THE SEAMAN'S FRIEND; CONTAINING A TREATISE ON PRACTICAL SEAMANSHIP, WITH PLATES, A DICTIONARY OF SEA TERMS; CUSTOMS AND USAGES OF THE MERCHANT SERVICE; LAWS RELATING TO THE PRACTICAL DUTIES OF MASTER AND MARINERS. (continued 6)

Pilots.—When a pilot, who is regularly appointed, is on board, he has the absolute control of the navigation of the vessel.[126] He is master for the time being, and is alone answerable for any damage occasioned by his own negligence or default.[127]

A pilot may sue in admiralty for his wages.[128]

A pilot cannot claim salvage for any acts done within the limits of his duty, however useful and meritorious they may have been.[129] If towing is necessary, pilots are bound to perform it, having a claim for compensation for damages done to their boats, or for extra labor.[130] If extraordinary pilot service is performed, additional pilotage is the proper reward, and not salvage.[131] If, however, the acts done by the pilot are clearly without and beyond his duty as pilot, he may claim salvage.[132]

CHAPTER VII.

SEAMEN. SHIPPING CONTRACT.

Shipping contract—how formed—how signed. Erasures and interlineations. Unusual stipulations.

By the law of the United States, in all foreign voyages, and in all coasting voyages to other than an adjoining state, there must be an agreement in writing, or in print, with every seaman on board the ship, (excepting only apprentices and servants of the master or owner,) declaring the voyage, and term or terms of time, for which such seaman is hired.[133] This contract is called the shipping-articles, and all the crew, including the master and officers, usually sign the same paper; it not being requisite that there should be a separate paper for each man. If there is not such a contract signed, each seaman could, by the old law, recover the highest rate of wages that had been given on similar voyages, at the port where he shipped, within three months next before the time of shipment.[134] By the law of 1840, he may, in such case, leave the vessel at any time, and demand the highest rate of wages given to any seaman during the voyage, or the rate agreed upon at the time of his shipment.[135] A seaman not signing the articles, is not bound by any of the regulations, nor subject to the penalties of the statutes;[136] but he is, notwithstanding, bound by the rules and liable to the forfeitures imposed by the general maritime law.[137]

These shipping-articles are legal evidence, and bind all parties whose names are annexed to them, both as to wages, the nature and length of the voyage, and the duties to be performed.[138] Accordingly, seamen have certain rights secured to them with reference to these papers. In the first place, the master must obtain a copy of the articles, certified to by the collector of the port from which the vessel sails, to take with him upon the voyage. This must be a fair and true copy, without erasures or interlineations. If there are any such erasures or interlineations, they will be presumed to be fraudulent, and will be set aside, unless they are satisfactorily explained in a manner consistent with innocent purposes, and with the provisions of laws which guard the rights of mariners. These articles must be produced by the master before any consul or commercial agent to whom a seaman may have submitted a complaint.[139]

Every unusual clause introduced into the shipping-articles, or anything which tends to deprive a seaman of what he would be entitled to by the general law, will be suspiciously regarded by the courts; and if there is reason to suppose that any advantage has been taken of him, or if the contract bears unequally upon him, it will be set aside. In order to sustain such a clause, the master or owner must show two things: first, that the seaman's attention was directed toward it, and its operation and effect explained to him; and, secondly, that he received some additional compensation or privilege in consideration of the clause. Unless the court is satisfied upon these two points, an unusual stipulation unfavorable to a seaman will be set aside.[140] For instance, seamen are entitled to have a medicine-chest on board, and in certain cases to be cured at the ship's expense; and the court set aside a clause in the shipping-articles in which it was stipulated that the seamen should bear all the expense, even though there were no medicine-chest on board.[141] Another clause was set aside, in which the voyage was described as from Baltimore to St. Domingo and elsewhere, on the ground that seamen are entitled to have their voyage accurately described.[142]

Some clauses which are not such as to be set aside, will yet be construed in favor of seamen, if their interpretation is at all doubtful.[143] A clause providing that no wages should be paid if the vessel should be taken or lost, or detained more than thirty days, was set aside, seamen being entitled to wages up to the last port of delivery.[144] If the amount of wages merely be omitted in the articles, there seems to be some doubt as to the introduction of other evidence to show the rate agreed upon, and as to the seaman's being entitled by statute to the highest rate of wages current.[145] If a seaman ships for a general coasting and trading voyage to different ports in the United States, and the articles provide for no time or place at which the voyage shall end, the seaman may leave at any time, provided he does not do so under circumstances peculiarly inconvenient to the other party.[146]

If, however, the voyage is accurately described, and the wages specified, the seaman cannot be admitted to show that his contract was different from that contained in the articles.[147]

It is no violation of the contract if the vessel departs from the voyage described, by accident, necessity, or superior force.[148]

CHAPTER VIII.

