Are ships' captains allowed to marry people at sea?
This question is for my friend Irene. Were ships' captains ever allowed to marry people while cruising the deep blue? If not, can you tell me where this rumor emerged?
This being a free country, Magenta, ships' captains are allowed to marry anybody they want to. Performing marriages, however, is a different story. So far as I can tell, sea captains in the United States cannot now and have not ever been able to perform marriages at sea or anywhere else, unless they also happen to be recognized ministers or JPs or something. The same goes for sea captains in Britain and the Soviet Union.
However — and this is the interesting part — this myth is so widely believed, not only among the general public but among sailors, that both the United States Navy and the British Mercantile Marine Office have taken the extraordinary step of explicitly forbidding captains to do free-lance weddings. Let me quote from the Code of Federal Regulations, Title 32, Subtitle A, Chapter VI, Subchapter A, Part 700, Subpart G, Rule 716, also known as 32 CFR 700.716):
"The commanding officer shall not perform a marriage ceremony on board his ship or aircraft. He shall not permit a marriage ceremony to be performed on board when the ship or aircraft is outside the territory of the United States, except: (a) In accordance with local laws … and (b) In the presence of a diplomatic or consular official of the United States."
Similarly, the official logbook supplied to ships' captains by the British Mercantile Marine Office warns that shipboard marriages performed by the captain are not legal. If the ship is registered in New York state, the captain can be fined or imprisoned.
So where did the idea arise? We can only guess. Sailors have it drummed into them that the captain (more properly known as the master) is the supreme authority on the ship, and one might easily jump to the conclusion that said authority extends to civil matters. In some jurisdictions, in fact, it does. The Soviet Union allows its masters to attest wills and draw up documents concerning births and deaths (although not to perform marriages). Furthermore, many merchant services, including those in Britain and the U.S., require masters to note marriages, births, deaths, collisions, etc., in the ship's log. The master thus becomes the registrar of any marriages.
Finally, we know that in days of yore ships might be at sea or at least beyond the reach of civilization for two years or more. It thus seems reasonable to suppose that a master would be empowered to officiate at a marriage rather than have some local heathen do it.
Nonetheless — and I've checked out seaman's guides going back to 1850 — it does not appear that this has ever been the case. Another myth cruelly shattered. If anything further turns up, however, I'll let you know.
Something further turns up
Contrary to your column, there is authority that a marriage performed by a ship's captain on the high seas is valid. In Fisher vs. Fisher in 1929 the New York Court of Appeals (the state's highest court) held that "in the absence of any such law which condemned the marriage …" such a marriage was valid. The court also reasoned that Congress "had recognized that on board a ship at sea … there is … a law of marriage," because Congress had enacted a statute requiring a vessel's master to keep a log book recording every marriage taking place on board. (There is still such a statute.) Fisher is still reported as good law in Corpus Juris Secundum, although other authorities are to the contrary.
Oh, God, not Fisher vs. Fisher. The case is one of those freaks that crop up frequently in marriage law and make it impossible to offer any sweeping statement, about ships' captains or anything else, without having it studded through with asterisks and qualifications.
Let's start with the one rock of certainty in this discussion: No state has enacted a statute explicitly authorizing ships' captains to solemnize marriages. However, in ruling on the validity of such marriages, the courts have waffled. On the one hand there is a longstanding legal presumption that if two people think they got married, they did get married, even if the proceeding by which this was accomplished was suspect. On the other hand, judges have also felt, jeez, we can't let just anybody solemnize marriages, we gotta have rules.
This ambivalence has resulted in decisions on both sides of the fence. In Fisher vs. Fisher the court ruled a marriage by a ship's captain valid; in an 1898 case in California, Norman vs. Norman, the court ruled the opposite. It's important to note that in Fisher the court did not specifically single out ships' captains (as opposed to say, mailmen) as having the power to perform marriages; rather it ruled that, absent a statute to the contrary, and subject to certain other conditions, an exchange of vows between consenting parties constituted a valid marriage — as I read it, whether there was an officiant or not. In other words, marriage by ship's captain, or by anybody other than a recognized minister, JP, etc., was a type of common-law marriage.
There are still some states that recognize common-law marriage. Typically all that's necessary is that the parties (1) be legally free to marry (e.g., no undissolved prior marriages); (2) properly consent; (3) "cohabit" (do it); (4) live together; and (5) let the neighbors think they're married. (Contrary to common belief, it is not necessary that the couple live together for seven years.)
What's not required are the services of a minister. So while you're correct in saying "there is authority that a marriage performed by a ship's captain on the high seas is valid," captains don't have any special powers in this regard. A close reading of Fisher suggests the ceremony might as well have been performed by a waiter.
Granted the issue isn't as clear as it might be. The family-law experts I spoke with scoffed at the idea that courts in the 1990s would recognize marriages by ships' captains on a non-common-law basis. (That is, unless the captain had been granted the right under the laws of a foreign country, in which case recognition would be granted as a matter of course.) But you never know. There has been at least one case in which the court recognized a marriage performed by a "minister" who had gotten his credentials by mail order from the Universal Life Church. By comparison to such patent flakery, ships' captains seem like the soul of rectitude. If only somebody would submit themselves for an unambiguous test case (you single, John?), we could get this cleared up once and for all.
The last word
Regarding ship captains and marriages, you should let readers know about the best possible resolution. It's a plaque I've seen on at least half a dozen vessels (mostly sailboats, for obvious reasons to anyone who already understands). It says, "Any marriages performed by the captain of this ship are valid for the duration of the voyage only."