272 CONFORMITY TO ACT OF CONGRESS BEST FOR MERCHANT.

maritime law, while he remains in service on board a ship, yet, in the absence of the customary shipping articles, he is not bound by the regulations, nor is he subject to the penalties and forfeitures contained in the acts of Congress upon this subject.

It is well and wise, therefore, for all engaged in foreign commerce in the United States, to comply invariably with the provisions of these acts of Congress. By so doing, they may avoid useless litigation; escape the possible imputation of striving to take advantage of seamen; and thus materially mitigate much mischievous and malevolent misconstruction. For, however unjustly it may be, the merchant has been charged with unworthily desiring to make money out of the blood, bones, health, and sometimes character of the mariner. Conformity to the well-known provisions of law in hiring seamen may, therefore, remove all occasion or pretext for such unfounded imputations and gratuitous misconstructions in reference to the acts of mercantile men, either omitted or committed.

Having thus, to some extent, treated of the utility, or rather inutility, of introducing into shipping articles unusual stipulations; the hazards to which such interpolated clauses tend to expose the parties; the matters upon which the shipping articles are deemed to be conclusive evidence, and how slightly seamen are legally held unless such papers are executed in the common form; it remains only to state what they usually contain, in addition to the description of the voyage and specification of the rate of wages, which they are required to contain. Ordinarily, there is inserted in the shipping articles the capacity in which the seaman ships to serve, and the time when he engages to render himself on board for the voyage.

USUAL CONTENTS OF SHIPPING ARTICLES.

273

These four particulars - namely: 1. Extent of the contemplated voyage; 2. Rate of wages to be paid per month or trip; 3. Capacity in which the seaman engages to serve; and 4. Time when he agrees to render himself on board are the usual specifications contained in the shipping articles: the two former are required by statute and are essential; but the two latter are optional, and are not expressly required by statute. These four are the customary stipulations in the articles; and all beyond them, unless it be the merely formal parts thereof, are wholly outside of what the law ever contemplated, the practice of courts requires, or the usage and understanding of merchants and mariners demand; and, therefore, may be deemed or decreed supererogatory or nugatory.

Beside the first section of the act of 1790, and § 1, ch. 62, 1803, there are also several clauses or sections in chapters 23 and 48 of 1840, of the acts of Congress, and especially sections 1, 2, 3, 4, 8, 19, to which particular reference should be made, in order to show

1. The agency of the collector of customs at the port of departure;

2. The agency of consuls or commercial agents, resident at the foreign port;

3. Mode of shipping seamen at foreign ports; and

4. The use, purpose and character of the descriptive list of the crew anywhere.

In the United States, the duties of collectors are partly fiscal, clerical, ministerial, and executive. The office of foreign consul is partly representative, judicial, and advisory. Collectors constitute the nation's land police to guard the treasury against fraud by smuggling or otherwise; secure the collection of import

274

COLLECTOR'S AND CONSUL'S DUTIES.

and other duties; enforce the revenue laws against the shipping interest, accord to merchants the proper facilities for clearance and entry of their ships, assure to seamen safe restoration to their homes, by giving them suitable protective papers, and taking from masters and owners certified descriptive lists of the whole crew or ship's company.

Consuls are resident representative agents abroad of the national government; appointed to take especial care of its commercial rights and privileges and the mercantile interests of its citizens; secure for seamen immunity from personal wrongs and oppression, by relieving them when in distress and protecting them from the effects of false imprisonment and illegal discharge in distant lands and other ill-treatment.

It has already appeared by § 1, act 1790, that one of the first duties, before sailing on a foreign voyage, is to provide shipping articles and have them duly signed.

By 1, ch. 62, act 1803, the master is required, before a clearance is granted, to deposit with the collector a sworn descriptive list of the crew. There upon, the master is to obtain of the collector a certified copy of this list, and give bond that he will exhibit the same to the first boarding officer, on his return to the United States; whose duty it is to ascertain, on boarding, that all the men named in the list are on board, and so report to the collector. If the vessel do not return to the same port, then the list, exhibited by the master, should be sent by the collector of the port of arrival to the collector of the port whence the vessel sailed, for the inspection and approbation of the latter.

USE OF COPY OF ARTICLES AND LIST OF CREW. 275

By § 2, ch. 48, act 1840, it is required that the owners shall procure from the collector a certified copy of the shipping articles, containing the names of the crew, to be taken to sea with the vessel. Beside being certified to be true, this copy must also be written in one uniform handwriting, and without erasures or interlineations. And this, together with a fair, uniform copy of the descriptive list, which the master is required to procure from the collector, shall be deemed the documents in which is contained the conditions of the contract with the crew as to their service, wages, voyage, and all other things; and are to be exhibited by the master to any consul or other commercial agent of the United States, whenever, in any foreign port, such officer may desire them or either of them, for the purpose of ascertaining the contract rights and duties of such American seamen as may make application to him for consular aid or assistance. § 2, ch. 48, act 1840.

Neglect to take such documents, when proceeding on a voyage, or refusal to produce them in a foreign port when properly required so to do, will render a master liable in damages to all persons who may thereby suffer any injury; and also subject him to a penalty of one hundred dollars, which may be recovered by any person, who may sue for the same in any court of the United States, where such master may reside or be found. Ibid. 19.

And by the fourth section of the same act, it is provided and declared to be a rule of judicial construction, that all interlineations, erasures, or writing in a handwriting different from that in which such copies were originally made, are to be deemed and taken to be fraudulent alterations; and not to be regarded, unless

276

MODE OF SHIPPING SEAMEN ABROAD,

they shall be satisfactorily explained in a manner consistent with innocent purposes and the standing provisions of the law which are enacted to guard the seaman's rights and privileges.

Sometimes, by reason of desertion, death, impressment or other cause, in a foreign port, a vessel may become short-handed. In that case the master may be under the necessity of recruiting; and then the value and utility of the certified copies of list and articles will be made manifest; as all regular action to this end, by the master, must be made by direct communication through the resident consul or commercial agent. The master's first duty, in shipping seamen in a foreign port, will be to exhibit copies of the usual shipping papers to the consular agent.

Accordingly, by the eighth section of the same act, it is substantially provided, that whenever a master ships a seaman in a foreign port, he should immediately exhibit to the consul the list of the crew and the shipping articles; or, if there be no consul, then to the person who shall be in the discharge of the duties of the office at that port; which officer shall, thereupon, make the proper entries in these documents, setting forth the contract and giving a description of the person of the seaman. This being done, the master would be as much bound to return such seaman, shipped abroad, as he would be to return those seamen who had previously been shipped at the port of departure. In legal effect, therefore, the bond of the master, given at the home port for the return of seamen, may be deemed to include also any seaman shipped at a foreign port; provided that the master has proceeded circumspectly and conformed to the provisions of the law, in first exhibit