SEAMEN—CONTINUED.

Rendering on board. Refusal to proceed. Desertion or absence during the voyage. Discharge.

Rendering on board.—If, after having signed the articles, and after a time has been appointed for the seaman to render himself on board, he neglects to appear, and an entry to that effect is made in the log-book, he forfeits one day's pay for every hour of absence; and if the ship is obliged to proceed without him, he forfeits a sum equal to double his advance.[149] These forfeitures apply to the commencement of the voyage, and cannot be exacted unless a memorandum is made on the articles, and an entry in full in the log-book. A justice of the peace may, upon complaint of the master, issue a warrant to apprehend a deserting seaman, and commit him to jail until the vessel is ready to proceed upon her voyage. The master must, however, first show that the contract has been signed, and that the seaman departed without leave, and in violation of it.[150]

Refusal to proceed.—If, after the voyage has begun, and before the vessel has left the land, the first officer and a majority of the crew shall agree that the vessel is unfit to proceed on the voyage, either from fault or deficiency in hull, spars, rigging, outfits, provisions, or crew, they may require the master to make the nearest or most convenient port, and have the matter inquired into by the district judge, or two justices of the peace, taking two or more of the complainants before the judge. Thereupon the judge orders a survey, and decides whether the vessel is to proceed, or stop and be repaired and supplied; and both master and crew are bound by this decision. If the seamen and mate shall have made this complaint without reason, and from improper motives, they are liable to be charged with the expenses attending it.[151]

If, when the vessel is in a foreign port, the first or any other officer and a majority of the crew shall make complaint, in writing, to the consul, that the ship is unfit to proceed to sea, for any of the above reasons, the consul shall order an examination, in the same manner; and the decision of the consul shall bind all parties. If the consul shall decide that the vessel was sent to sea in an unsuitable condition, by neglect or design, the crew shall be entitled to their discharge and three months' additional pay; but not if it was done by accident or innocent mistake.[152]

It is no justification for refusing to do duty and proceed upon the voyage, that a new master has been substituted in place of the one under whom the seaman originally shipped;[153] and if a blank is left for the name of the master, the seaman is supposed to ship under any who may be appointed.[154] The same rule applies to the substitution or appointment of any other officer of the ship during the voyage.

Desertion or Absence during the Voyage.—If, during the voyage, the seaman absents himself without leave, for less than forty-eight hours, and an entry thereof is made in full in the log-book, he forfeits three days' pay for each day's absence. But if the absence exceeds forty-eight hours, he forfeits all his wages then due, and all his goods and chattels on board the vessel at the time, and is liable to the owner in damages for the expense of hiring another seaman.[155] If he deserts within the limits of the United States, he is liable to be arrested and committed to jail, until the vessel sails.[156] If he deserts or absents himself in a foreign port, the consul is empowered to make use of the authorities of the place to reclaim him. If, however, the consul is satisfied that the desertion was caused by unusual or cruel treatment, the seaman may be discharged, and shall receive three months' additional wages.[157] It is not a desertion for a seaman to leave his vessel for the purpose of procuring necessary food, which has been refused on board; nor is a seaman liable if the conduct of the master has been such as to make it dangerous for him to remain on board,[158] or if the shipping-articles have been fraudulently altered.[159] Even in a clear case of desertion, if the party repents, and seeks to return to his duty within a reasonable time, he is entitled to be received on board again, unless his previous conduct had been such as would justify his discharge.[160]

As to the effect of desertion upon wages, and what is desertion in such cases, see the subject, "Wages affected by Desertion," Chapter XI.

Discharge.—By referring to Chapter IV., "Master's Relation to Crew," the seaman will find that, though the master has power to discharge a seaman for gross and repeated misconduct, yet that this right is closely watched, and any abuse of it is severely punished. He will also find there a statement of his own rights and privileges, with reference to a discharge. It has been seen that he may demand his discharge of the consul, if the vessel is not fit to proceed, and is not repaired, or if he has been cruelly and unjustifiably treated.[161]

If a vessel has been so much injured that it is doubtful whether she can be repaired, or the repairs cannot be made for a long time, during which it would be a great expense to the owners to support the seamen in a foreign country, it is held that the crew may be discharged, upon the owners' paying their passage home, and their wages up to the time of their arrival at the place of shipment.[162]

As to discharge at the end of the voyage, see "Wages affected by Desertion," Chapter XI.

