, Fed. Cas. No. 4,458, Chief Justice Waite stated the law upon this point as follows:
"It is well settled that, if there is not actual or probable danger, and the employment is simply for the purpose of expediting the voyage, such service is towage and not salvage."
Under the plain and well-settled rule declared in the foregoing cases, whether a particular service was one of salvage or towage is always a question of fact to be ascertained from a consideration of the circumstances under which the court shall find the service was rendered; and, unless the evidence shows that the vessel towed was thereby assisted in getting safely away from some actual or apprehended peril, the case is not one in which salvage has been earned.
In the Reward, 1 W. Rob. 174, a distinguished English judge laid it down that,
Mere towage service is confined to vessels that have received no injury or damage; and mere towage reward is payable in those cases only where the vessel receiving the service is in the same condition she would ordinarily be in without having encountered any damage or accident.
The rule of the admiralty is that all who materially contribute to the rescue are entitled to share in the award. Thus the master and crew of the salving vessel are entitled to participate with the owner, according to their individual exertions and success. The owner should not appropriate the whole unless the crew were especially employed for the work. The court will frequently divide the amount between the owner and the crew and apportion the share of the latter in proportion to their wages. The principal element in determining the owner's share is the value of the ship and the risk to which it was exposed. Under special circumstances the cargo-owner may also participate.
Where the salving vessel is a steamer the owners' share of the salvage is larger and that of the crew proportionately smaller than if she were a sailing vessel or other craft because of the superior efficiency of a steamer in salvage work. Credit and compensation for the superior character of the salving vessel must go to her owners. In Transportation Co. v. Pearsall, 90 Fed. 435, there is a discussion of salvage distribution. In that case three tugs, all belonging to the same owner, had salved a steamer which had gone ashore. The owner of the tugs affected a settlement with the owners of the steamer and received $13,000 in full of all demands. A libel in personam against the master and owner of the tugs was brought by the engineer and fireman of the third, each claiming a share of the $13,000. The court decided that the owner of the tugs was entitled to two-thirds of the salvage award, and ordered the remaining one-third to be distributed among the masters and crews of the tugs proportionately, awarding the engineer $500 and the other libellants $200 apiece, these awards being in proportion to their wages. The court remarked that under the rule once prevailing in admiralty the owners of the salving vessel could not receive more than one-third of the award unless there were unusual circumstances of peril to the salving vessel, that that rule had been modified in the direction of greater liberality to steamships, citing cases in which the share of the salving vessel had been fixed at three-fourths and even four-fifths. The Court said:
An examination of the cases will show that there is no fixed rule with regard to the proportion in the salvage award allotted to the owners of the salving vessel. Most frequently salvage services are rendered upon a voyage, in the absence of the owners, and when the salving vessel is under the charge of, and is controlled by, the master and crew. As salvage is awarded for the encouragement of promptness, energy, efficiency, and heroic endeavor in saving life and property in peril, the claims of the master and crew who exhibited these qualities must meet the most favorable consideration. At the same time an allowance is made for the owners whose property has been imperiled. But when the owners direct the service, or when the peril encountered is chiefly that of the salving vessel, with no proportionate peril to the crew, an award to the owners is more liberal.
It was also said that the making of distribution in proportion to the wages is a "just and uniform rule in all ordinary cases."
Where salvage is performed by successive sets of salvors,—for instance, if one set of salvors gets a ship off a reef, and a second set takes her into port—the award is apportioned between the two sets, special consideration being shown to the first set of salvors because they made the work of the second possible.
The vessel, cargo, and freight money saved are to contribute to the payment of the salvage award according to their relative values at the port of rescue. As between the ship and cargo, each is liable for its own proportion alone. The salvor cannot recover the entire salvage from either, but only the proportion for which respondent is liable. As was said by Justice Story in Stratton v. Jarvis, 8 Peters 4:
It is true that the salvage service was in one sense entire; but it certainly cannot be deemed entire for the purpose of founding a right against all the claimants jointly, so as to make them all jointly responsible for the whole salvage. On the contrary, each claimant is responsible only for the salvage properly due and chargeable on the gross proceeds or sales of his own property pro rata. It would otherwise follow that the property of one claimant might be made chargeable with the payment of the whole salvage, which would be against the clearest principles of law on this subject.
