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MODE OF PROCEDURE IN THE UNITED STATES. 247

they do not exert themselves, they forfeit both wages and reward."

In these extracts are contained the doctrines.of the foreign ordinances, regulating, in cases of wreck, the title of seamen to wages, before those codes were fully incorporated or judicially adopted into the proceedings, and thus became part and parcel of the established practice of admiralty courts in England.

In the United States, the 14th of the rules adopted in 1845, regulates the mode of procedure in admiralty, and is as follows:

“XIV. In all suits for mariner's wages, the libellant may proceed against the ship, freight, and master; or against the ship and freight, or against the owner, or master alone in personam."

A large class of cases are reported in the United States, explaining and settling the doctrines relating to the mariner's contract. And as these cases preoccupy all the ground, and fully discuss all the commercial codes of Continental Europe, as well as the maritime and admiralty cases and decisions in England, I shall content myself with a reference to and brief abstract of the American cases, with an occasional reference to some leading English cases and the doctrines there expounded.

In the United States, the Acts of Congress of 1790 and 1840, are as full and minute as the English Acts of Parliament, which now are or have been in force in Great Britain. In each country, the mariner's contract is required to be in writing; the voyage to be definitely specified, the rate of wages agreed upon, before the mariner is induced or permitted even to sign the shipping articles. Under this contract, the mariner agrees

248

PROVISIONS FOR A WRITTEN CONTRACT.

to perform certain service, and the performance of that service generates his legal title to wages.

In the United States, an omission to reduce the contract to writing, or get the mariner's signature to the shipping articles before sailing, is made penal by act of Congress; the master subjected to a penalty of $20; and the owners made liable to pay the highest rate of wages, known to have been paid within three months prior to the voyage.

Written contracts may therefore be deemed indispensable. They are easily procured at the stationers' in all sea-ports; and well trained merchants usually keep themselves well supplied with the proper forms for such purposes. So the penalties for non-compliance with the requirements of the statute, in regard to shipping articles, or written contracts with seamen, are seldom incurred; and there never should exist any occasion for enforcing those statute penalties. If the master or merchant be, in this respect, blamable, either from accident or negligence, prompt reparation ought, voluntarily, to be made to the seaman, without compelling him to resort to proceedings in an admiralty court, or otherwise invoking the aid of a district attorney or other government official.

Keeping steadily, then, in view, the explicit directions of the statutes of 1790 and 1840 in regard to the inception and fulfillment of the contract as therein re-. quired to be made and executed, it is obvious that a proper attention to the terms of those enactments, and a fair and just interpretation of their various provisions, would really have rendered some of the judicial determinations in this respect quite unnecessary. medicine chest is required by the act of Congress,

A

ITS USUAL STIPULATIONS.

249

July 20th, 1790, for every vessel of one hundred and fifty tons; and, in default of having such chest so provided, and newly supplied with fresh medicines at least once in every year, the master shall be liable to provide and pay for all such advice, medicine, or attendance of physicians as any of the crew shall stand in need of, in case of sickness, at every place where the ship may touch, during the voyage, without any deduction from the wages of such sick seaman.

And this plain provision of law has given occasion for elaborate discussion, in the case of Harden v. Gordon (2 Mason, 557), which has been deemed a leading case, and is frequently cited for its enlarged and liberal views and ample learning.

As to the contract entered into by all mariners before going on a voyage, its nature, force, and effect have been often the subject of judicial consideration and construction. The mariner ships to perform a specified service. He thereby engages that he is competent to perform the understood duties of the grade for which he contracts. And if he be so, is willing, and actually performs those duties, he is justly entitled to the compensation for which he stipulated. Performance of his promised service is his legal foundation and title to wages. Numerous dicta and some dogmas may be found in the books. These have heretofore prevailed in the courts, making seamen's claims to wages to depend on the contingency of earning freight. But in England this notion is exploded, both by its courts and legislature; while, in this country, if Congress do not expressly interfere, a similar fatality is possible, perhaps

sure.