CHAPTER IX.

SEAMEN—CONTINUED.

Provisions. Sickness. Medicine-chest. Hospital money. Relief in foreign ports. Protection.

Provisions.—For the benefit of seamen it has been enacted that every vessel bound on a voyage across the Atlantic, shall have on board, well secured under deck, at least sixty gallons of water, one hundred pounds of wholesome ship bread, and one hundred pounds of salted flesh meat, over and above the stores of master or passengers, and the live stock. And if the crew of any vessel not so provided shall be put upon short allowance of water, flesh, or bread, such seaman shall recover from the master double wages for every day he was so allowanced.[163] The same rule applies to other voyages than those across the Atlantic, and the amount of provisions stowed below must be in proportion to the length of the voyage, compared with one across the Atlantic.[164] It also applies to seamen shipped in foreign ports, as well as to those shipped in the United States.[165] It has been thought that if the articles enumerated cannot be procured, the master may substitute other wholesome provisions; but it is doubtful whether even this will free him from the penalty; at least it will not unless he can show that it was impossible to procure them at the last port of departure.[166]

Besides this special enactment, a seaman may always recover damages of a master who unnecessarily and wantonly deprives him of sufficient food and nourishment.[167] If, however, the short allowance is caused by inevitable accident, without any fault of the master or owner, or is a matter of fair discretion in a case of common danger, the master is not liable. Another law of the United States provides that if any master or other officer shall wilfully and without justifiable cause withhold suitable food and nourishment from a seaman, he shall be fined not exceeding $1000 and imprisoned not exceeding five years.[168] The master may at any time, at his discretion, put the crew upon an allowance of water and eatables; but if it is a short allowance, he must be able to give a justifying reason.

Sickness. Medicine-chest.—Every vessel of one hundred and fifty tons or upwards, navigated by ten or more persons in all, and bound on a voyage beyond the United States, and every vessel of seventy-five tons or upwards, navigated by six or more persons in the whole, and bound from the United States to any port in the West Indies, is required to have a chest of medicines, put up by an apothecary of known reputation, and accompanied by directions for administering the same. The chest must also be examined at least once a year, and supplied with fresh medicines.[169]

In case of dispute, the owner must prove the sufficiency of the medicine-chest. It does not lie with the seaman to prove its insufficiency.[170]

If a vessel has a suitable medicine-chest on board, it would seem that the ship is not to be charged with the medicines and medical advice which a seaman may need. But the ship is still liable for the expenses of his nursing, care, diet, and lodging.[171] Accordingly, if a seaman is put on shore at a hospital or elsewhere, for his cure, the ship is chargeable with so much of the expense as is incurred for nursing, care, diet, and lodging; and unless the owner can specify the items of the charge, and show how much was for medical advice, and how much for other expenses, he must pay the whole.[172] The seaman is to be cured at the expense of the ship, of a sickness or injury sustained in the ship's service;[173] but if he contracts a disease by his own fault or vices, the ship is not chargeable.[174] A sick seaman is entitled to proper nursing, lodging, and diet. If these cannot be had, or are not furnished on board the vessel, he is entitled to be taken on shore to a hospital, or to some place where these can be obtained. It is often attempted to be shown that the seaman was put on shore at his own request. This is no defence. He is entitled to be put on shore if his disease requires it; and it is seldom that proper care can be taken of a seaman on board ship.[175]

If a seaman requires further medicines and medical advice than the chest and directions can give, and is not sent ashore, it would seem that the ship ought to bear the expense; but this point has never been decided.[176] If the medicine-chest can furnish all he needs, the ship is exempted.[177]

Hospital Money.—Every seaman must pay twenty cents a month, out of his wages, for hospital money. This goes to the establishment and support of hospitals for sick and disabled seamen.[178]

Relief in Foreign Ports.—If a vessel is sold in a foreign port and her crew discharged, or if a seaman is discharged with his own consent, he can receive two months' extra wages of the consul, who must obtain it of the master.[179] This applies only to the voluntary sale of the vessel, and not when the sale is rendered necessary by shipwreck. If, however, after the disaster the vessel might have been repaired at a reasonable expense and in a reasonable time, but the owner chooses to sell, the two months' pay is due. To escape the payment, the owner must show that he was obliged to sell.[180]