Where a ship is saved and unable to continue her voyage and carry out her contracts of affreightment, the freight is one of the things of value saved, but in determining the value of the freight saved for the purpose of assessing a salvage award against it, "the freight to be considered is only such proportion of the freight earned by the entire voyage as the distance at which the salvage service was rendered from the port of departure bears to the whole voyage." The Sandringham, 10 Fed. 556.
By the Act of August 1, 1912, (7 U. S. Comp St. §§ 7990-7994) it is provided that the right to remuneration for salvage services shall not be affected by the fact that the same person owns both vessels; that the master must render assistance to every person found at sea who is in danger of being lost, so far as he can do so without serious danger to his own vessel, under penalty of not exceeding one thousand dollars or imprisonment not exceeding two years, or both; that salvors of human life are entitled to share in the award; that salvage suits must be brought within two years; and that nothing in the Act shall apply to ships of war or Government ships on public duty.
Where a fishing schooner on the Atlantic picked up a floating body on which was a wallet containing a considerable sum of money and promptly delivered the treasure to the court, they were awarded one-half the amount, to be apportioned one-third to the owners of the fishing vessel, one-third to the master and one-third to the crew; the master's share was made somewhat larger because he had resisted the proposal of some of the crew to merely divide the coin and say nothing. The balance was turned over to the public administrator of Massachusetts to hold for the benefit of the unknown heirs, and, if they failed to appear, for further disposition according to law (Gardner v. Gold coins, 111 Fed. 552). The Egyptian obelisk, now in London and known as "Cleopatra's Needle," became the subject of salvage services in the Bay of Biscay, during its voyage from Alexandria and the award was two thousand pounds (see Dixon v. Whitworth, 4 Asp. M. L. C. 138, 327). In the Jefferson, 215 U. S. 130, the vessel was in a drydock and threatened by a conflagration on adjoining property; tugs stood by and played streams from their hose upon her until the danger was past. The court overruled the argument that the service could not be salvage because the vessel was not afloat and directed an award. Where, however, a steamer had been swept high and dry on the shore about a hundred feet above high-water mark and lay there five years, the court declined to consider as salvage the plan and work of floating her by dredging out a basin and canal for her flotation; she had ceased to be engaged in commerce and navigation and the contract was not maritime (Skinner, 248 Fed. 818). The doctrine of this case will probably not be extended beyond its own facts. In the Burlington, 73 Fed. 258, where the ship had been stranded to put out a fire and lay as a menace to navigation while the owner and underwriters were in dispute as to his right to abandon, and the salvor brought her safely into port, he was awarded the entire value as salvage; while in Murphy v. Dunham, 38 Fed. 503, where the salvor proceeded on the erroneous idea that the cargo-owner's title is extinguished when his property sinks, and salved it for his own use, he was only allowed his expenses and narrowly escaped being assessed for the full value. The Albany, 44 Fed. 431, is another instance of the persistence of the old notion that title is acquired by finding property lost at sea; the ship had stranded and the master was jettisoning a valuable cargo of package freight; the countryside swarmed with wagons and lighters to appropriate what could be obtained. The Court held the parties as for embezzlement and said there was a medieval flavor about their conduct which recalled to a student of maritime law the customs of the ancient Gauls, who not only appropriated the cargoes of vessels wrecked on their coasts but sold their crews into slavery or sacrificed them to their gods. The Court quoted the following succinct statement of the nature of salvage from Mr. Justice Story:
In cases of salvage, the party founds himself upon a meritorious service, and upon an implied understanding that he brings before the court, for its final award, all the property saved, with entire good faith, and he asks a compensation for the restitution of it uninjured and unembezzled by him. The merit is not in saving the property alone, but it is in saving and restoring it to the owners. However meritorious the act of saving may have been, if the property is subsequently lost, and never reaches the owner, no compensation can be claimed or decreed.
