Volume 4 — WAGES OF SEAMEN IN CASE OF WRECK.

Speech in the Senate, on introducing a Bill to secure Wages to Seamen in Case of Wreck, February 12, 1855.

On the 26th of December, 1854, Mr. Sumner introduced the following resolution:—

"Resolved, That the Committee on Commerce be directed to consider if any legislation be needed in order to secure the wages of merchant seamen in the case of wreck."

On the 12th of February, 1855, Mr. Sumner followed up this resolution by introducing a bill, which was read twice and referred to the Committee on Commerce, as follows:—

"A Bill to secure Wages to Seamen in case of Wreck.

"Be it enacted, &c., That, in case of wreck or loss of any ship or vessel of the United States, every seaman belonging thereto shall be entitled to his wages up to the period of such wreck or loss, whether such ship or vessel shall or shall not have previously earned freight, provided such seaman shall have exerted himself to the utmost to save the ship, cargo, and stores; and in any trial of the question of services, the master, although a party to the suit, shall be a competent witness on this question.

"Sec. 2. And be it further enacted, That every stipulation, by which any seaman shall consent to abandon his wages, in case of wreck or loss of the ship or vessel, or in case of the failure to earn freight, shall be wholly void."

On this bill Mr. Sumner spoke as follows.

Mr. President,—In introducing this bill, I desire to make a brief explanation, which shall, at least, be a record of my views with regard to it.

The bill proposes an amelioration of the existing Maritime Law in respect to the wages of merchant seamen, which, so far as England is concerned, has been made already by Act of Parliament, and in our country can be accomplished only by Act of Congress.

By existing Maritime Law, the seaman's wages depend upon a technical rule, which sometimes occasions hardship. Freight is compendiously said to be the mother of wages. In conformity with this fanciful idea, wages are made to depend upon the earning of freight, unless the freight is waived by agreement of the owner, or the voyage or freight is lost by negligence, fraud, or misconduct of the owner or master, or voluntarily abandoned. In case of wreck, the sailor has simply the chance of something under the name of salvage, if the fragments saved happen to be of any value; but if the loss be total, then he is without remedy. In wrecks, which occur with melancholy frequency, on our churlish winter coast, this hardship adds even to the sorrows of disaster. Thus, as in a case which has actually arisen, a crew may commence service at Calcutta, may navigate the Indian Ocean, double the Cape of Good Hope, and bring their ship safely within sight of land, and then, by total loss of ship and cargo, from acknowledged perils of the sea, they may lose everything, even their right to wages, and may find themselves in a strange port, the prey of poverty. Nor can any merit, either throughout the protracted voyage or in the hour of peril and shipwreck, prevent the operation of this technical rule.

There is also another circumstance which constrains the poor sailor. The owner may insure his ship, and also his freight, so that he may lose nothing but the premium he pays; but the sailor is not allowed to protect himself by insurance from loss of wages: his loss is literally total.

Now this technical rule, which fastens the wages of the sailor to the fortunes of the vessel, or, in other words, makes the right dependent on the successful issue of the enterprise for which he is hired, must be considered an offshoot of Mediæval Maritime Law. It is not found in the Roman Law, nor in the maritime legislation of the Eastern Empire, nor in that early compilation which goes under the name of the Rhodian Laws. An eminent American judge, who sheds great light upon maritime jurisprudence,—I refer to the learned and able Judge Ware, of the District Court of Maine,—says, in a judicial opinion, that "it owes its origin to the necessities and peculiar hazards which maritime commerce had to encounter in the Middle Ages, when to the dangers of the winds and waves were added the more formidable perils of piracy and robbery."[170] The rule, having been thus established, was preserved in the maritime jurisprudence of Europe, when the special exigencies in which it had its birth ceased to exist. It has outlived the circumstances and excuses of its origin, and now survives to vex, oppress, and disappoint the most needy, if not the most meritorious, of all concerned in the business of the seas.

This hard rule survives with us, but not everywhere. The greatest commercial nation of the world has led the way in its abolition, and set an example to the United States. The Act of Parliament, of 7th and 8th Victoria, ch. 112, sec. 17 (at the close),—called "The Merchant Seamen's Act,"—provides that

"In all cases of wreck or loss of the ship, every surviving seaman shall be entitled to his wages up to the period of the wreck or loss of the ship, whether such ship shall or shall not have previously earned freight: provided the seaman shall produce a certificate from the master or chief surviving officer of the ship, to the effect that he had exerted himself to the utmost to save the ship, cargo, and stores."