It is also the duty of the consuls to provide subsistence and a passage to the United States for any American seamen found destitute within their districts. The seamen must, if able, do duty on board the vessel in which they are sent home, according to their several abilities.[181]

The crew of every vessel shall have the fullest liberty to lay their complaints before the consul or commercial agent in any foreign port, and shall in no respect be restrained or hindered therein by the master or any officer, unless sufficient and valid objection exist against their landing. In which case, if any seaman desire to see the consul, the master must inform the consul of it forthwith; stating, in writing, the reason why the seaman is not permitted to land, and that the consul is desired to come on board. Whereupon the consul must proceed on board and inquire into the causes of complaint.[182]

Protection.—Every American seaman, upon applying to the collector of the port from which he departs, and producing proof of his citizenship, is entitled to a letter of protection. The collector may charge for this twenty-five cents.[183]

CHAPTER X.

SEAMEN—CONTINUED.

Punishment. Revolt and mutiny. Embezzlement. Piracy.

Punishment.—As to the right of the master to punish a seaman by corporal chastisement, imprisonment on shore, confinement on board, &c., and the extent of that right, and the master's liability for exceeding it,—the seaman is referred to Chapter IV., "The Master's relation to the Crew," title, "Imprisonment" and "Punishment." He will there see that the master possesses this right to a limited extent, and that he is strictly answerable for the abuse of it. Disobedience of orders, combinations to refuse duty, dishonest conduct, personal insolence, and habitual negligence and backwardness, are all causes which justify punishment in a greater or less degree.

The contract which a seaman makes with the master, is not like that of a man who engages in any service on shore. It is somewhat military in its nature.[184] The master has great responsibilities resting upon him, and is entitled to instant and implicit obedience. To ensure this, regular and somewhat strict discipline must be preserved. The master, also, cannot obtain assistance when at sea, as any one can who is in authority upon land. He must depend upon the habits of faithful and respectful discharge of duty which his crew have acquired, and if this fails, he may resort to force. He is answerable for the safety of the ship, and for the safe keeping and delivery of valuable cargoes, and in almost all cases he is the first person to whom the owner of the vessel and cargo will look for indemnity. Considering this, the seamen will feel that it is not unreasonable that the master should have power to protect himself and all for whom he acts, even by force if necessary.[185] A good seaman, who is able and willing to do his duty faithfully and at all times, and treats his officers respectfully, will seldom be abused; and if he is, the master is liable to him personally in damages, and is also subject to be indicted by the government and tried as a criminal. A seaman should be warned against taking the law into his own hands. If the treatment he receives is unjustifiable, he should still submit to it, if possible, until the voyage is up, or until he arrives at some port where he can make complaint. If he is conscious that he is not to blame, and an assault is made upon him unjustifiably and with dangerous severity, he may defend himself; but he should not attempt to punish the offender, or to inflict anything in the way of retaliation.[186]

In Chapter VI., title, "Mates," the reader will see how far any inferior officer of a vessel may use force with a seaman.

Revolt and Mutiny.—If any one or more of the crew of an American vessel shall by fraud or force, or by threats or intimidations, take the command of the vessel from the master or other commanding officer, or resist or prevent him in the free and lawful exercise of his authority, or transfer the command to any other person not lawfully entitled to it; every person so offending, and his aiders and abbettors, shall be deemed guilty of a revolt or mutiny and felony; and shall be punished by fine not exceeding $2000, and by imprisonment and confinement to hard labor not exceeding ten years, according to the nature and aggravation of the offence.[187] And if any seaman shall endeavor to commit a revolt or mutiny, or shall combine with others on board to make a revolt or mutiny, or shall solicit or incite any of the crew to disobey or resist the lawful orders of the master or other officer, or to refuse or neglect their proper duty on board, or shall assemble with others in a riotous or mutinous manner, or shall unlawfully confine the master or other commanding officer,—every person committing any one or more of these offences shall be imprisoned not exceeding five years, or fined not exceeding $1000, or both, according to the nature and aggravation of the offence.[188]

It will be seen that the first of these laws applies only to cases where seamen actually throw off all authority, deprive the master of his command, and assume the control themselves, which is to make a revolt. The last is designed to punish endeavors and combinations to make a revolt, which are not fully carried out.

