Liability of factor under guaranty commission Faeter cannot relieve himself from liability. in Story's Agency, Sec. 33, that a factor may now ordinarily sell goods on a credit. See, also, id., post, Secs. 60, 110, 209. 2029. A factor who charges his principal with a guaranty commission upon a sale, thereby assumes absolutely to pay the price when it falls due, as if it were a debt of his own, and not as a mere guarantor for the purchaser; but he does not thereby assume any additional responsibility for the safety of his remittance of the proceeds. 2030. NOTE." Factor becomes liable to pay price and not as a mere guarantor."-Sherwood vs. Stone, 14 N. Y., p. 267; Wolff vs. Koppel, 5 Hill, p. 358; affirmed 2 Den., p. 368; Hastie vs. Couturier, 8 Exch., p. 40. "But he does not thereby become more responsible for the safety of remittance."-Heubach vs. Mollmann, 2 Duer, p. 227; Leverich vs. Meigs, 1 Cow., p. 645. A factor who receives property for sale, under a general agreement or usage to guarantee the sales or the remittance of the proceeds, cannot relieve himself from responsibility therefor without the consent of his principal. NOTE.-Heubach vs. Mollmann, 2 Duer, p. 227. ARTICLE IV. SHIPMASTERS. SECTION 2034. Appointment of master. 2035. When must be on board. 2036. Pilotage. 2037. Power of master over seamen. 2038. Power of master over passengers. 2039. Impressing private stores. 2040. When may abandon the ship. 2041. Duties on abandonment. 2042. When master cannot trade on his own account. 2043. Care and diligence. 2044. Authority of master. 2034. The master of a ship is appointed by the Appointowner, and holds during his pleasure. NOTE. The master is appointed by the owner, and the appointment holds him forth to the public as a person worthy of trust and confidence, and the appointment may be revoked at any time.-See 3 Kent Com., p. 161; Ward vs. Ruckman, 34 Barb., p. 419. The French Code de Commerce, Art. 219, provides that if a master who is dismissed is one of the owners of the ship, he may renounce his interest to the others and require from them the payment of the value thereof. It would probably be just to establish some such provision in favor of a master dismissed without good cause. ment of be on board 2035. The master of a ship is bound to be always When must on board when entering or leaving a port, harbor, or river. NOTE.-Code de Com., Art. 227. 2036. On entering or leaving a port, harbor, or Pilotage. river, the master of a ship must take a pilot if one offers himself, and while the pilot is on board the navigation of the ship devolves on him. NOTE.-Regulations respecting pilots of this State are contained in the Political Code, particularly Sec. 2436. It is the duty of the master engaged in a foreign trade to put his ship under the charge of a pilot, both on his outward and homeward voyage, when he is within the usual limits of the pilot's employment.-3 Kent's Comm., pp. 175, 176. See Sec. 2436, Pol. Code Cal., as to duties of pilots to cruise "at least ten miles seaward." By Sec. 2431, Pol. Code Cal., vessels coasting between San Francisco and Oregon, Washington, and Alaska ports, and all coasting between ports in this State, are exempt from pilotage dues; but these provisions, except in so far as they are recognized by the laws of trade and commerce, do not affect the relations of owner and master, as between themselves, nor their duties to the owners of cargoes, policies of insurance, bottomry, respondentia, and the like. A foreign voyage, in the language of trade and commerce, means a voyage to some port or place within the territory of a foreign nation.-Duties of Collection, Act of 1799, Chap. 128; 1790, Chap. 56; 1813, Chap. 2, U. S. Congress. Power of master over seamen. Power of 2037. The master of a ship may enforce the obedience of the mate and seamen to his lawful commands by confinement and other reasonable corporal punishment, not prohibited by Acts of Congress, being responsible for the abuse of his power. 2038. * * NOTE. The law makes no distinction between the officers, or mates, as they are called, and the common sailors.-Pars. Merc. Law, p. 385; Grant vs. Bailey, 12 Mod., p. 440. His (master's) authority at sea is necessarily summary, and often absolute. He should maintain perfect order, and preserve the most exact discipline, under the guidance of justice, moderation, and good sense.-3 Kent's Comm., pp. 159, 160. The mate is the next officer, and, virtute officii, discharges in addition the duties of master in case he dies, etc.