The former is a partial loss, voluntarily incurred for common safety, and recompensed by all benefited thereby; the latter is a partial loss involuntarily caused, which must be borne by the party on whom it falls. One of the most approved definitions of general average is,—"All loss which arises in consequence of extraordinary sacrifices made, or expenses, incurred, for the preservation of the ship and cargo, comes within general average, and must be borne proportionately by all who are interested."
In the case of Barnard v. Adams, 10 How. (U. S.) 270, the ingredients of general salvage were thus stated:
In order to constitute a case for general average, three things must concur:
1st. A common danger; a danger in which the ship, cargo and crew all participate; a danger imminent and apparently "inevitable," except by voluntarily incurring the loss of a portion of the whole to save the remainder.
2nd. There must be a voluntary jettison, jactus, or casting away, of some portion of the joint concern for the purpose of avoiding this imminent peril, periculi imminentis evitandi causa, or, in other words, a transfer of the peril from the whole to a particular portion of the whole.
3rd. This attempt to avoid the imminent common peril must be successful.
The rule expresses the plainest principles of common justice but is confined to maritime law and within somewhat precise limitations. The sacrifice for which contribution is sought must be directed by the master of the ship or by his authority;[26] it must be voluntary and for the safety of the entire venture;[27] it must be necessary and successful;[28] and neither the party whose fault occasioned the loss nor any outside of the interests represented in the ship and cargo can have contribution.[29] Thus the scuttling of a ship by order of port authorities to extinguish a fire in the hold is not general average, although it would have been if done by order of the master. If the vessel is stranded by force of wind or current, there is no general average loss, while if the master deliberately puts her ashore, choosing the locality to escape a greater danger, it will be considered a case for general average by American law. Where the master threw overboard a quantity of coin, not to save the ship and cargo, but to prevent the money falling into enemy hands, it was not general average although it would have been if his purpose had been to lighten the ship in order to escape. Where the sacrifice is not necessary, in a pecuniary sense, for the common safety, it is not allowed, as where a vessel met a foundering emigrant ship and threw overboard part of its cargo in order to take the passengers on board; this was not a general average loss entitling the owner of the cargo to contribution. When the sacrifice is unsuccessful there is no general average, as where the master of a ship which was dragging her anchors cut away the masts to prevent the drifting, but she finally went ashore; and where the cause of the sacrifice is a fault of the ship or defect in the cargo, contribution is denied; so also when a tug cuts the towline of her barges in a storm to save herself from going ashore with them and thereby saves herself.
The classic example[30] is throwing overboard (or, as it was called, jettisoning) a part of the cargo in order to escape a storm. Thus if there is a ship worth $20,000, freight list, $10,000, and cargo $70,000, of which X owns $30,000, Y $20,000, and Z $20,000, and $10,000 of X's goods were jettisoned, each interest, including X, will bear 10 per cent of the sacrifice; the ship pays X $2,000; the freight list pays him $1,000; and Y and Z pay him $2,000 each; he receives $7,000 and stands $3,000 and so the sacrifice is equally borne by all. Cargo may be burnt as fuel, or lost by a sale or pledge to raise money to continue the voyage; a mast may be cut away to lighten the ship or the engines injured by overwork to escape disaster or expenses incurred by deviating to a port of refuge for repairs; cargo may be warehoused or transshipped; salvage expenses may be incurred in saving the venture from a stranding or sinking after a collision; and all the various and multiform forms of loss sustained and expenses incurred for common safety, within the definition, are made good by the contribution of all.