Every little instance of disobedience, or insolent conduct, or even force used against the master or other officer, will not be held a revolt or an endeavor to make a revolt. There must be something showing an intention to subvert the lawful authority of the master.[189] It does not excuse seamen, however, from this offence, that they confined their refusal to one particular portion of their duty. If that duty was lawfully required of them, it is equally a subversion of authority as if they had refused all duty.[190]

If the crew interfere by force or threats to prevent the infliction of punishment for a gross offence, it is an endeavor to commit a revolt.[191]

To constitute the offence of confining the master, it is not necessary that he should be forcibly secured in any particular place, or even that his body should be seized and held; any act which deprives him of his personal liberty in going about the ship, or prevents his doing his duty freely, (if done with that intention,[192]) is a confinement.[193] So is a threat of immediate bodily injury, if made in such a manner as would reasonably intimidate a man of ordinary firmness.[194]

In all these cases of revolt, mutiny, endeavors to commit the same, and confinement of the master, it is to be remembered that the acts are excusable if done from a sufficient justifying cause. The master may so conduct himself as to justify the officers and crew in placing restraints upon him, to prevent his committing acts which might endanger the lives of all the persons on board. But an excuse of this kind is received with great caution, and the crew should be well assured of the necessity of such a step, before taking it, since they run a great risk in so interfering.[195]

Embezzlement.—If any of the crew steal, or appropriate, or by gross negligence suffer to be stolen, any part of the cargo, or anything belonging to the ship, they are responsible for the value of everything stolen or appropriated.

It is necessary that the fraud, connivance, or negligence of a seaman should be proved against him, before he can be charged with anything lost or stolen; and in no case is an innocent man bound to contribute towards a loss occasioned by the misconduct of another. If, however, it is clearly proved that the whole crew were concerned, but one offender is not known more than another, and the circumstances are such as to affect all the crew, each man is to contribute to the loss, unless he clears himself from the suspicion.[196]

Piracy.—If the master or crew of a vessel shall, upon the high seas, seize upon or rob the master or crew of another vessel; or if they shall run away with the vessel committed to their charge, or any goods to the amount of $50; or voluntarily yield them up to pirates; or if the crew shall prevent the master by violence from fighting in the defence of vessel or property; such conduct is piracy, and punishable with death.[197]

It is also piracy, and punishable with death, to be engaged in any foreign country in kidnapping any negro or mulatto, or in decoying or receiving them on board a vessel with the intention of making them slaves.[198]

CHAPTER XI.

Seamen's Wages.

Affected by desertion or absence;—by misconduct;—by imprisonment;—by capture;—by loss of vessel and interruption of voyage. Wages on an illegal voyage. Wages affected by death or disability.

Wages affected by Desertion or Absence.—It has been seen that if a seaman, at the commencement of the voyage, neglects to render himself on board at the time appointed, and an entry thereof is made in the log-book, he forfeits one day's pay for every hour's absence; and if he shall wholly absent himself, so that the ship is obliged to go to sea without him, he forfeits his advance and as much more.[199] And if at any time during the voyage he absents himself without leave, and returns within forty-eight hours, he forfeits three days' pay for every day's absence; but if he is absent more than forty-eight hours, he forfeits all the wages then due him, and all his clothes and goods on board at the time.[200] These forfeitures cannot be exacted against the seaman unless there is an entry made in the log-book on the same day that he left, specifying the name of the seaman, and that he was absent without leave.[201]

But independently of these regulations, and without the necessity of any entry, &c., a seaman forfeits his wages for deserting the vessel, or absenting himself wrongfully and without leave, by the general law of all commercial nations.[202] If, however, the seaman is absent without fault of his own,[203] or if he is obliged to desert by reason of cruel treatment, want of food, or the like, he does not forfeit his wages. But in such case, the seaman must prove that the treatment was such that he could not remain without imminent danger to his life, limbs, or health.[204] If the voyage for which he shipped has been abandoned, or there has been a gross and unnecessary deviation, he does not forfeit his wages for leaving the vessel; but then the change of voyage must have been actually determined upon and known to the seaman.[205]

Even if the seaman shall have clearly deserted without justifiable cause, or absented himself more than forty-eight hours, yet, if he shall offer to return and do his duty, the master must receive him, unless his previous conduct would justify a discharge.[206] And if he is so received back, and does his duty faithfully for the rest of the voyage, the forfeiture is considered as remitted, and he is entitled to his wages for the whole voyage.[207] If, however, the owner has suffered any special damage from the wrongful absence of the seaman, as, if the vessel has been detained, or a man hired in his place, all such necessary expenses may be deducted from the wages.[208]

