History of merchant shipping and ancient commerce, Volume 3 (of 4)

There are very easy means of ascertaining the seaworthiness of a ship, when first sent afloat, already at our disposal, as those of my readers, who are not conversant with this subject, will find by referring to the Appendix,[301] where a history of Lloyd’s Register of British and Foreign Shipping will be found. That association has a well-organised and extensive staff of surveyors, through whom, at a very small cost, this fact could be ascertained. My readers will also there see the immense advantage that association has afforded in the improvement of our ships and the power it possesses of rendering still greater public service. But while rivalry amongst associations for classification is unquestionably injurious,[302] it may not be considered advisable that Lloyd’s Register alone should issue certificates of seaworthiness. There are other similar associations whose certificates would answer the object in view equally well, and it is for Government to decide (should an attempt be made to carry this principle into practice) what associations shall be empowered to issue the requisite certificates.

But while I cannot ignore the principle that no unseaworthy vessel should be allowed to leave our ports, I cannot hide from myself the fact that there would be numerous difficulties (but far from insurmountable) in the way of carrying it fully into practice. It might be argued that if the Board of Trade enrolled the associations named, and, more especially, if it took them under its immediate control, they would in a few years, instead of being private Institutions, be mere servants of the Board, and, through the Board, of a sensational House of Commons. But that argument may be met by the Shipowners saying to the Board of Trade, “We do not wish to be under your immediate control at all. Why should we not be allowed to manage our own affairs, as all other branches of the community now do,—subject, in our case, as in that of all others, to such enactments only as may be necessary for the public safety? We ought to know our own business a great deal better than any of your surveyors can teach us; and, if we think proper to form ourselves into an association, or associations, to manage our own affairs, and if we do what the country requires, why should we be interfered with by the Government as to the manner in which we think proper to build, equip, and navigate our ships, any more than other traders in the management of their affairs? Enrol us, if we think proper to associate, as you do joint-stock concerns or other associations; let us form a board with members elected by the persons interested, such, for instance, as the Metropolitan Board of Works, to manage our own concerns, with specific rules for the protection of the public, which, if we violate, you will punish us as you would do any other class of the community.”

Now, arguments such as these are really unanswerable. Statesmen and others, who have to encounter the harassing difficulties of official life, and who know that all executive power must be exercised by a minister, or by individuals responsible to him, and, through him, to the public, might say, “How are we, unless all ships are under our immediate control, to meet questions put to us in the House of Commons, such as, ‘Whether such and such a society licensed by Government had the folly and audacity to allow of spring safety-valves, or of boats not fitted with Clifford’s Patent?’ or how could we justify a licence granted to an association which showed such flagrant disregard of modern inventions and of seamen’s lives?” But the reply to all this is that it is not the province of Government to legislate on such details as these, any more than it would be to dictate by Act of Parliament, how the details of any other branch of trade or manufacture are to be carried out. The duties of Government have long since been defined, and it is because Government, of recent years, has gone far beyond its duties in the case of Shipowners, that Shipowners complain, and justly complain, against Government for a “meddling and muddling” in matters alike beyond its province and its knowledge.

Reverting to the principle which so many persons now say should be enforced by legislative enactment, the seaworthiness of every ship, there would be great difficulty in carrying that out by Government, as seaworthiness is not definable. That is to say, though a vessel may be seaworthy, when launched, (even then it would depend upon the trade in which she was to be employed), she might not be so at the end of her first voyage, or she might be so for one trade in summer, but not in winter, or with one description of cargo, but not with another; or, in fact, with the same cargo if properly stowed,[303] but not otherwise, and so forth. The details are so numerous that it would be impossible to enter upon them within my limits, and for the same reasons, if the principle is to be carried out, it can only be by the association of competent individuals with the necessary staff under their control, possessing that knowledge which long experience alone can give. I mention these points in case the Legislature consider it necessary to enforce this principle; for, if it is to be carried out, it should be in such a manner as will satisfy the public with the least possible interference with the duties of the Shipowner.[304]

