The law of the sea

by George L. Canfield; J. Y. Brinton; George W. Dalzell

1. Appointment and General Authority.—

The master is the commander of a merchant vessel. He has full charge of, and personal responsibility for the navigation and control of the ship, passengers, crew and cargo as the representative and confidential agent of the owner. The position is one of the most dignified and responsible known to the law.

In order to have the ship seaworthy, an owner must provide a master who is fully competent in respect of care, skill and honesty, a man of sound judgment and discretion; and in general, there must also be provided one of sufficient ability to supply his place, in case of accident or disability. (The Niagara, 21 How. (U. S.) 7; 2 Parsons Sh. & Ad. 1.)

Correspondingly, he is an officer to whom great power and wide discretion are necessarily confided. His authority is summary and often absolute, especially at sea, and can seldom be resisted by those over whom he is placed—as Chancellor Kent has expressed it: "He should have the talent to command in the midst of danger, and courage, and presence of mind to meet and surmount extraordinary perils. He should be able to dissipate fear, to calm disturbed minds, and inspire confidence in the breasts of all who are under his charge, in tempests as well as in battle. The commander of a ship must give desperate commands; he must require instantaneous obedience. He must watch for the health and comfort of the crew, as well as for the safety of the ship and cargo. It is necessary that he should maintain perfect order, and preserve the most exact discipline under the guidance of justice, moderation and good sense."

Our statutes require that only those whom the law has examined and approved shall occupy that position. The master must be an American citizen (Rev. St. § 4139); he must have a license from the Inspectors, who are charged to examine into his character and habits, as well as his technical qualifications (§ 4439);[5] he is sworn to the performance of the duties of his office (§ 4445); he must exhibit his license to the public (§ 4446); he is subject to summary punishment for incompetency (§ 4450); and his personal liability cannot be limited, as the owners may by law. In short the law contemplates the selection of picked men as masters in the merchant marine, and forbids the employment of others.

No formalities are required in his appointment by the owner. Any authorization which would suffice to otherwise create the relation of master and servant, or principal and agent, is enough (The Boston, Blatch. & H. 309). His contract need not be in writing, even if for more than one year. His wages are a matter of contract; he has no lien on the ship (The Nebraska, 75 Fed. 598), unless, possibly, one is created by the local law of the ship's flag.

In case of disaster, his duty requires him to stay by the ship as long as there is any possibility of good resulting therefrom. The popular phrase that "the captain should be the last man to quit the ship" is well founded in law (The Niagara, 21 How. (U. S.) 7).

His authority is generally implied and is according to the law of the ship's flag. Generally speaking, he is the owner's agent and his authority extends to all matters within the scope of his appointment. Where the owner is present, or easily accessible, this authority is narrowed, but otherwise it may be very broad, and measured only by the necessities of the situation, and the use and employment of the ship.

On shipboard, his authority is supreme, except, possibly, in the presence of the owner.

He has power to enforce discipline and inflict punishment, not unlike that in the relationship of parent and child, or teacher and pupil, save that he is forbidden by statute to inflict corporal punishment (Act of March 4, 1915). The old flogging days, therefore, are over, and the master who inflicts corporal punishment is guilty of a crime. He may, in proper cases, discharge or disrate members of the crew.

On the other hand, the law charges him with the duty of seeing that the crew has sufficient provisions (§ 4564); proper medical care (§ 4569); protection against unlawful violence, and the like; and he is criminally liable for abandoning sailors in a foreign port (§ 5363).[6]