-3 Kent's Comm., p. 176. Because he is responsible over to his employers for his conduct of the ship, etc., the master has great authority over the mariners on shipboard. He may imprison, and also inflict reasonable corporal punishment upon a seaman for disobedience to reasonable commands, or for disorderly, riotous, or insolent conduct; and his authority in that respect is analogous to that of a master on land over his apprentice or scholar.-3 Kent's Comm., pp. 181, 182, and Note "a," and authorities and cases there cited. Something more than a suspicion that a sailor is a dangerous man, is required to justify his imprisonment.-Jay vs. Almy, 1 Wood & M. R., p. 262. Flogging in the navy was abolished by Act of Congress, 28th Sept., 1850.—Act of 31st Congress, Chap. 80. The law watches the exercise of discretionary power with a jealous eye. If the correction be excessive or unjustifiable, the seaman is sure to receive compensation in damages on his return to port, in an action at common law.-3 Kent's Comm., p. 182; see, also, Pars. Mart. Law, Vol. I, p. 463. The subordinate officers have no authority to punish a seaman when the master is on board, unless by his orders.-Elwell vs. Martin, Ware's Rep., p. 53; Butler vs. McMillan, id., p. 219; United States vs. Ruggles, 5 Mason's Rep., p. 192. The master of a ship may confine any perpassengers. son on board, during a voyage, for willful disobedience master over to his lawful commands. NOTE.-See note to preceding section; see, also, Parsons on Mart. Law, Vol. I, pp. 391, 392, 393, 394, and gers; and to that end shall cause such regulations as private 2039. If, during a voyage, the ship's supplies fail, Impressing the master, with the advice of the officers, may com- stores. pel persons who have private supplies on board to surrender them for the common want, on payment of their value, or giving security therefor. NOTE.-See Code de Com., Art. 249. 2040. The master of a ship must not abandon it during the voyage, without the advice of the other officers. NOTE.-Pars. Mart. Law, Vol. I, p. 313, discusses this subject, and particularly "jettison," and says this practice of consulting the officers has passed away, and doubts the propriety of his doing so in any event; but favors plenary powers solely in the master. But id., p. 454, Sec. 4, of Chap. 12: The seaworthiness of a ship is provided by statute, to be ascertained on complaint of mate and crew by a survey at home or abroad. Act 1850, Chap. 27, Sec. 6, 9 U. S. Stats. at Large, p. 441. All which favors the rule of the text. when may the ship. abandon Duties on abandon 2041. The master of a ship, upon abandoning it, must carry with him, so far as it is in his power, the ment. money and the most valuable of the goods on board, under penalty of being personally responsible. If the articles thus taken are lost from causes beyond his control, he is exonerated from liability. NOTE.-Code de Com., Art. 241. When master cannot trade on his own account. Care and diligence. Authority of master. 2042. The master of a ship, who engages for a common profit on the cargo, must not trade on his own account, and if he does, he must account to his employer for all profits thus made by him. NOTE. In a case where the master was to receive a certain sum per month as wages and a commission of five per cent, and also a proportion of the profits, it was held that he could not traffic on his own account for his own benefit.-1 Pars. Mart. Law, pp. 379-80; Mathewson vs. Clarke, 6 How., p. 122; Code de Com., Arts. 239-240. 2043. The master of a ship must use great care and diligence in the performance of his duties, and is responsible for all damage occasioned by his negli gence, however slight. NOTE. He must take on board and carefully preserve all such papers as the ship should carry and as fall within his duty. During the whole voyage he must conduct himself, not only under ordinary circumstances, but in all exigencies and emergencies, with due discretion, courage, and energy, and complete fidelity to his duties.-1 Pars. Mart. Law, p. 378, Chap. 11, Sec. 1. Goods injured, responsible for.-Id., p. 384; see, also, Code de Com., Art. 221. The master is responsible personally for any damages or injury to the ship or cargo, or loss of either by reason of his negligence or misconduct.-3 Kent Comm., p. 181. 2044. The authority and liability of the master of a ship, as an agent for the owners of the ship and cargo, are regulated by the Title on Agency. NOTE.-See Title IX, "Agency," Sec. 2295, et seq. ARTICLE V. MATES AND SEAMEN. SECTION 2018. Mate, what. 2049. Seamen, what. 2050. Mate and seamen, how engaged and discharged. 2051. Unseaworthy vessel. 2052. Seamen not to lose wages or lien by agreement. |