Ordinarily a jettison of cargo carried on deck does not give rise to general average, although deck cargo is not exempt from contributing its share of the average for other cargo jettisoned for its safety. But deck cargo will be entitled to participate in general average where the goods are of such character as it is customary in the trade to carry on deck; also where the other cargo-owners have expressly consented that it be carried on deck; also usually in coasting and river voyages. The cases excluding deck cargo from average have generally arisen out of sailing vessels and it may be that the rule should be confined to sailing vessels.
This ascertains the amount of the claim and the respective shares of contribution. It is the duty of the master and shipowner to see that timely steps are taken for this purpose.
After a voluntary sacrifice of part of the adventure, and a consequent escape of the rest from imminent peril, the owner of the ship, or in his absence, the master as his agent, has the duty of having an adjustment made of the general average, and has a maritime lien on the interests saved, and remaining in his possession, for the amount due in contribution to the owner of the ship; and the owner of goods sacrificed has a corresponding lien on what is saved, for the amount due him (Ralli v. Troop, 157 U. S. 386).
The work is usually done by an adjuster and often requires a high degree of professional skill. He determines what losses are to be adjusted, what goods contribute, how the values of the receiving and contributory interest are estimated, and when and where the adjustment should be made. He must necessarily bring to this work a special acquaintance with maritime law and the current decisions of the courts on the subject as well as a practical acquaintance with the values involved and the methods of business which they represent. He is, however, merely an expert without any judicial authority and his work is subject to review by the parties in interest. In practice, the shipowner places in his hands the documents from which the necessary facts can be ascertained; the protest of the master and mariners showing the circumstances under which the sacrifice was made and the manifest of the cargo to show the goods involved will be essential; in addition there may be the report of surveyors as to the condition and value of the ship and other property involved and such other evidence as the adjuster requires to have before him, the valuations of hull, cargo, freight and all other items involved in the contribution, excepting the wages of the master and crew, their personal effects and the apparel, jewelry and baggage of the passengers.
[24] Teutonia v. Erlanger, 248 U. S. 521.
[25] See § 10, this title, infra.
[26] The reason is that the master "derives his authority from the implied consent of all concerned in the common adventure" (The Hornet, 17 How. 100). "The character of agent respecting the cargo is thrown upon the master by the policy of the law, acting on the necessity of the circumstances in which he is placed" (The Gratitudine, 3 C. Rob. Adm. 240).
[27] "Where the sacrifice, while for the general benefit of the whole adventure, was also for the particular benefit of the cargo, it was not a subject of general average" (The Mary, 1 Sprague 19).
[28] Expenses voluntarily and successfully incurred, or the necessary consequences of resolution voluntarily and successfully taken, by a person in charge of a sea adventure, for the safety of life, ship and cargo, under the pressure of a danger of total loss or destruction imminent and common to them, give, the ship being saved, a claim to general average contribution (Abbott on Shipping, 537, note).
[29] Thus where a tug abandoned her tow in order to save the tug; the owners of the tow were not entitled to general average contribution because it was not a part of the ship or cargo.
[30] Probably the earliest recorded case is that mentioned in Jonah 1, where cargo was jettisoned to lighten a ship in peril on a voyage from Joppa to Tarshish. The elements of general average were present, though it does not appear that an adjustment was made.
A crime consists in the violation of a public law either forbidding or commanding an act to be done. One act may constitute several crimes against different jurisdictions, as against a State and the United States and a foreign country. Crimes are classified as treason, felonies and misdemeanors. Treason against the United States consists only in levying war against them, or in adhering to their enemies, giving them aid and comfort. Felonies are crimes punishable by death or imprisonment in a state prison; all other crimes are misdemeanors.
Crimes committed at sea are those accomplished upon the high seas or within the jurisdiction of the admiralty, which extends over all navigable waters. Such crimes are punishable by the United States so far as Congress legislates on the subject and otherwise by the particular sovereignty within whose jurisdiction the offense is committed.
