IN BONDS OR SHIPPING ARTICLES.

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ed in the form of renunciations of this right, obtained from the mariners, without any consideration whatever advanced for this surrender. The first form, in which it was attempted, was in taking from them simultaneous bonds to that effect, at the execution of the usual contract. And, if the courts had supported these collateral instruments, the effect might have been this: that seamen might contract for a voyage of circumnavigation round the globe, might deliver cargoes at ten different ports, at each of which freight was earned by the owner, and then, if the ship had the misfortune of being lost, in her return home, upon the Goodwin Sands, they were to be turned adrift, if they escaped, without a single penny to face the debts which the necessary subsistence of their families had incurred during their three years' absence, on a service of fatigue and danger to themselves, though of great emolument to their owner."

As it was conceived that great misapprehension had prevailed upon the subject, Lord Stowell then stated a few leading cases to show that all British courts have concurred in discountenancing that attempt. He then refers to Buck v. Rawlinson, supra; Edwards v. Child, 2 Vernon, 728; Bell, Law of Scotland, vol. 1, p. 515; ibid. the case of Ross v. Glassford; Appleby v. Dodd, 8 East, 299 & 303; Edward v. East India Co., 2 Vernon, 210; and analyses and comments upon the judicial expositions respectively of Lord Somers, Chief Justices Holt and Abbott, Mr. Justice Lawrence and Lord Ellenborough. He then observes: "The present question is, therefore, as far as I know, untouched; and this court is called upon, for the first time, to sanction this covenant in the contract, where it has no peculiar policy to support it, but stands upon the sole ground of ousting

258

LORD STOWELL REJECTS UNUSUAL CLAUSES;

the general law, to the dishérison of the mariners of this country. I am not to forget the high authorities under which it has been uniformly held, that such a covenant dehors the articles, but executed at the very same time, and for the very same purpose, and in the very same terms, and by the very same parties, was unreasonable and unjust, and to be frowned upon by the law. . . . Does it become more reasonable and more just by being incorporated in the articles? How this might be considered in a court of common law, I cannot presume to predict.

"A court of law works its way to short issues, and confines its views to them. A court of equity takes a more comprehensive view, and looks to every connected circumstance that ought to influence its determination upon the real justice of the case. This court (the Admiralty) does not claim the character of a court of general equity; but it is bound, by its commission and constitution, to determine the cases submitted to its cognizance upon equitable principles, and according to the rules of natural justice.

"There are those who perhaps might lament, if this humble class of suitors were compelled to a pilgrimage through a second court. This court is not disposed to impose that burden upon them; it will, as far as it can, protect these illiterate and inexperienced persons against their own ignorance and imprudence, and I confess I feel disposed to do so more in the case of mere articles than in the case of articles and bonds."

He concludes substantially as follows:-"I shall say no more than that this is the first court to which this covenant has been directly presented; the facts of the case are such as cannot recommend it, I think, to any

ALSO THE U. S. DISTRICT COURT IN MASSACHUSETTS. 259

court upon any discussion. But at any rate, I will not be the first judge on record who shall give it a sanction. I, therefore, reject this article of allegation; and shall of course proceed upon the summary petition; and, if it be duly supported by proof, shall feel myself bound by law, authority, and justice, to pronounce for the wages on the outward voyages."

In this manner, in England, were the first formal attempts to overreach, circumvent, and defraud, by skill and craft, the reckless but confiding mariner, stigmatized and checked. And it would seem probable that all such devices attempted in this country would be alike reprobated, particularly in the Massachusetts District of the First United States Circuit.

Indeed, it is quite certain from the published reports, that irregular shipping papers will find no favor in our admiralty courts; but, on the contrary, that any attempted imposition upon the mariner, in regard either to the voyage itself, or its terms, nature, extent, and continuance, will not only be discountenanced, but judicially frowned upon and rebuked. The cases of this description must necessarily be rare indeed. In England, there is a custom in the Baltic trade, to withhold from the seaman one half of his wages during such time as the vessel may be detained by ice in that sea, if she be compelled to winter there. And in the case of the Hoghton, (3 Hagg. 100), Sir John Nicholl, in 1833, upheld this usage, and allowed but one half wages for four months to the libeling seaman; but did not impose costs. With this exception, all the cases hitherto cited are in complete harmony, from the Juliana to the Brookline.

A recent case, reported in the Boston "Daily Adver

260

A DECISION BY JUDGE LOWELL.

tiser" of December 28th, 1867, indicates the probable convictions of the present able and learned incumbent of the District Court of Massachusetts. The report is doubtless incomplete; and does not, therefore, fully present the technical defensive allegation most to be relied upon by the owners against the mariner's claims. Conjecture as to the precise state of the pleadings is unsafe, as both parties offered parole evidence to prove the terms of the voyage; from which it may be inferred, that the shipping articles were either defective in description or an entire misdescription of the voyage.

The libellants allege it was to be a six months voy. age from Boston to one of the Cape de Verd Islands, thence to Africa and back to the United States. The owners of the schooner Ella Franklin contended that their vessel was to proceed to Goree, Africa, as tender to another of their vessels; there to be sold, and the crew to return in the other vessel; and, as respondents, offered evidence to show this, and that the libellants were so informed at the time of shipping.

When the Ella Franklin arrived at one of the Cape de Verd Islands, two of the libellants were compelled to leave, and go on board the barque Warren White, against their consent; where, on refusing duty, they were put on bread and water, and kept upon that diet, until the barque arrived at Bathurst.

At Bathurst the two were discharged by the consul as having been illegally shipped. When the schooner arrived at Bathurst, another seaman was dismissed; and neither of the three men were allowed to remain with the schooner, though all desired so to do; but all were discharged there, in a foreign port, without their consent. It did not appear, from the report, that the schooner was

WRONGFUL DISCHARGE. DEFECTIVE ARTICLES. 261

sold. But the libellants declined to ship and return in the barque to the United States, though that privilege was proffered them. They were sent home by the consul, some weeks after. The three seamen sued the owners of the schooner for their wages, from the time of shipping till their return; and two of them sued also for damages for their illegal transfer to, and illtreatment on board of the barque. The names of the parties to the suit are, J. Collins et al. libts. v. F. C. Butman et al. respts. It was held: 1. That the voyage was not legally described; 2. That all the seamen were unlawfully discharged at Bathurst; 3. That the transfer of two of them was illegal and so justified their refusing duty. And, in giving judgment, Judge Lowell decreed full wages to the three libellants, without deduction; and to the two transferred, $2 additional per day for such time as they were kept involuntarily on board the barque.

This case is an extreme one in its principal facts and features, but the result well sustains the doctrine in the text; showing strongly the indulgent and paternal protection which, in admiralty, must ever surround the mariner. Such cases are, indeed, of rare occurrence; and not likely to be often repeated, after this decision of Judge Lowell.

Thus it is manifest that, in all cases, the admiralty courts will judicially interpose to protect the mariner against fraud or imposition. No scheme, however well devised for such purpose, will, by these courts, be sanctioned or encouraged. Whether the contrivance be to impair, abridge, or take away the mariner's general right to wages, or simply to suspend the payment thereof, through the instrumentality of special inde