In the meantime I must direct the attention of my readers to the unseaworthiness of too many of our seamen, which is of really greater national importance than the unseaworthiness of our ships. However desirable it may be to make certain, if we can, that no unseaworthy ships shall leave our ports, the incompetency, carelessness, and drunkenness of seamen demand much more seriously our attention; and, as all legislative enactments have hitherto failed to raise them to the requisite standard, we ought to direct our attention more earnestly than we have yet done to their education. If education is necessary on shore, it is still more so with seamen, and yet we have done, practically, nothing, as a Nation, to assist them in gaining knowledge, and, especially, that description of knowledge required in their calling. Indeed, we have not seriously attempted any great practical scheme for their education or for the amalgamation of the services of the Royal Navy and those of the mercantile marine, which, while invaluable to us as a nation, would tend so much to elevate the social position of that neglected portion of their class, who, not having the good fortune to be enrolled in the Navy or on the lists of the large Shipowners, must seek their daily bread at sea in any ship where employment can be found.

On the contrary, we have, in some respects, pandered to their pernicious habits. For instance, when a clause in the first Government Bill of last Session (1875) was introduced to render advance notes illegal, the House of Commons rejected it. From my own experience I can have no hesitation in stating that the system of advance notes (I do not include the allotment notes, which are most useful) tends to lower the character of seamen, promotes intemperance and insubordination, and has been the indirect means of far more disasters at sea than either overladen or otherwise unseaworthy vessels.

Besides, any such system is unknown to any other class of the community. What should we think of a mechanic or house servant who could not enter our service unless we paid him a month’s wages in advance? We should have nothing to say to him—1st, because we should not care to trust our money to a person who, on some frivolous excuse, might decline to repay us by his faithful service; and (2ndly) because we should, naturally, consider anyone requiring such an advance an improvident if not a worthless person. These advances must, necessarily, discourage frugality and prudence; while, in the case of seamen, they most assuredly lead, directly, to intemperance and vice. Nor is there any real occasion for making advances in their case. The mechanic or the house servant may have been for some time out of employment, and, as his wages are paid weekly or monthly, he may not have laid by anything; but, in the case of seamen, their wages are paid at the end of the voyage, often in large sums, and by means of savings-banks and money-order offices, specially established for their use, they have every facility afforded them for retaining their earnings. But they do not. Why? Because the Legislature has encouraged their natural and proverbially improvident habits, by acknowledging a system of advance of wages unknown to any other class of workmen, on which advance they depend for an outfit, after too frequently squandering the wages they had earned on a previous voyage.

But I should prefer my readers considering carefully the Report of the Commissioners on this subject instead of my own views, and therefore I do not hesitate to give these conclusions at length,[305] as a large mass of evidence was brought before them. They, as statesmen and philanthropists, had no object in view beyond the national good, and, more especially, the welfare of the seafaring population.

“The evidence before us leads to the conclusion that the system of advance notes is one great obstacle to the amelioration of the condition of merchant seamen. All the witnesses whom we have examined admit that the system is most pernicious, but it is defended on the ground that, without this advance, the sailor could not pay for his lodging on shore, or procure the clothes requisite for him when he joins a ship.

“In practice it seems that the advance note is handed over to the lodging-house keeper, not usually in exchange for cash, but in discharge of debts which the sailor has been induced to incur. The lodging-house keeper charges a heavy discount, and the sailor is frequently brought on board half-clad and intoxicated.

“Shipowners and captains of merchant ships concur in stating that a large portion of the ship’s crew is very often brought or even lifted on board in a condition of helpless drunkenness, that the vessel must often be detained for twenty-four hours in order that the men may be so far recovered as to be able to get her under weigh, and that there is great risk of life and property at the commencement of the voyage from the consequent inefficiency of the seamen.

“The advance note is not payable until some days after the sailing of the ship; but if the ship then puts back or touches at another port, the seaman often takes the opportunity of making some complaint, in order to get free from his engagement, and will even incur a month’s imprisonment with this object, whilst the Shipowner or the person who has cashed the note loses the money which has been paid in advance.

“It is said that if there were no advance note, the crimp in a foreign or colonial port would not have the same inducement to entice the sailor to desert.

“After careful consideration of the numerous evils attending this mode of prepayment, we recommend that advance notes should be declared illegal, that no payment or order for payment made in advance for wages shall be a discharge for the payment of any portion of a seaman’s wages when due, and that no money paid by a Shipowner to or for a seaman shall be debited to the seaman, except wages already earned, the allotment notes, and the cost of such supplies as the seamen may receive after joining the ship.

