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OCTOBER 3, I9OI. THE MARINE RECORD. 9 LLL NAUTICAL EDUCATION IN SCHOOLS OF COMMERCE. Isa technical education in mechanics, seamanship, etc., merely advisable, or absolutely necessary, in the solution of, not every, but some legal puzzles involving them? Should the professor at law schools, schools of commerce, etc., who teaches the law of shippirg and admiralty, have the experience of a seamen as well as of a lawyer? The rather comical history of the attacks on naval court- martial sentences in civil courts, (which resemble the en- deavors of a landlubber to boxhaul a ship,) suggests that the mingling of seafaring with legal knowledge might have made different annals. From the re-enacting, by the first American Congress in 1776 of the old Mutiny Acts of Eng- land, and until more than half the next century had passed, lawyers appear to have been wary of admirals’ courts and to have regarded discretion as the better part of valor in meddling with them. No record can be found of any as- sault on their unknown bulwarks until so late as 1857. In 1857 a reckless attorney petitioned that a naval sentence be declared void by the U.S. Supreme Court on the ground that ‘‘Attempting to Desert’, (of which his client, seaman Dynes, was convicted) was not comprised within the accu- sation of ‘‘Desertion’” of which he was charged. The pro- found care given by the Supreme Court to seamen’s inter- ests was testified to in this case by the court’s giving some twenty pages to show that in charging Dynes with ‘‘Deser- tion,’ i. e., “‘Attempting to desert and being successful in the attempt’’, he was charged with ‘‘Attempting to Desert’’ and could thus be convicted thereof. (Dynes v. Hoover, 20 How., 65-84). In the next case, in 1879, Hon. Geo. S. Bout- well, cabinet officer and chief impeacher of President An- drew Johnson, could see no other semblance of defect in the court-martial sentence which he studied, than that 4 pay clerk in the navy was not in the navy and therefore not susceptible to trial by court-martial. The Supreme Court told Mr. Boutwell, with brevity, that he was. (Ex parte Reed, 100 U.S. 13). Next the distinguished Jeremiah Wil- son, in 1885, had a fling ata naval court-martial and asked the Supreme Court to release, by habeas corpus, from im- prisonment, a naval surgeon who was not in imprisonment. The Supreme Court told ‘Jere’ that they could not do it. (Wales v. Whitney, 114 U. S. 564). The next naval unfor- tunate who appears in the court reports evidently argued to himself that a lawyer who could fasten a court-martial sen- tence on an ‘‘accused”’, could unfasten such; and so employed the successful prosecutor of Judge-Advocate-General Swaim, Jeff. Chandler with Gen. Eppa Hunton to help him. The two could think of no other plea for their client, a paymas- ter-general in the navy, than that he was not subject to court-martial for the manner in which he performed his offi- cial duties. The Supreme Court assured them that he was. (Smith v. Whitney, 116 U. S. 167). Discouraged at the stupidity of the Supreme Court, the lawyers now turned their attention to the Court of Claims; and in 1888 Ex-Sena- tor Eppa Hunton petitioned that court (fora captain dis- missed on the charge of drunkeness and wrecking his ship) to deprive the Secretary of the Navy of the latter’s right to order officers under him, to tell the Secretary,when the statute empowered the Secretary to decide whether to order five or thirteen officers to constitute a ccurt-martial, that the Court of Claims would displace him thereafter in run- ning the Navy. That Court told Gen. Hunton that when the law gives the Secretary a discretion the Court of Claims could not takeit from him. (Mullan v. U.S., 23 Ct. of Cl., 36). One of the famous Blair family next flew into the alluring spider web of a naval court-martial, coming forward in 1889 with a request of the Court of Claims to set aside a sentence as being ‘‘uncertain’’, because the fine imposed by the sen- tence had only the mathematical certainty of an easy calcu- lation. The request was denied. (Williams v. U. S. 24 Ct. of Cl., 311). In 1893 two Norfolk attorneys asked the Su- preme Court to hold that Art. 43, sec. 1624 R. S. meant that a red handed murderer must be chased by a sheriff with for- mal charges and specifications made out, ready to ‘‘fur- nish him’’ therewith on the instant of his arrest, on the pen- alty of all trial and conviction of that murderer being pro- hibited. The Court did not agree with them. (Johnson v. Sayre, 158 U.S. 117). In 1897 the chief justice of Boston’s fashionable suburb of Brookline, argued a habeas corpus case in behalf of a Boston Navy Yard seaman. The hearing was in September 1897, and on the mysteries of the naval “articles;’’ and the result was an inability of the court to make up its mind until Dec. 31, 1897, when it decided that the seaman for whose imprisonment it had been responsible from September until December, was legally imprisoned. The statutes require that a habeas corpus writ shall be re- turned in three days and a hearing had in five, and that such case shall be ‘‘decided summarily.’’ The failure of the judge to decide this case for three months was charged toa less excusable incitement than intoxication produced by naval puzzles. The decision, however, contains no trace of his three months’ researches, (In re Crain, 84 Fed. 788). Perhaps the main difficulty in this also was due to the bad sailing of the case and fouling of the gear under un-nautical hands. In 1gor came the first victory for a hundred years. It was won by an attorney who had been a graduate of the U, S. Naval Academy and a commissioned officer of the Navy. Hehad been a judge-advocate of naval courts-mar- tial also. But it was rather to his seamen’s experience that he attributed his success. As a seaman he knew of a certain custom on board ship, apparently having no reference toa certain statute, that, as a lawyer, he knew did magically disentangle the snarl of that theretofore interpreted statute. Had he been either seaman or lawyer alone he could not have brought together a nautical fact and a statute which seemed to have nothing in common, in the non-intersecting spheres of thought of either lawyer or seaman. The case was prejudiced about as unfavorably as possible. Not only an opinion of the attorney general (19 Op. 476) but a decision of the Supreme Court itself (158 U. S. 117) was adverse to his contention. Nor was there any visible over-ruling of the Supreme Court’s decision. But the clue of the nautical fact opened out a nautical history of which the opinion in 158 U. S. 117 had been utterly barren. For- tunately a subsequent decision came to seamen’s rescue, se- curing them just trials by holding that a statute must be judicially interpreted in the light of its history. (169 U. S. 653: ‘‘In construing any act of legislatures, regard is to be had not only to all parts of any former act of the same law- making power, of which the actin question is an amend- ment; but also to the history of the law as previously exist- ing.’’) A further dubious suggestion of the court in 158 U. S. 118 that a seaman might in effect commit suicide by con- senting to be put to death although forbidden by court- martial law, was frowned down in the later Crain v. U. S. 162 U.S.644. As might be expected, in nautical trials, what- ever their errors of severity in other respects, the naval ac- cused is not desired to be critical and suspicious of his super- iors, but to accept all their doings with disciplined submis- sion, and is thus protected against failure to ‘‘plead in bar’’ and to take smart ‘‘exceptions.’’ Another nautical feature of this case and which would not have suggested itself to a lawyer not having a seaman’s life fully in his mind, will be found analyzed at length in the N. Y. Maritime Register of Sept. 18, 1901, under the title of ‘‘Maritime Notice.”’ Against the array of able legal talent named in this arti- cle, and their presumable greater army of unnamed consult- ants, was marshaled, not law learning, for the Navy Depart- ment does not pretend to that, but the skillful illusions of seamanship, displayed by officials desirous of stietching their province of command to the utmost. Was the defect overlooked for a hundred years because microscopical? Or was it as visible to the eye of the seaman as a rope’s end out of place? The Court of Claims answers: ‘‘To say now in the face of that statute that an officer or seaman in the navy can be arrested by his commanding officer, that he can be kept in close confinement for as longa time as General Stone was in 1862 without charges being preferred against him; that he can be carried to the other side of the world from the spot where the alleged offense was committed, and be first informed of it when the charges against him are read during the proceedings of the court-martial, would be to say that Congress had made no provision whatever for preserving the personal rights and liberties of the officers and men in the American Navy.’? Smith v. U. S. No. 21,636 Ct. of Cl. decided April 22, 1901. GEORGE F. ORMSBY. Washington, DC. Os INSPECTION OF STEAM VESSELS. By a recent Order-in-Council all vessels enzaged in carry- ing freight in the coasting trade of Canada, but registered elsewhere, shall have the provisions of the Steamboat In- spection Act of Canada applied to them. If such vessels have been inspected by a surveyor of the Imperial Board of Trade, the English Lloyd’s, the Bureau Veritas, (French Lloyds), and the British Corporation for the Survey and Reyistration of Shipping, for the current year, they will not be required to be inspected by the Canadian inspectors for 12 months. SHIPPING AND MARINE JUDICIAL DECISIONS. (COLLABORATED SPECIALLY FOR THE MARINE RECORD. Authority of Secretary.