Many authorities in both countries are worthy of

250

AUTHORITIES RELATING TO THE CONTRACT.

attention. Some of which, on the subject of the mariner's contract, I will now cite. Bee, 48, The Atlanta; ibid. 423, McCullock v. Lethe; ibid. 424, Shaw v. Same; 1 Pet. Adm. 233, The New Jersey; 2 ibid. 268, Black v. The Louisiana; Abbott Sh. 714; Ware, 437, The Crusader; 5 Ch. Rob. 14, The Frederick; 1 Pet. Adm. 212, The Regulus; Ware, 83, Turner's case; Daveis, 121, The Dawn; 1 Hagg. 182, The Eliza; ibid. 188, The Jane and Matilda; ibid. 249, The Countess Harcourt; ibid. 347, The Minerva; ibid. 370, The George Home; ibid. 378, The Porcupine; 2 ibid. 243, The Cambridge; 3 ibid. 376, The Prince George; 2 ibid. 79, The Harvey; 1 Mason, 443, United States v. Hamilton; 2 ibid. 541, Harden v. Gordon; 3 ibid. 161, Willard v. Dorr; 2 Dods. 104, The Lord Hobart; 1 Sum. 380, Cloutman v. Tunison; ibid. 384, Macomber v. Thompson; 3 ibid. 443, Brown v. Lull; 1 Story, 1-7, Taber v. United States; Gilp. 83, The Nimrod; ibid. 147, Douglas v. Eyre; ibid. 219, The Ship Moss; ibid. 329, Veacock v. McCall; ibid. 452, Wickham v. Blight; ibid. 514, Wilson v. Ohio; ibid. 516, The Superior; ibid. 524–34, Thackeray et al. v. The Farmer; 4 Esp. 182, Wilkinson v. Fraser; 6 Mass. 300, Mayo v. Harding; 2 Ch. Rob. 241, The Isabella; 14 Johns. 260, Bartlett v. Wyman; 3 Pick. 435, Baxter v. Rodman; 19 ibid. 496, Baker v. Corey; 1 Abb. Rep. 344, Ringold v. Crocker; ibid. 451, The Atlantic; ibid. 270, The Mary Ann; Olc. 232, The Schooner Eagle; ibid. 396, The Steamboat Hudson; Swab. 415, The Glentanner; ibid. 346, The William; ibid. 362, The Milford; Lush. 44, The Albert Crosby; ibid. 128, The Union; ibid. 285, The Hamett; ibid. 566, The Atlantic; Brown & Lush. 355, The Nonpareil; 1 Eng. Adm. & Eccl. Rep. 309, The Philippine.

TO THE EARNING OF WAGES.

251

Touching the earning and payment of mariner's wages, the English and American authorities are: 1 Pet. Adm. 117, Hart v. Littlejohn; ibid. 128, The Brig Elizabeth; ibid. 128, The Hope; ibid. 247, Atkyns v. Burrows; ibid. 250, Mitchell v. Orozimbo; ibid. 255 n. The Happy Return; ibid. 219, The Washington; ibid. 132, Watson v. The Rose; ibid. 123, Howland v. The Lavonia; ibid. 142, Walton v. The Neptune; ibid. 155, Scott v. The Greenwich; ibid. 157, Jackson v. Sims; ibid. 215, Lady Walterstoff; 2 ibid. 384 (446), Singstrom v. The Hazard; ibid. 411, The Cyrus; Edw. 239, The Courteny; 3 Esp. 71, Sigard v. Roberts; Bee, 173, S. Carolina; ibid. 134, The Fair American; Ware, 91, Thatcher v. Steele; ibid. 109, Sherwood v. McIntosh; ibid. 454, The Mary; 1 Mason, 45, Emerson v. Howland; Ware, 65, Hutchinson v. Coombs; ibid. 9, The Nimrod; ibid. 485, The Dawn; 1 Gall. 181, The Saratoga; 2 ibid. 56, ex parte Giddings; Bee, 414, The Tristram Shandy; ibid. 441, The Ship Hazard; 2 Pet. Adm. 403, The Gloucester; 2 Mason, 319, The Two Catherines; 4 ibid. 541, Townsend v. Orne; 2 Mass. 39, Brooks v. Dorr; 9 ibid. 404, Lemon v. Walker; 10 ibid. 79, Wilson v. Bragdon; 11 ibid. 545, Hooper v. Perley; 12 ibid. 73, Arfredson v. Ladd; 14 ibid. 66, Spofford v. Dodge; 3 Kent Com. 189, et seq.; Bee, 255, Carey v. The Kitty; 12 Mass. 576, Luscomb v. Prince; 3 Esp. N. P. 36, Bergstrom v. Mills; 4 East, 43, Pratt v. Cuff; ibid. 546, Thompson v. Beale; ibid. 566, Johnson v. Broderick; 1 Hagg. 59, The Castilla; ibid. 186, The Eliza; 2 ibid. 158, The Malta; 3 ibid. 196, The Lady Durham; 1 Peters, 207, Giles v. The Cynthia; 2 ibid. 261, Wolf v. The Oder; 5 ibid. 675, Shepard v. Taylor; 1 Pet. C. C. 142, Girard v. Ware; 9 Johns. 138, Ward v. Ames; 12 ibid. 143,

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