“There will be some inconvenience felt at first from the abolition of the existing system of advance notes, and there will be perhaps considerable opposition to the change in the ports, and amongst the lodging-house keepers, who profit by these notes. We feel, however, convinced that unless this mischievous mode of payment be discontinued, the seamen will never be raised from their servile dependence on crimps, and taught to rely on their own industry and intelligence.”[306]

But there is a question of quite as great importance to which I shall again have occasion to refer when I review the history of our steam companies, and show the remarkably small amount of loss that some of them have sustained through the system and order prevailing on board their vessels. There we shall see how losses are prevented. In the meantime, we should do well to inquire how losses are encouraged by allowing policies of insurance to be effected for a greater amount than the value of the ship or the cargo she contains.

A contract of marine insurance is in its essence a contract of indemnity, and the spirit of the contract is violated if the assured can make the occurrence of a loss the means of gain. But the law has allowed a very considerable deviation from this fundamental principle. Mr. T. H. Farrer, in his evidence, happily illustrates this in the case of a ship with a chartered freight, bound from London to Calcutta and back.[307] He supposes her to be lost on her outward passage in the Bay of Biscay. Presuming that the owner only insured her prudently and not exorbitantly, he would recover in this case not merely the value of the ship at the commencement of the voyage, but also the freight of the outward and homeward voyages, while he would be exempted from paying the seamen’s wages from the date of the disaster, the expenses necessary to carry his ship to Calcutta, to remain there, and to return on her homeward passage, so that he would be, actually, a very considerable gainer by the loss.[308] Nor is the matter less flagrant in the case of valued policies, when the value of the property is fixed by agreement beforehand between the assured and the underwriter. The effect of this, as the Commissioners justly remark,[309] is, “that unless the policy is altogether void, on account of fraud, or the concealment of a material fact, the assured can, in the case of a total loss, receive the value which has been stated in the policy, however much it may exceed the actual worth of his property.” In confirmation of their opinion, they add “that, in certain decided cases, the Shipowner has been allowed to recover 50 and even 100 per cent. more than the actual value of his vessel.”

Various witnesses recommended that, in case of a total loss, the underwriter should be allowed to question a valued policy, when he considered that the value had been overstated; but many Shipowners and underwriters objected to this proposal, contending that, where a value had been agreed on between the Shipowners and underwriter, subsequent interference would be mischievous or futile, as it might induce Shipowners to insure abroad. It was contended that the value of a ship might depend on a variety of circumstances; for instance, the loss of a steamer to a Shipowner, about to start a new line of steam communication, would be inadequately replaced by the cost of the vessel, though estimated values of this sort are very problematical.

As regards insurance of freight, it was further suggested that the Shipowner should not, in case of total loss, be entitled to recover his freight, without deducting the expense saved to him by reason of the loss of the vessel. On the other hand, it was alleged that the necessity of estimating these uninsured expenses would give rise to doubt, difficulty, and litigation, and that, if the suggestion were adopted, the Shipowner would be to a great extent deprived of the legitimate advantage he now enjoys of being able to obtain with facility an advance on his freight.

After carefully considering all these matters, the Commissioners arrived at the conclusion that they ought not to recommend any alteration of the law with regard to valued policies in cases of total loss, as there were weighty reasons against any interference on the part of the Legislature with contracts made by persons capable of taking care of their own interests, without carefully ascertaining the effect this interference was likely to produce on the entire system of law relating to such contracts. But they were of opinion that the “whole system of insurance law requires complete revision, for not only does it allow the assured, in some cases, to recover more than the amount of the loss actually sustained by him, but it also, on the other hand, deprives him of an indemnity in cases in which he ought to be protected by his insurance.”

The Commissioners, however, with great force, remark, that “a complete and thorough revision of our laws relating to marine insurance is a task of equal importance, difficulty, and delicacy, requiring evidence of an extensive character, and necessitating a very lengthy and careful investigation, and it touches directly on so many subjects unconnected with the security of life at sea, on which it has only an indirect and somewhat remote bearing, that we do not think it properly falls within the scope of our commission. We should also have been reluctant to undertake the complete revision of our system of marine insurance law, because, for many reasons, it appears to us to be important that, before such a task is undertaken, an attempt should be made to induce foreign nations to concur with us in framing and adopting a general code of insurance law. To alter the English law of marine insurance to any considerable extent, might have the effect of throwing the business of insurance into the hands of foreigners, and there is so much insurance of foreign property in England, as well as of English property abroad, that it is most desirable that the law of insurance should, as far as possible, be the same among all commercial nations. An examination of the foreign codes leads us to hope that there would be found no insuperable difficulty in the way of attaining this important object.”

