If these means fail, he is next to hypothecate (that is, pledge) the ship (bottomry,) or cargo (respondentia,) or freight, or sell part of the cargo, according to circumstances. If the owner of the ship is also owner of the cargo, the better opinion seems to be, that the master may take whichever of these means can be adopted with the least sacrifice of the owner's interest; though, probably, selling part of the cargo would in almost all cases be the least favorable course for all the purposes of the voyage.[ [52] If the owner of the ship is not owner of the cargo, the master should bear in mind that he is agent of the former, and has generally no further control over the cargo than for safe keeping and transportation.[ [53] He should, therefore, first exhaust the credit of the ship and freight by hypothecation; and if these means fail, he then becomes, by necessity, agent for the owners of the cargo for the purposes of the voyage, and may hypothecate the whole, or sell a part, according to circumstances. As to selling part, he should remember that his duty is to carry forward the objects of the voyage, and that selling a large part would probably impair these objects more than hypothecating the whole.[ [54]
In no case can any of the cargo be sold or hypothecated to repair or supply the ship, unless these repairs and supplies are to be for the benefit of the cargo. The strictest proof is always required that the repairs were in the first place necessary, and, in the next place, that they were for the benefit of the cargo, and not merely for the good of the ship-owner.[ [55]
A further question arises, whether the master has ever, and when, the right to sell the whole cargo and the ship itself. If it should be impossible to repair the ship and send her on the voyage by any of the means before mentioned, it then becomes the master's duty to forward the cargo to the port of destination by some other conveyance. If neither of these things can be done, then he becomes, from necessity, agent of the owner of the cargo, and must make the best disposition of it in his power. If the goods are perishable, the owner cannot be consulted within a reasonable time, and has no agent in the port, and something must be done with the cargo, and there is no one else to act—then the master must dispose of it in such a way as best to subserve the interest of its owner. He should take the advice of the commercial agent or other suitable persons, should also use his own judgment and act with good faith, and take care to preserve evidence that he has so done. If all these requisites are not complied with, he will incur the danger of having his acts set aside.[ [56]
The rule as to the sale of the ship is very nearly the same, except that it is, perhaps, still more strict. If all means for repairing the vessel and sending her on her voyage have failed, and a case of absolute necessity arises, the master may make a sale of her. As a prudent man, he should have the sale made, if possible, under the authority of the judicial tribunals of the place. Even this will not, of itself, render the sale valid, but will go far toward sustaining it. He should consult the consul, or other suitable persons; should have a survey made; should take care to have the sale conducted publicly and with the best faith in all parties, and to preserve evidence of the same. Although a person should buy in good faith, yet the sale will be set aside unless it can be shown that there was the strictest necessity for it. The master must not become a purchaser himself, and even if he afterwards buys of one who purchased at the sale, this transaction will be very narrowly watched, and he will be bound to show the very highest good faith in all parties.[ [57]
The strictness of these rules should not deter the master from acting, where the interest of all requires it, but will show him the risk that is run by acting otherwise than with prudence and entire honesty. He should remember, too, that, in taking command of a vessel, he not only covenants that he will act honestly and with the best of his judgment, but also holds himself out as having a reasonable degree of skill and prudence.[ [58]
As to the safe keeping, transportation, and delivery of the cargo, the master's duties and obligations are those of a common carrier upon land. He is bound to the strictest diligence in commencing and prosecuting the voyage, a high degree of care both of vessel and goods, and is held liable for all losses and injuries not occasioned by inevitable accident, or by the acts of public enemies. He is answerable also for unnecessary delays and deviations, and for the wrongful or negligent acts of all persons under his command. At the termination of the voyage, he must deliver the goods to the consignee or his agents. A landing upon the wharf is a sufficient delivery, if due notice be given to the parties who are to receive them. He is not, however, bound to deliver until the freight due is paid or secured to his satisfaction, as he has a lien upon the goods for his freight; but the consignee can require the goods to be taken from the hold, in order that he may examine them, before paying freight. In such case they should not go out of the possession of the master or his agents.
Deviation.—The master must not deviate from the course of the voyage. By a deviation is meant, technically, any alteration of the risk insured against, without necessity or reasonable cause. It may be by departing from the regular and usual course of the voyage, or by any unusual and unnecessary delay. A deviation renders the insurance void, whether the loss of the vessel is caused by the deviation or not. It is not a deviation to make a port for repairs or supplies, if there be no unnecessary delay, nor to depart from the course of the voyage in order to succor persons in distress, to avoid an enemy, or the like.
It is the master's duty, within twenty-four hours after arriving at his first port, to make a protest in case of any accident or loss happening to vessel or cargo. The log-book also should be carefully kept, without interlineations or erasures. The master must also enter a protest in case any American seaman is impressed, and transmit a copy of the same to the secretary of state, under a penalty of $100.[ [59]
Collision.—A vessel having the wind free must make way for a vessel close-hauled. The general practice is, that when two vessels approach each other, both having a free or fair wind, the one with the starboard tacks aboard keeps on her course, or, if any change is made, she luffs, so as to pass to windward of the other; or, in other words, each vessel passes to the right. This rule should also govern vessels sailing on the wind and approaching each other, when it is doubtful which is to windward. But if the vessel on the larboard tack is so far to windward that if both persist in their course the other will strike her on the lee side, abaft the beam, or near the stern; in such case, the vessel on the starboard tack must give way, as she can do so with less loss of time and greater facility than the other. These rules are particularly intended to govern vessels approaching each other under circumstances that prevent their course and movements being readily discerned with accuracy, as at night or in a fog. At other times, circumstances may render it expedient to depart from them. A steamer is considered as always sailing with a fair wind, and is bound to do whatever would be required of a vessel going free.[ [60]
Pilot.—The master must take a pilot when within the usual limits of the pilot's employment.[ [61] If he neglects or refuses so to do, he becomes liable to the owners, freighters, and insurers. If no pilot is at hand, he must make signals, and wait a reasonable time. The master is to be justified in entering port without a pilot only by extreme necessity. After the pilot is on board, the master has no more control over the working of the ship until she is at anchor.[ [62]