A mere leaving of the vessel, though a wrongful absence, is not a desertion, unless it is done with the intention to desert.[209] A seaman is bound to load and unload cargo in the course of the voyage if required of him, and a refusal to do so is a refusal of duty.[210] If the voyage is at an end, according to the articles, and the vessel is safely moored at the port of discharge, the seamen are still bound to discharge the cargo if it is required of them. If they do not, their refusal or neglect does not, however, work a forfeiture of all their wages, but only makes them liable to a deduction, as compensation to the owner for any damage he may have suffered.[211] The custom in almost all sea-ports of the United States is, to discharge the crew, and not to require them to unload cargo at the end of the voyage. This custom is so strong that if the owner or master wishes to retain the crew, he must give them notice to that effect. Unless the crew are distinctly told that they must remain and discharge cargo, they may leave the vessel as soon as she is safely moored, or made fast. If they are required to remain and discharge cargo, they make themselves liable to a deduction from their wages for a neglect or refusal, but do not forfeit them.[212] The seaman must bear in mind, however, that this is only when the voyage is at an end, and the ship is at the final port of discharge. If he refuses to load or unload at any port in the course of the voyage, and before it is up, according to the articles, he does so at the risk of forfeiting all his wages.[213]

The master and owners of a vessel are allowed ten days after the voyage is up, before a suit can be brought against them for the wages of the crew.[214] This is in order to give them time to settle all accounts and discover delinquencies. If the crew are retained to unload, then the ten days begin to run from the time the vessel is completely unloaded. But if the crew are not retained for this purpose, but are discharged and allowed to leave the vessel, then the ten days begin to run from the day they are discharged.[215]

Wages affected by Misconduct.—A seaman may forfeit his wages by gross misconduct; and if not forfeited, he may be liable to have a deduction made from them, for any damage caused to the owner by such misconduct. To create a forfeiture, his misbehavior must be gross and aggravated.[216] A single act of disobedience, or a single neglect of duty, will not deprive him of his wages.[217] A refusal to do duty in a moment of high excitement caused by punishment will not forfeit wages, unless followed by obstinate perseverance in such refusal.[218] Where drunkenness is habitual and gross, so as to create a general incapacity to perform duty, it is a ground of forfeiture of wages. But occasional acts of drunkenness, if the seaman in other respects performs his duty, will not deprive him of his wages.[219] In this, as in all cases of neglect, disobedience, or wilful misconduct, which do not create a forfeiture, a deduction may be made if the owner has suffered any loss.[220]

In one instance a forfeiture of one half of a seaman's wages was decreed, in consequence of his striking the master. He did not forfeit the whole, because he had been otherwise punished.[221]

If the seaman is imprisoned for misconduct, he does not forfeit the wages that accrued during his confinement, nor, what amounts to the same thing, is he bound to pay those of a person hired in his place during his imprisonment.[222]

If the crime of a seaman is against the laws of the United States, and too great for the master's authority to punish, he must be confined and brought home to trial. But this does not forfeit his wages, though any loss or damage to the owner may be deducted.[223]

In all cases of forfeiture of wages for misconduct, it is only the wages due at the time of the misconduct that are lost. The wages subsequently earned are not affected by any previous misbehavior.[224]

If a seaman or officer is evidently incapable of doing the duty he shipped for, he may be put upon other duty, and a reasonable deduction may be made from his wages.[225]

Wages affected by Imprisonment.—If a seaman is imprisoned by a warrant from a judge or justice of the peace, within the limits of the United States, for desertion or refusal to render himself on board, he is liable to pay the cost of his commitment and support in jail, as well as the wages of any person hired in his place.[226] So, if a seaman is imprisoned in a foreign port by the authorities of the place for a breach of their laws, the costs and loss to the owner may be deducted from his wages; but not so if he is imprisoned at the request of the master.[227] The right of the master to imprison at all is a doubtful one, and dangerous of exercise; and if he does resort to it, he can never charge the expenses to the seamen, nor deduct their wages during imprisonment.[228]