Although the Commissioners do not at present recommend any alteration to be made in the law relating to valued policies, they think that the Shipowner should not be able to recover his insurance, whether under a time or voyage policy, in cases where it is shown that he or his agent had not done everything reasonably within their power to make and maintain the ship in a seaworthy condition, where that unseaworthiness occasioned the loss. They further consider that the Shipowner’s liability for damage to property or person should be unlimited in cases involving the death of the seaman or the damage to person or property. They are also of opinion that the present system by which insurance cases are tried before a judge and jury is altogether unsatisfactory, as a single judge and two assessors would constitute a far better tribunal. In conclusion, they recommend that the Marine Department of the Board should be revised and strengthened by having a legal adviser exclusively attached to it (a recommendation which has been since carried out). “It will,” they remark, “be the duty of the Board of Trade to check the negligent and to punish the culpable shipowner, but it is desirable that these functions should be performed without harassing the great body of Shipowners, who, by their ability and indefatigable energy, have contributed to the prosperity of the empire.”

I have now endeavoured to give as succinct an account of the whole course of the maritime legislation of the British Empire and its effects upon ships, seamen, and commerce as my space will permit, from the earliest period up to the close of the year 1875. Although it is not the province of an historian to enter upon controversial questions, much less to dive into the future, yet history is of little value unless we can gain knowledge from the past which can be made useful hereafter. I may therefore be permitted to close this volume with a few remarks on the subject of further maritime legislation, especially as the subject is one to which an unusual amount of public attention has been devoted during the last two or three years, and as it has been, officially, announced that it will be again dealt with by Government in the ensuing Session of Parliament.

Shipowners say that there is far too much legislation already, and I certainly agree with them; but when they charge the Government as they do, and especially the Board of Trade, or rather Mr. T. H. Farrer, as its permanent Secretary, with forcing all this over-legislation upon them, I must remind them of the facts. What Government did, and did wisely and well, as I have endeavoured to show, was to frame such mercantile marine laws as had become essential after the repeal of the Navigation Laws. The laws then passed have, unquestionably, been of great service, not merely to the nation, but to Shipowners themselves. Having completed all that was considered necessary, Government directed its attention to the amendment, as cases for its necessity arose, and to the consolidation of existing laws; and I can, of my own knowledge, state that Mr. Farrer has, since then, opposed all further legislation which had for its object the interference with the details of a Shipowner’s duty. But the House of Commons would not allow Government to rest with its good work. “Independent members” of that House, actuated by various motives, some of them not very clearly defined, commenced to “amend” (?) in their own way, these laws (see Hansard’s ‘Reports of Parliamentary Proceedings’), by proposing numerous fresh clauses and fresh Bills which, if Government had not resisted, would most likely have doubled the existing number of the mercantile marine statutes. They next commenced to introduce Bills of their own, to teach Shipowners how to construct and equip their vessels. Among the first of these measures was the Act to test chains and anchors, introduced by Sir J. D. H. Elphinstone and the late Mr. John Laird. So far from that Bill receiving the approval of Government, when I moved its rejection,[310] was strongly supported by Mr. Milner Gibson, the then President of the Board of Trade. We were, however, defeated, and the Bill passed and became law.

Encouraged by this success, other independent members followed, and, since then, most of the measures connected with the mercantile marine of this country have been forced upon Government either by Bills introduced by individual members, or by questions asked, or by deputations from interested constituencies, or “philanthropists,” who, however good in their intentions, are, too frequently, mischievously ignorant of the subjects they force upon the attention of Parliament. No one of my readers conversant with these matters can say that the Bills of the last three or four years, except so far as necessary amendments, were Government measures. They were nearly all forced upon the executive, while the only real and valuable measure of Government, the consolidation and codification of existing laws, has been, Session after Session, rejected, or, at least, “shunted” aside by the House of Commons.