The constitutional grant embraces criminal as well as civil cases and no crime can escape punishment because committed on shipboard or on the high seas. The provisions of the Constitution in regard to the trial of crimes under the laws of the United States require the proceedings to be according to the practice of the common law, so that they are before a jury as in ordinary cases and the ordinary rules of criminal law are applied. These crimes are covered by the Criminal Code (10 U. S. Comp St. 1916, 10419-10444; 10445-10462; 10463-10483). There may also be other crimes according to the law of the place where the vessel may be or according to the laws of the State or country from which she hails. Merchant vessels are regarded for many purposes as floating portions of the country to which they belong and of the particular State of their home port. An American merchant vessel on the high seas will therefore continue under the appropriate laws both of the United States and of her own particular State, and while in foreign ports she will also be subject to local law. She will never be outside the scope of some law and although several jurisdictions may overlap, crimes committed on board will not escape punishment.
Whenever an offense is committed on board of an American vessel, it is the duty of the master and crew to detain the offender and surrender him to the proper authorities for trial as soon as may be. If the offense is within the limits of a particular State, the trial must be in a Federal court therein; if committed on the high seas, then in a like court of the district wherein the offender is apprehended or into which he is first brought; if within a port of a foreign country, the local laws may prevail. The jurisdiction of every independent nation over the merchant vessels of other nations within its boundaries is absolute and exclusive and arrests may be made thereon and offenders removed for trial according to the laws of the locality. The right of local authorities to search a vessel in their ports for a person charged with crime is established unless modified by treaty. The master is bound to submit to the jurisdiction within which his vessel lies. In practice a distinction is made between offenses affecting the peace and dignity of the foreign country and those only involving the internal order and discipline of the ship. A certain comity preserves the latter from outside interference and local authorities will usually decline to act in such cases or interfere with the general authority of the master. It is frequently provided by treaty that disputes between the masters, officers and crews may be adjudicated by their consuls, provided that they do not disturb the peace or tranquillity of the port.
Where the crime is committed on the high seas although not on shipboard, the admiralty jurisdiction as administered by the Federal courts will still be enforced. The case of Holmes, 1 Wall. Jr. 1; 26 Fed. Cas. No. 15,383, is an unusual example. The American ship, William Brown, loaded with passengers and cargo, struck an iceberg in the North Atlantic and had to be abandoned. Nine of the crew and thirty-two passengers got into the longboat; Holmes was one of the crew and took charge of her in an attempt to reach Newfoundland, then about three hundred miles away. The longboat proved leaky and was so seriously overloaded by those on board as to fill with water in the sea which began to rise. In the face of urgent necessity and under Holmes' general directions, sufficient of the passengers were thrown overboard to enable the boat to float until picked up by a passing ship. Holmes was convicted of manslaughter in the Eastern District of Pennsylvania.
The ship herself may be a quasi-criminal under maritime law. All commercial nations find it necessary for the enforcement of their laws and regulations in regard to commerce by sea, to impose penalties upon the vessel by or through which violations occur. So a vessel which has engaged in any piratical aggression may be condemned and sold for the use of the United States. Violation of a blockade or carriage of contraband of war renders the ship liable to seizure and sale by the Government. A ship licensed for the coasting trade may be forfeited if she engages in any other, and many penalties may be inflicted upon the vessel for acts of which the owner is entirely innocent. Similarly a false oath made in order to obtain the registry of a vessel, or any other fraud for the purpose of obtaining registry, enrollment or licenses will result in her forfeiture, and so will a sale to an alien without complying with the provisions of the statutes (Chapter 11, § 10, supra). Forfeiture of a vessel will also result from an attempt to change her name, otherwise than by the method provided by law (Chapter 11, § 9, supra), or to deceive the public as to her true name and character by any contrivance, device or advertisement of law where the owner or the master is privy to the offense, as for example the importation of diseased cattle. The doctrine of the personality of the ship again appears in the criminal law of the admiralty which treats her like an individual for purposes of regulation and punishment. The principle was laid down by Justice Story in the brig Malek Adhel, 2 How. (U. S.) 210:
It is not an uncommon course in the admiralty, acting under the law of nations, to treat the vessel in which or by which, or by the master or crew thereof, a wrong or offense has been done as the offender, without any regard whatsoever to the personal misconduct or responsibility of the owner thereof.