Wages affected by Capture.—If a neutral ship is captured, it is the right and duty of the seamen to remain by the vessel until the case is finally settled.[229] If she is liberated, they are then entitled to their wages for the whole voyage; and if freight is decreed, they are entitled to their wages for as much of the voyage as freight is given.[230] And if at any future time the owners recover the vessel, or her value, upon appeal or by treaty, they are liable for wages.[231]] In order to secure his wages in these cases, the seaman must remain by the vessel until her sale or condemnation, and the master cannot oblige him to take his discharge.[232] The condemnation or sale of the vessel puts an end to his contract. If he leaves before the condemnation or sale, with the master's consent, he does not lose his chance of recovering his wages.[233] Even if the vessel is condemned, and the owner never recovers the vessel or its value, yet the seaman is entitled to his wages up to the last port of delivery, and for half the time she lay there.[234]

Wages affected by Loss of Vessel or Interruption of Voyage.—If a vessel meets with a disaster, it is the duty of the crew to remain by her so long as they can do it with safety, and to exert themselves to the utmost of their ability to save as much as possible of the vessel and cargo.[235] If they abandon the vessel unnecessarily, they forfeit all their wages; and if their leaving was necessary and justifiable, yet they lose their wages except up to the last port of delivery and for half the time the vessel was lying there, or for so long as she was engaged with the outward cargo.[236] This rule may seem hard, but its object is to secure the services of the crew in case of a disaster. If by their exertions any parts of the vessel or cargo are saved, they are entitled to wages, and an extra sum for salvage.[237] If the vessel is abandoned and nothing is saved, they lose their wages, except up to the last port of delivery and for half the time the vessel was lying there.[238]

The general rule is, that a seaman's wages are secure to him whenever the vessel has earned any freight, whatever may afterwards happen. And a vessel earns freight at every port where she delivers any cargo. For the benefit of seamen a vessel is held to earn freight whenever she goes to a port under a contract for freight, though she go in ballast.[239] A seaman also secures his wages wherever the ship might have earned freight but for the agreement or other act of the owner.[240] If a vessel is on a trading voyage from port to port, and is lost on the homeward passage, wages would probably be allowed for the outward passage, and for half the time she was engaged in trading with the old or new cargoes; the trading and going from port to port being considered the same as though she had been lying in port all the time, and discharging and receiving cargo. Or else, wages would be given up to the last port at which she took in any return cargo, and for half the time she was lying there.[241]

These rules apply only to cases where the voyage is broken up by inevitable accidents, as by perils of the seas, capture, war or superior force. If the voyage is broken up by the fault of the seamen, they lose all their wages. If, on the other hand, the seamen are compelled to leave, or the voyage is broken up by the fault of the master or owner, as by cruel treatment, want of provisions, or the like, the crew would be justly entitled to wages for the whole voyage contracted for. If the vessel is sold, or the voyage altered or abandoned by the master or owner, not from inevitable necessity, but for their own interest and convenience, then the crew are entitled, by statute, to wages for all the time they were on board, and two months' extra pay.[242] And, by the general law, they would always receive some extra wages as a compensation for the loss of the voyage, and as a means of supporting themselves and procuring a passage home; or, perhaps, full wages for the voyage.[243]

Wages on an Illegal Voyage.—A seaman has no remedy for his wages upon an illegal voyage; as, for instance, in the slave trade.[244] Wages have, however, been allowed, where it was proved that the seaman was innocent of all knowledge of, or participation in, the illegal voyage.[245]

Wages affected by Death or Disability.—If a seaman dies during the voyage, wages are to be paid up to the time of his death.[246] A seaman is entitled to all his wages during sickness, and during any time he was disabled from performing duty. But if his sickness or disability is brought on by his own fault, as by vice or wilful misconduct, a deduction may be made for the loss of his services.[247] So, where the death of a seaman was caused by his own unjustifiable and wrongful acts, his wages were held forfeited.[248] If a seaman, at the time he ships, is laboring under a disease which incapacitates or is likely to incapacitate him during the voyage, and he conceals the same, no wages will be allowed him, or a deduction will be made from them, according to the nature of the case.[249] If, in consequence of sickness, a seaman is left at a foreign port, he is still entitled to wages for the whole voyage.[250]

CHAPTER XII.

SEAMEN—CONCLUDED.

Recovery of wages. Interest on wages. Salvage.