For more than two centuries we attempted to regulate our maritime commerce by means of the Navigation Laws and their innumerable additions and amendments, the fallacy of which I have endeavoured in these volumes to expose; yet we are now following the same course our forefathers adopted by attempting, by means of a library of Mercantile Marine Laws, to regulate the details of the business of our Shipowners. Commerce, in all its branches, flourishes most when left alone. Leave our Shipowners alone, except when they do wrong. Leave them to manage their own affairs in such a manner as they consider most conducive to their own interests, and we may rest assured that, if they have a fair and free field and no special favours, they will maintain, against all nations, the maritime supremacy of England.

My advice, therefore, to the House of Commons, if an old member may venture to give it, would be to do nothing next Session in the way of fresh legislation, but to confine itself to necessary amendments, and to the codification of existing laws, so that Shipowners may have one law for their guidance; at present they are bewildered by the numerous fragmentary laws now in force. But, in addition to whatever reorganisation and changes may be found necessary, increased facilities would still seem requisite for the immediate payment of seamen’s wages on their discharge; and, though the mode of inquiry into the causes of the loss of life and property at sea has already been altered, greater rigour is still demanded for such inquiries, and more prompt means of detecting and punishing persons who ignorantly or negligently lose the vessels in which they serve. In cases of wilful loss, which I hope and believe are of rare occurrence, the law cannot be too prompt, too stringent, nor too severe. A man who wilfully loses his ship, I rank without hesitation with the “villain and the murderer.”

Nor should I have much more mercy on the Shipowner who recklessly loses his ship, or who is accessory to her loss; and I should subject to punishment, though in a different and more modified form, any Shipowner who, either ignorantly or negligently, sends his ship to sea in an unseaworthy state. In these matters, the law is still open to improvement, both as regards greater facilities for the discovery of crime and its prompt punishment, arising, as this does, in no small degree, from its too complex character.

Although the Shipowner is now made liable for criminal neglect, and cannot, by contract, relieve himself from this liability, such neglect is difficult of proof, and a jury deciding against a Shipowner on a question of damages, may, often, hesitate to make him criminally responsible. If it were possible to enforce this liability in all cases where guilty; if every Shipowner were made to feel that the proper construction, equipment, loading, manning, and navigation of his ship were matters to which it was his duty to attend, and if these duties were enforced, it would produce much more salutary effects in the way of saving life and property at sea than any Government surveys with a legion of inspectors at their back: each one of these relieves the Shipowner from a duty which belongs to him alone, and relieves, or, at the least, might relieve, him from a part of his responsibility; for if, as in the case of compulsory pilotage, a Shipowner is relieved from responsibility in case of accident, he cannot, in common justice, be held criminally liable when he has acted in conformity with such laws as have been passed for his guidance and control.

Whether it would be possible, as has been recommended, to establish by positive enactment an absolute and indefeasible obligation on the part of every Shipowner to his shippers, passengers, and underwriters, that he and the agents to whom he trusts his ships, shall do all in their power to make and keep his ship seaworthy, is a problem I am not, at present, prepared to solve; moreover, it raises numerous questions of great difficulty and delicacy.

Some amendments may be, also, required in the tonnage and measurement law, which, though, as I have already explained, now a vast improvement on any previous law, still presents features of hardship alike on Shipowners and seamen, as, in the case of the latter, frequent instances occur where the law is evaded by the stowage of cargo or stores in spaces appointed by the present Act for the accommodation of the crew.

Such are the leading measures which may still require the attention of the Legislature; but, before closing my remarks, I desire my readers to recollect the existence of a Merchant Shipping Code, which has not yet become law. It embraces all the laws relating to Merchant Shipping, and if the First Minister would take up this Bill and amend it in detail, he would not merely confer a boon on the largest shipping community the world has ever seen, but one by which his name would be long remembered.

If the Legislature did nothing else during the ensuing Session, it would be a Session well spent: ten clear sittings[311] would, however, suffice, if there was a determination on both sides of the House to allow no party spirit to interfere. Nor should any such feeling be displayed, for the questions now to be considered are almost wholly of an executive and not of a political character; while all the materials are now ready, the lengthened inquiries and discussions to which almost every point except insurance (and on this there must be further inquiry before there is any legislation) has been already subjected, render further discussion, in a great measure, unnecessary.