But the sailor was not completely protected by this provision. Experience in England showed that the cunning of agents was able to introduce into the shipping articles an agreement waiving the right to wages in case of loss, which the unthrifty sailor signed, ignorant or careless of its import. To remedy this abuse, a further Act of Parliament, of 13th and 14th Victoria, ch. 93, sec. 53,—known as "The Mercantile Marine Act,"—

"No seaman shall, by reason of any agreement, forfeit his lien upon the ship, or be deprived of any remedy for the recovery of his wages, to which he would otherwise have been entitled; and every stipulation which is inconsistent with any provision of this Act, or of any other Act relating to merchant seamen, and every stipulation by which any seaman consents to abandon his right to wages in the case of the loss of the ship, or to abandon any right which he may have or obtain in the nature of salvage, shall be wholly inoperative."

The bill which I now introduce is grounded on the provisions quoted from the two Acts of the British Parliament, and contains two principles: first, that seamen shall be paid their wages down to the time of the loss of the ship, in case they serve faithfully to the last; and, secondly, that they shall not be permitted to lose their wages through any agreement in the shipping articles.

In some details I have departed from the British Act. It does not seem advisable to make the wages dependent on "a certificate from the master or chief surviving officer of the ship," but to leave the question of services open to proof in any way, according to received rules of evidence. Therefore I have said that the wages shall be paid, "provided the seaman shall have exerted himself to the utmost to save the ship, cargo, and stores." The reasons for this course are clear. Masters are often part owners of American ships, and thus have a personal interest adverse to the sailor. In a mood of selfishness or recklessness, they might refuse the certificate, even though well earned. Now, in constructing a protection to the sailor, it does not seem prudent to make his wages dependent upon any such quarter. Indeed, it is hardly just to take from him the right to establish his claim before the Admiralty Court, merely because an interested master refuses a certificate, when, perhaps, plenary proof might be furnished aliunde. Moreover, if the question were put in control of the master, he might obtain an improper influence over the minds of the crew, inducing them even to sacrifice truth in the event of litigation between owners and underwriters.

There can be no harm in leaving the question of fact to be proved by competent witnesses, like every other question of fact: and the seamen should be competent witnesses for each other. A sagacious court will know how to weigh their testimony, should it come in conflict with that of the officers. It seems proper that the master, too, though a party to the suit,—as in the case of a libel against him in personam, or in a suit at Common Law,—should be competent to testify to the conduct of the libellant or plaintiff,—in other words, whether he has "exerted himself to the utmost"; and I have introduced into the bill a provision accordingly.

The British Act of 7th and 8th Victoria contains another defect. It limits the wages to "every surviving seaman." I can see no good reason why the wife and children of the sailor who has perished in the forlorn hope perhaps, in the cause of all, should be deprived of the humble wages so dearly earned by their natural protector, and thus be compelled to feel a new deprivation added to their bereavement. In the proposed bill there is no such limitation.

Beyond this brief statement, I need not on this occasion add another word. Already Congress has shown a disposition to modify the rigorous Maritime Law in some of its provisions. In 1851 it made a change in the liability of ship-owners as common carriers. But this very liability originated, to a certain extent, in the same principles from which is derived the liability of the seamen, if they fail to bring the ship and cargo to port. Ship-owners and sailors were both treated as insurers. This was in the age of force, before the contract of insurance had spread its broad protection over commerce in every sea. The seaman should share this protection. He should be treated as not necessarily either pirate or coward.

In the discussions of the Senate on the proposed change in the liability of ship-owners, it was effectively urged by my immediate predecessor, a distinguished Senator from Massachusetts, the late Robert Rantoul, Jr., that, if the United States failed to adopt that measure, the other maritime nations would have an advantage in the carrying trade. It is equally true, that, unless we adopt the measure now proposed, Great Britain will have the advantage of us in the rate of seamen's wages; for, under her existing laws, the seaman can afford to work cheaper on board a British ship than under the American flag.

The measure now proposed is of direct importance to the hundred and fifty thousand seamen constituting the mercantile marine of the United States. It also concerns the million of men constituting the mercantile marine of the civilized world, any of whom, in the vicissitudes of the sea, may find themselves in American bottoms. I commend it as a measure of enlightened philanthropy, and also of simple justice.

I ask that the bill, having been read twice, be referred to the Committee on Commerce.

The motion was agreed to.