It may be admitted that, if this doctrine were not supported by an appearance of good sense, it would not have survived.The ship is the only security available in dealing with foreigners, and rather than send one's own citizens to search for a remedy abroad in strange courts, it is easy to seize the vessel and satisfy the claim at home, leaving the foreign owners to get their indemnity as they may be able.I dare say some such thought has helped to keep the practice alive, but I believe the true historic foundation is elsewhere.The ship no doubt, like a sword would have been forfeited for causing death, in whosesoever hands it might have been.So, if the master and mariners of a ship, furnished with letters of reprisal, committed piracy against a friend of the king, the owner lost his ship by the admiralty law, although the crime was committed without his knowledge or assent.
It seems most likely that the principle by which the ship was forfeited to the king for causing death, or for piracy, was the same as that by which it was bound to private sufferers for other damage, in whose hands soever it might have been when it did the harm.
If we should say to an uneducated man today, "She did it and she ought to pay for it," it may be doubted whether he would see the fallacy, or be ready to explain that the ship was only property, and that to say, "The ship has to pay for it," was simply a dramatic way of saying that somebody's property was to be sold, and the proceeds applied to pay for a wrong committed by somebody else.
It would seem that a similar form of words has been enough to satisfy the minds of great lawyers.The following is a passage from a judgment by Chief Justice Marshall, which is quoted with approval by Judge Story in giving the opinion of the Supreme Court of the United States: "This is not a proceeding against the owner; it is a proceeding against the vessel for an offence committed by the vessel; which is not the less an offence, and does not the less subject her to forfeiture, because it was committed without the authority and against the will of the owner.It is true that inanimate matter can commit no offence.
But this body is animated and put in action by the crew, who are guided by the master.The vessel acts and speaks by the master.
She reports herself by the master.It is, therefore, not unreasonable that the vessel should be affected by this report."And again Judge Story quotes from another case: "The thing is here primarily considered as the offender, or rather the offence is primarily attached to the thing." In other words, those great judges, although of course aware that a ship is no more alive than a mill-wheel, thought that not only the law did in fact deal with it as if it were alive, but that it was reasonable that the law should do so.The reader will observe that they do not say simply that it is reasonable on grounds of policy to sacrifice justice to the owner to security for somebody else but that it is reasonable to deal with the vessel as an offending thing.Whatever the hidden ground of policy may be, their thought still clothes itself in personifying language.
Let us now go on to follow the peculiarities of the maritime law in other directions.For the cases which have been stated are only parts of a larger whole.
By the maritime law of the Middle Ages the ship was not only the source, but the limit, of liability.The rule already prevailed, which has been borrowed and adopted by the English statutes and by our own act of Congress of 1851, according to which the owner is discharged from responsibility for wrongful acts of a master appointed by himself upon surrendering his interest in the vessel and the freight which she had earned.By the doctrines of agency he would be personally liable for the whole damage.If the origin of the system of limited liability which is believed to be so essential to modern commerce is be attributed to those considerations of public policy on which it would now be sustained, that system has nothing to do with the law of collision.But if the limit of liability here stands on the same ground as the noxoe deditio, confirms the explanation already given of the liability of the ship for wrongs done by it while out of the owner's hands, and conversely existence of that liability confirms the argument here.
Let us now take another rule, for which, as usual, there is a plausible explanation of policy.Freight, it is said, the mother of wages; for, we are told, "if the ship perished, if the mariners were to have their wages in such cases, they would not use their endeavors, nor hazard their lives, for the safety of the ship." The best commentary on this reasoning is, that the law has recently been changed by statute.But even by the old law there was an exception inconsistent with the supposed reason.In case of shipwreck, which was the usual case of a failure to earn freight, so long as any portion of the ship was saved, the lien of the mariners remained.I suppose it would have been said, because it was sound policy to encourage them to save all they could.If we consider that the sailors were regarded as employed by the ship, we shall under- stand very readily both the rule and the exception."The ship is the debtor," as was said in arguing a case decided in the time of William III. If the debtor perished, there was an end of the matter.If a part came ashore, that might be proceeded against.
Even the rule in its modern form, that freight is the mother of wages, is shown by the explanation commonly given to have reference to the question whether the ship is lost or arrive safe.In the most ancient source of the maritime law now extant, which has anything about the matter, so far as I have been able to discover, the statement is that the mariners will lose their wages when the ship is lost. In like manner, in what is said by its English editor, Sir Travers Twiss, to be the oldest part of the Consulate of the Sea, we read that "whoever the freighter may be who runs away or dies, the ship is bound to pay:
