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CHANGE OF ARTICLES BY MERCHANT OR

pendent collateral bonds, or by directly incorporating some equivalent special agreement to that effect in the shipping articles themselves, - either device would be deemed, under all the authorities, alike derogatory to the principles of maritime law, and the mariner's personal privileges under that law. Such devices, therefore, would be tolerated or sanctioned by no admiralty court. They would, if not steadily reprobated, inflict needless wrong and mischief upon the confiding mariner, who, as such, needs and deserves perpetual protection against the tried skill and superior intelligence of mercantile men, whose eagerness for gain may sometimes prevail over their sense of right, though it is hoped but rarely.

The mariner's contract is an ancient instrument; gradually moulded into its present form by the complexities and exigencies of commercial pursuits. It should not, therefore, be rashly or recklessly tampered with, lucrandi causa: but must ever be permitted to remain, in the future as in the past, a nautical chart, invented specifically to define the termini of a voyage and prescribe its probable cost.

These two points, extent and expense of a voyage, should be approximately ascertained before sailing, and duly specified in the articles, that all engaged in the enterprise may, velis levatis, work with a will. The course of the voyage prescribed before leaving the port of departure, should be, in general, strictly adhered to. No voluntary deviation or departure is permissible, but by the mutual consent of the several parties. Accordingly, any considerable change, alteration, or deviation from the original enterprise, by one party, would partially release, if not totally absolve the other party,

VOYAGE BY MASTER ALIKE UNAVAILING.

263

from his contract stipulation. In such an event, should the master, of his own mere motion, and acting upon his own responsibility, materially modify and change the voyage, the mariner is at liberty, at his option, to stand by or abandon the master; obey or disobey; remain on board or quit the ship; and no neglect, refusal, or relinquishment shall thereby be deemed or construed to be an unlawful desertion, to which any of the penalties of forfeiture would justly attach.

It is not within the power or province of a master, as the owner's agent, to change at pleasure a specified voyage, without consulting the ship's company. What the mariner understandingly shipped for, that he is obliged to perform: whither he promised to go, thither he must proceed: but, in no case, can he be compelled, without new articles and upon modified terms, to begin or continue a new voyage.

In the matter of making his contract, the mariner is hedged in, surrounded, and shielded on all sides by the maritime law, and left free to act for himself. Neither the laws of Wisbuy, Oleron, the Hanse Towns, or the French or other codes, withhold or even temporarily withdraw from him this protection: and the modern improved legislation of England, as well as the ameliorated doctrines, now upheld in both the English and American admiralty tribunals, indicate how vigilant and unceasing are the judges of those courts in shielding and protecting the mariner from all wrong and imposition.

Indeed, good faith, on the part of the merchant or master, as the merchant's presumed agent, seems to be indispensable to uphold the mariner's contract in its integrity and entirety. Caprice, will, wanton change

264 GOOD FAITH INDESPENSABLE IN MERCHANT AND MASTER.

or any substantial variation or spontaneous deviation from the specified voyage, may dissolve this contract; thereby absolve the mariner from his contract obligation, and leave him free to quit, at pleasure, his ship. This doctrine is as ancient as the ordinance of 1681, and has been universally accepted and uninterruptedly administered in maritime courts of established authority.

"Liv. 2, tit. 7, Des Matelots," and art 4 in the Commentaire of Valin on the French ordinance, is as follows:

"Si, toutefois, après l'arrivée et décharge du vaisseau au port de sa destination, le mâitre ou patron, au lieu de faire son retour, le fréte ou charge pour aller ailleurs, le matelot pourra quitter si bon lui semble, s'il n'est autrement porté par son engagement."1

The 24th article of the laws of the Hanse Towns also relates to a contingent and arbitrary change of a voyage by the master; and it provides, that he cannot steer another than the intended course without the previous consent of the crew, or paying such compensation as the major part shall adjudge to be due them for such changing of the voyage.

These ancient codes aptly chronicle what the maritime law, in this respect, formerly was; while the English and American cases, herein cited, will fitly illustrate what the modern doctrine now is. And all legislation upon this subject is but a codification, or reënactment of the preexisting principles of maritime law, as found embodied in the foreign codes; but perhaps slightly

1 "If, however, subsequent to the arrival and discharge of the vessel at the port of destination, the master or skipper, instead of making his return-trip, freights or loads to go elsewhere, the sailor may leave at pleasure, unless it be otherwise prescribed in his contract."

SHIPPING ARTICLES OBLIGATORY ON ALL.

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modified, in some instances, to meet the present wants and changed condition of commercial pursuits in modern times. Commerce was originally a species of barter; the products and commodities in specie of one country being exchanged by ship transportation, for the products and commodities of another country. Afterward, as in the East India trade, the shipment. of silver dollars was the usual resort to procure from those climes their staple products and fabrics. Now, such is the course of trade and exchange, that the most valuable cargoes may be obtained from the most remote quarters, through bills of exchange, without a merchant's quitting his counting-room. All or nearly all may be accomplished by correspondence alone. Yet the instrumentalities for the employment, navigation, and preservation of the ship remain very much the same. There is the master to command and the mariner to obey; the voyage to be described and the wages to be specified; a contract to be signed and its terms to be complied with; and this contract if wholly reduced to writing, as it should be, is alike obligatory on master and mariner. Thus prepared, the contract is termed the shipping articles; and, as such, they were declared by 2 Geo. II., ch. 36, § 2, "binding and conclusive " upon the parties, in all cases where they shall have been framed to meet the ordinary exigencies of a sea-voyage; but not applicable to mariner's contracts of a special nature. The Minerva, 1 Hagg. 347.

The shipping articles are then primâ facie evidence touching and affecting the rights of all persons named therein. They are equally competent to decide controversies between owner and master; or mariner and owner or master. In Willard v. Dorr (3 Mason, 16'),

266 ANY DEVIATION JUSTIFIES LEAVING THE SHIP.

they were held to constitute a part of the ship's documents for the voyage. Parties are, accordingly, as much entitled to their production in court, upon notice, as they would be to the production of the ship's log-book, under like circumstances.

No stipulation, inserted in them, if it be prejudicial to the mariner's general rights or privileges, or contrary to the maritime law, will be allowed to stand, unless adequate provision is also made for suitable additional compensation in behalf of the mariner. Harden v. Gorden, 2 Mason, 541.

In Veacock v. McCall (Gilp. 305), it was held, as a general rule, that parole evidence was not admissible to vary this contract for wages.

Yet if, from accident or mistake, but without fraud, the shipping articles happen to be silent as to the amount of wages to be paid, either party may introduce testimony to supply such omission. Gilp. 452, Wickham v. Blight.

And it is incumbent upon the owner to explicitly declare the ports at which a voyage is to commence and terminate. Gilp. 219, McGee et al. v. Ship Moss.

Deviations, however, which proceed from accident or overruling authority, do not abrogate the owner's contract with the mariner. And, unless something may have been done to supersede the contract, the mariner, in England, is required to stay by the ship until the cargo is discharged. But spontaneous deviations of importance, practically dissolve the mariner's contract, and absolve him from his stipulated allegiance, under it, to the ship; thus entitling him to a discharge, and justifying his abandoning the vessel, without the imputation of either actual or constructive desertion. The Cambridge, 2 Hagg. 243.