I have endeavoured to show how much progress has been made during the last quarter of a century—a progress eminently due to the repeal of our Navigation Laws and to many of the earlier measures of the Board of Trade, in confirmation of which I may point to the magnificent ships now produced, to the enormous extent of our mercantile fleets,[312] as compared with those of all other nations, and to the superiority of our officers to what they were before the repeal of the Navigation Laws.

There is, nevertheless, a wide and noble field in which the statesman might employ his power and genius to great advantage, and earn for himself an imperishable name. The means are now in a great measure at his disposal. But he must decide between two principles. He must not, on the one hand, give way to the question of sentiment or to the popular cry that merchant ships and their cargoes shall be under Government survey, and, at the same time, hold Shipowners responsible for acts which legislation has placed beyond their control. If he adopts the former course, he must double or treble the existing staff of officials; but I venture to warn him that, in so doing, he will place a canker-worm at the root of our maritime greatness, which will as surely destroy the mighty fabric we have raised by individual genius, energy, and skill, as ever did the “dry rot” in our wooden ships of war and commerce.

Seeing what our Shipowners have already accomplished, he might to advantage afford them facilities for self-government. The means, as I have shown, are already at his disposal. We have Lloyd’s Register, with its large staff of competent surveyors ready to aid, at our disposal, as also a similar association in Liverpool. We have mercantile marine boards, elected by popular constituencies, at all the leading seaports in the kingdom, under whose supervision the shipping officers are now placed, as well as the examination of all masters and mates. Leave them as they are; but, as I understand that these boards are not overburdened by the duties now devolving on them, could not their duties in relation to the crews be extended and some arrangement be made whereby these different institutions, formed into one, two, or more central and district boards, might perform all the work of detail now required by Parliament? By some such amalgamation everything the country requires could be done more economically and efficiently than at present.

Lloyd’s Registry now tests all anchors and chains as required by Parliament, without any disturbance of their functions or the work for which they were originally constituted, the voluntary classification of ships. Why should we not place in their hands such duties connected with the ship herself as the regulation of load-lines, certification of seaworthiness, if found expedient, and the supervision of all matters of detail which Parliament may consider necessary, in the construction, equipment, loading, and navigation of our ships? All these matters would be much better done by a popularly elected board chosen from merchant Shipowners and underwriters than by any Department of the Government. In their hands might be safely placed the appointment of surveyors: one Department of this new Board attending to the hull of the ship, the other to her navigation, as at present; all these matters being subject, of course, to such regulations as Parliament might consider it expedient to impose, and represented in Parliament by the President of the Board of Trade, or, in lieu thereof, by a Secretary of State for Commerce, should that be desirable.

I merely throw out these remarks for consideration, being aware that many obstacles, though few real difficulties, would require to be overcome in carrying out some such re-organisation as I venture to suggest. But whatever changes Ministers may consider most expedient to adopt, they must not lightly tamper with the merchant fleets which the skill and genius of our people have created, or with the position they have achieved since relieved from those legislative enactments, by which they were bound for more than two centuries. These fleets are now the largest, and unquestionably the finest, in the world, and instead of foreigners overstocking our own ports as was prophesied, we now conduct the greater portion of the maritime commerce of foreign nations.[313] It is, therefore, no idle boast to say, that while the sun never sets on the dominions of our Queen, there is no ocean, no sea, and, I might add, were it not for the exclusive policy of the United States and of France, with a few other insignificant exceptions, no lake, no river, where the British flag is not unfurled, and where it does not shed its civilising and beneficial influence, over many peoples of varied tongues, who might otherwise still be living in darkness, if not in barbarism.

It behoves, therefore, our Statesmen to take care how they deal with this great interest—made great by the freedom of our laws and by the energy of our people; and, whatever further legislation may be necessary, it is seriously to be hoped that Government will confine its measures to their legitimate object; viz. the clear definition of the legal duties and responsibilities of Shipowners, the maintenance of lighthouses, buoys and beacons on our coasts, the general regulations necessary for the proper conduct of maritime commerce, the investigation into the true cause of all accidents at sea, and the prompt punishment of all persons who wrongfully and wilfully violate the law.