*****
The acts of the master and crew, in cases of this sort, bind the interest of the owner of the ship, whether he be innocent or guilty; and he impliedly submits to whatever the law denounces as a forfeiture attached to the ship by reason of their unlawful or wanton wrongs.
Thus if a vessel fails to carry the wireless equipment prescribed by law a fine is imposed upon the master and is a lien upon the ship enforceable by law in admiralty. The statute governing the equipment of vessels with radio telegraph apparatus is given under § 11 infra. Innocent cargo is not involved in the forfeiture of a guilty vessel, and where the owner and master of a vessel is innocent she will not usually be forfeitable by reason of the guilt of the cargo.
The sending, or attempting to send to sea, of a vessel so unseaworthy as to be likely to endanger life, is a misdemeanor for which the person guilty is to be punished by fine or imprisonment, or both (Act of December 21, 1898, § 11), unless he is able to prove either that he used all reasonable means to insure her being sent to sea in a seaworthy state, or that her going to sea in an unseaworthy state was under circumstances reasonable and justifiable.
This was promulgated by the Act of March 4, 1909, and will be found in 10 Comp. St. 1916, commencing at page 12491. Maritime offenses are grouped in Chapter 11, "Offenses within the admiralty and maritime and the territorial jurisdiction of the United States," and Chapter 12, "Piracy and other offenses upon the Seas." Unlike the legislatures of the several States, which have an inherent power to define and punish any act as a crime, subject to constitutional limitations, Congress is confined to the powers enumerated in the Federal Constitution. In regard to offenses at sea, its power is derived from § 8 of Article 1, "To define and punish Piracies and Felonies committed on the high seas, and Offenses against the Law of Nations," and from Article III which provides that the judicial power shall be versed "in such inferior courts as the Congress may from time to time ordain and establish" and shall extend "to all cases of admiralty and maritime jurisdiction." Chapter 11 provides for the punishment of murder, manslaughter, felonious and simple assaults, attempts to commit murder or manslaughter, rape, seduction, loss of life by misconduct of officers of vessels, maiming, robbery, maritime arson, larceny and receiving stolen goods, when committed upon the high seas, or any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, or within such admiralty jurisdiction on board of any vessel belonging in whole or in part to the United States, or any citizen thereof, or corporation created under its laws or those of any of its States, Territories or Districts; also, when committed upon any American vessel on a voyage on the Great Lakes, or upon any island, rock or key, containing deposits of guano and appertaining to the United States.
Chapter 12 provides for the punishment of piracy; maltreatment of crews; incitement of revolt or mutiny; seamen laying violent hands on commanders; abandonment of mariners in foreign ports; conspiracy to cast away vessels; plundering vessels in distress; holding false lights; attacking vessels with intent to plunder; breaking and entering vessels; destruction of vessels at sea; robbery on shore by pirates; arming vessel to cruise against citizens; piracy under color of foreign commission; piracy by aliens; voluntary surrender to pirates; plotting or corresponding with pirates and selling arms or intoxicants to any aborigines in Pacific Islands. The punishments provided for the offenses in these two chapters are generally severe but in harmony with what experience has shown to be appropriate for the crimes dealt with.
Besides these provisions, the Code, in Chapter 10, deals with the slave trade and peonage; in Chapter 2, with offenses against neutrality; and in Chapter 9, with offenses against foreign and interstate commerce, such as carrying explosives on passenger vessels.
Title LIII Merchant Seaman (7 Comp St. §§ 8380-8391) contains various provisions in respect of offenses and punishments of seamen; desertion; willful disobedience; assaults on officers; damaging the vessel; embezzlement of stores or cargo; smuggling; drunkenness; carrying sheath-knives; unlawful boarding; soliciting seamen as lodgers; and corporal punishment are there dealt with.