242 SALE, UNDER LEGAL NECESSITY, PROTECTS PURCHASER.

be but mocking a meritorious master and entrapping a fair purchaser?

On such an occasion, the extreme language of an eminent English judge might be opportunely and well repeated, "it is but a snare and mockery."

And good faith requires a master, on such occasions, invariably to conform to all the precautions just enumerated, as far as practicable.

In the succeeding chapter, the official position of a master will be viewed in another aspect. Hitherto, his relations to the owners, the vessel and cargo have been especially considered. But it now remains to discuss hereafter his duties in relation to the ship's company or crew and freight.

Accordingly, the next chapter will be devoted to a consideration of the master's rights and duties, as a disciplinarian, in reference to the mariner's; and the correlative rights and duties of the mariner, in relation respectively to the owner, the master, and to the vessel.'

1 The opinion in the Amelié (6 Wallace, 18), was given December, 1867, by Mr. Justice Davis. But the author had not seen it until October 29, 1868, after this chapter was in print; when he was gratified to find that the language of the court expressly confirmed the justice and propriety of his critical examination of the character and definition of the necessity which justified the master's resort to his implied power of sale.

Mr. Justice Davis (p. 27, ibid.) says: "The question is not whether it is expedient to break up a voyage and sell the ship, but whether there was a legal necessity to do it." And the same view was taken, in the argument to the court at Washington, in behalf of the libellants, by their counsel, who may be said to be unsurpassed if not unequalled for ability and experience in this branch of law.

In all other respects the decision of the Judge of the First Circuit is fully affirmed; and the case cannot fail to become leading and conclusive.

1. The mariner's contract.

2. The earning and payment of sailor's wages. 3. The forfeiture of their wages.

Seamen, as a class, are proverbially reckless, rash, and improvident; and as such, are deemed to be the peculiar favorites of admiralty; and are often designated as the "wards of admiralty courts.”

Inured, on shipboard, to much hardship, danger, and exposure, the mariner, in character, partakes largely of the boisterous element on which he sails, and his adopted mode of life. Too often necessitous, and in nautical phrase, "hard up," he is not seldom exposed, when ashore, to unfair practices, fraud, and imposition. Free, liberal, and generous with his limited amount of wages (commonly received at a single payment), credulous and unsuspicious, he is beset, on his first arrival, by sharp and sometimes unscrupulous harpies, who easily strip him.

On first landing, the sailor thinks but little, as an "old salt," of the stormy days and sleepless nights passed by him in earning his wages; at once forgets his long day's works and dark night vigils; and not unfrequently seeks and recklessly plunges into the lowest and least moral amusements. Failing to remember his

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great toil for so little pay, he is consequently unrestrained; and spends idly or squanders profusely all his wages when received, and perhaps shortly after being received, in many cases.

Still his legal rights are well defined and properly protected in admiralty. Those rights, their nature, extent, and value, are well understood by maritime courts, as are also the personal privileges of the seaman; and all are securely guarded by the principles of maritime jurisprudence which govern the proceedings of courts of admiralty.

1. The contract of the mariner with the merchant prescribes the duties of the mariner, in all his varied relations to the ship, to the owner, to the master; and in these three aspects, those duties are lucidly laid down in the maritime codes of Continental Europe, and pretty distinctly recognized, and generally sanctioned, both by English and American admiralty decisions and practice.

To the ship, the seaman must be faithful in navigat ing and preserving her.

To the owner, he must be honest, capable, and skillful on ship-board.

To the master, he must be obedient and prompt in the performance of his duties.

And these qualifications, when all are found to coexist, entitle the mariner unqualifiedly to his wages; unless, peradventure, by wreck or capture, both freight and wages are totally lost.

General misconduct or incompetency then alone work a forfeiture of wages.

If unable or indisposed to perform the special duty for which he shipped, the seaman is liable to a forfeiture of wages.

FOREIGN CODES AND ORDINANCES.

245

If guilty of embezzling the ship's stores or cargo, the seaman then may forfeit his wages, to the extent of the owner's or shipper's loss.

And if negligent, inattentive, or disobedient to the master, or habitually drunk, then may the mariner be discharged, disrated, or degraded, even with forfeiture of wages.

The laws of Wisbuy, those of the Hanse Towns, Oleron, and the French Ordinance of Louis XIV., embody the principles of maritime law which generally regulate the contract of the mariner and his claim under it to wages; unless it be where those ancient marine ordinances have been subsequently and expressly modified, qualified, extended, or abrogated even, by the local, municipal, or statute law of England or the United States.

In England, there is the High Court of Admiralty to take cognizance of these claims; in her colonies and dependencies, the vice-admiralty courts do the like; but both, however, are subject to be reviewed: formerly it was by the delegates, or commissioners of the Privy Council; but now, hearing upon appeal is by the judicial committee of the Privy Council.

In the United States, there are the District courts which take cognizance in admiralty of maritime matters; and whose decisions are subject to revision by the United States Circuit and Supreme courts, and may there be affirmed or reversed.

In the commercial codes, the portions more immediately applicable to the duties expected for wages, of the mariner, in wreck or peril, are article 15th of the laws of Wisbuy; 44th of the Hanse Towns; 3d of the

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EXTRACTS FROM CODES AND ORDINANCES.

laws of Oleron; and Book 3, tit. 4, art. 9, of the Ordinance of Louis XIV.

The first portion of the article from the laws of Wisbuy reads thus:

"The mariners are obliged, to the utmost of their power, to save and preserve the merchandise, and for doing it, ought to be paid their wages; but not otherwise."

Art. 44 of the Hanseatic code reads thus:

"If a ship is lost, the mariners are obliged to save as much of the goods as they can; and the master ought to reward and satisfy them for it, and pay the charge of their journey home: if the mariners refuse to assist the master, they shall have neither wages nor reward."

In like manner it is provided by art. 3d of the laws of Oleron, that the mariner, exerting himself to save from the ship, when wrecked, shall be reasonably rewarded.

And so Book 3, tit. 4, art. 9, of the Marine Ordinance of Louis XIV. provides that

"If some part of the ship be preserved, the seamen shall be paid the wages that are due to them, out of the wreck they have preserved; and if there be only goods saved, the seamen, even those that are engaged by the freight, shall be paid their wages by the master, proportionably to the freight he receives; and whatever way they be hired, they shall be over and above paid, for the time they are employed, in saving the wreck and goods."

So the Ordinance of Philip II. of Spain (1563) provided, "that seamen are bound to save from wreck what they can; and therefor are to be rewarded; if