—The secretary of an insurance company cannot bind the company tor a loss which has occurred, but for which the company is not otherwise liable. Arguimbau et al. vs, Germania Ins. Co., 30 So. Rep. (La ) 148. Admiralty Jurisdiction—Nonresident Corporation,—A suit in admiralty, in personam, may be maintained against a cor- poration of another state in any district in which service may be hadupon it. Reilly vs. Philadelphia & R. Ry. Co., 109 Fed. Rep. (U. S.) 349. Collision—Ferryboat and Steamer in Tow—Insufficient Lookout.—A ferryboat crossing North river in the evening held solely in fault for a collision with a steamship coming up the river intow and disabled, where both tug and tow carried appropriate lights, but, through the insufficiency of ‘the ferryboat’s lookout, she failed to see the lights ef the steamship until shortly before collision, andto keep out of way, as she was bound to do, after reccivlng an alarm signal from the tug. The Bergen, 1:8 Fed. Rep. (U. S.) 555. Acceptance of Risk.—The fact that a clerk in the c fice of respondent, whose duty it was as a matter of routine, had received the slip sent by libelant reporting such risk, and had filledin the premium and checked the same for en- try in the books, did not constitute an acceptance of such risk by respondent, where the clerk had no authority to accept or enter risks when any facts were known which rendered them unusual, and where prompt notice was given to libelant of its rejection. Delaware Ins. Co. of Philadel- phia vs. S. S. White Dental Mfg. Co., 109 Fed. Rep. (U.S.) 334- Navigation Laws.—Forfeiture of Foreign Vessel.—Where a British vessel sailed from the island of Margarita to Jamaica, which, by the ordinary laws of navigation is closed against vessels owned by citizens of the United States, and the captain landed there, and brought out passengers, and came to an American port, she is forfeited under the navigation laws providing that any vessel owned by British subjects, coming or arriving from any port or placein a British colony closed against the United States, shall be subject to forfeiture, though the vessel did not enter the port in Jamaica, but stood off and on while the captain was on shore. The Francis & Eliza, 108 Fed. Rep., (U. S.) 541. Collision—Dredge at Anchor—Misleading Light.—A dredge anchored in the East river, while at work, besides her staff light carried another white light considerably: lower down | not required by the rules, and which was mistaken by a tug coming up the river with a towin the evening, thetwo lights being similar to those customarily carried by a tug in motion, but without a tow, the lower being visible only astern: The tug did not discover the mistake until within 300 feet, and her tow came into collision with the dredge, and injured it. Held, that both were in fault, the dredge for carrying a mis- leading light, and the tug in not sooner discovering that the dredge was stationary. The Arthur, 108 Fed. Rep. (U.S.) 557: Towage—Liability of Tug for Injury to Tow—Wrongful Assumption of Authority by Master.—A tug was engaged to perform towage services by the master of a barkentine which lay at the foot of a slip in which a number of other vessels were moored. The owner of the tug refused to take the tow from inside the slip, and the master of the latter agreed to deliver her at its mouth. When the tug arrived, however, the barkentine had not been brought out of theslip, and the master of the tug gratuitously undertook to bring her ont. The undertaking was dangerous, and was not executed with proper care on part of either vessel, in consequence of which the barkentine came in collision with another vessel in the slip, and wasinjured. Held, that after the refusal of the owner of the tug to undertake the service, which was known to the masters of both vessels, the master of the tug had no authority to bind her, or to subject her to liability, by wrongfully undertaking it, and that the manuever was there- fore at the sole risk of the tow. The Andrews J. White, 108 Fed. Rep. (U. S.) 685. Parol Evidence—Varying Written Contract.— Where suit is brought upon a policy of marine insurance which has a printed condition or warranty attached upon the face of it, and it is claimed by the plaintiff that such condition or war- ranty was eliminated when the contract was made, by rea- son of a verbal statement of the agent of the company to the effect that the company would give no trouble about it, but the condition was nevertheless allowed to remain in the con- tract, to the knowledge of the assured, who fully understood its meaning and legitimate effect, testimony going to show such verba] statement should be excluded on the objection that it tends to vary and contradict a written instrument. It is not a question, in such a case, of the authority of the agent, but a question of the right of a party to the contract which has been reduced to writing, without attempting to reform such contract, and without charging error or iraud, to substitute in place thereof a verbal agreement of which the written contract, with some of its previsiors eliminated, is said to bea part. Arguimbau et al. vs. Germania Ins. Co. 30 So. Rep. (La.) 148.