Recovery of Wages.—A seaman has a threefold remedy for his wages: first, against the master; secondly, against the owners; and, thirdly, against the ship itself and the freight earned.[251] He may pursue any one of these, or he may pursue them all at the same time in courts of admiralty. He has what is called a lien upon the ship for his wages; that is, he has a right, at any time, to seize the vessel by a process of law, and retain it until his claim is paid, or otherwise decided upon by the court. This lien does not cease upon the sailing of the ship on another voyage; and the vessel may be taken notwithstanding there is a new master and different owners.[252] A seaman does not lose his lien upon the ship by lapse of time. He may take the ship whenever he finds her; though he must not allow a long time to elapse if he has had any opportunity of enforcing his claim, lest it should be considered a stale demand. In common law courts a suit cannot be brought for wages after six years have expired since they became due. This is not the case in courts of admiralty.[253]

The lien of the seaman for wages takes precedence of every other lien or claim upon the vessel.[254] The seaman's wages must be first paid, even if they take up the whole value of the ship or freight. The wreck of a ship is bound for the wages, and the rule in admiralty is, that a seaman's claim on the ship is good so long as there is a plank of her left.[255] If, after capture and condemnation, the ship itself is not restored, but the owners are indemnified in money, the seaman's lien attaches to such proceeds.[256]

Besides this lien upon the ship, the seaman has also a lien upon the freight earned, and upon the cargo.[257] He may also sue the owner or master, or both, personally. They are, however, answerable personally only for the wages earned while the ship was in their own hands.[258] But a suit may be brought against the ship after she has changed owners.[259]

A seaman does not lose his lien upon the vessel by taking an order upon the owner.[260]

After a vessel is abandoned to the underwriters, they become liable for the seamen's wages, from the time of the abandonment.[261]

If, at the end of the voyage, the crew are discharged and not retained to unload, their wages are due immediately;[262] but they cannot sue in admiralty until ten days after the day of discharge.[263] If they are retained to unload, then the owner is allowed ten days from the time the cargo is fully discharged. If, however, the vessel is about to proceed to sea before the ten days will elapse, or before the cargo will be unloaded, the seaman may attach the vessel immediately.[264] If the owner retains his crew while the cargo is unloading, he must unload it within a reasonable time. Fifteen working days has frequently been held a reasonable time for unloading, and the ten days have been allowed to run from that time.[265]

The longest time allowed by law for unloading vessels is twenty days, if over 300 tons, and ten days, if under that tonnage. Probably seamen would not be held bound to the vessel for a longer time than is thus allowed by law for unloading.

Interest on Wages.—In suits for seamen's wages, interest is allowed from the time of the demand; and if no demand is proved, then from the time of the commencement of the suit.[266]

Salvage.—If a vessel is picked up at sea abandoned, or in distress, and any of the crew of the vessel which falls in with her go on board, and are the means of saving her, or of bringing her into port, they are entitled to salvage.[267] In this case, all the crew who are ready and willing to engage in the service are entitled to a share of the reward, although they may not have gone on board the wreck.[268] The reason is, that where all are ready to go, and a selection is made, there would be injustice and favoritism in allowing any one the privilege more than another. Besides, those who remain have an extra duty to perform in consequence of the others having gone on board the wreck.[269]

Crews are not ordinarily entitled to salvage for services performed on board their own vessel, whatever may have been their perils or hardships, or the gallantry of their services in saving ship and cargo;[270] for some degree of extra exertion to meet perils and accidents, is within the scope of a seaman's duty. In case of shipwreck, however, where, by the general law, wages are forfeited, the court will allow salvage, considering it as in the nature of wages due. In one instance salvage was refused to a part of a crew who rescued the ship from the rest who had mutinied; for this was held to be no more than their duty.[271]

Yet seamen may entitle themselves to salvage for services performed on board their own vessel, if clearly beyond the line of their regular duty; as, when the crew rise and rescue the vessel from the enemy after she has been taken.[272] So, where a ship was abandoned at sea, and one or two men voluntarily remained behind, and by great exertions brought her into port.[273] If an apprentice is a salvor, he, and not his master, is entitled to the salvage.[274] If one set of men go on board a wreck, but fall into distress and are relieved by others, they do not lose their claim for salvage, but each set of salvors shares according to the merit of its services. If the second set take advantage of the necessity and distress of the first salvors to impose terms upon them, as, that they shall give up all claim for salvage, such conditions will not be regarded by the court.[275]

Footnotes

[33] Do.

[50] Do.

[53] Do.

[110] 1 Sumner, 151; 3 do. 209. 4 Mason, 104.

[164] Do.

[218] Do.

[264] Do.