Imágenes de páginas
PDF
EPUB

322

LOST WAGES, WHEN AND

and such decree would be carried into effect by the government or state becoming responsible for the value thereof; and the owners, on receiving such value, will be answerable to the mariners for wages; and, if not paid, the mariners' lien will legally attach to the proceeds.

In case of capture and recapture, the right to wages is only suspended; and on return to the home port, the mariner is remitted to his wages, his right to the same being thereby revived.

But in the Two Friends (4 Ch. Rob. 143), it was held, that recapture did not revive the right to wages of a mariner, who upon the capture of the vessel, had been taken out by the enemy, carried to France, and did not happen to be on board at the time of recapture.

So wages for the whole voyage cannot be recovered by a seaman, who is impressed into the king's service, out of a vessel on a voyage, unless it shall appear to have been done by the malicious acts of the master, or of those under his authority. The Jack Park, 4 Ch. Rob. 308.

Seamen, staying by a ship, when captured, at the master's request, recover their whole wages, if the ship be released; but if she be condemned, then they lose their wages. 2 Sum. 443, Brown v. Lull.

If the voyage be lost by a fraudulent or uncalled for deviation, then seamen are entitled to their full wages for the voyage. Bee, 173, Lindsey v. Ship S. Carolina.

In case of disaster, the mariner is entitled to his wages as far as the fragments saved will go towards it. 1 Hagg. 227, The Neptune.

While seamen remain on board, doing duty, they are entitled to wages. 1 Pet. Adm. 129, Boardman et al. v. Brig Elizabeth.

[blocks in formation]

Where seamen leave by reason of cruelty, they are entitled to wages for the voyage. Ibid. 193, Relf et al. v. Ship Maria.

Having thus reviewed the principal subjects and decisions touching the contract, right and loss or forfeiture of wages of mariners, the next chapter will treat especially of the competency of sailors and others as witnesses in the admiralty courts.

324

WHO COMPETENT TO TESTIFY IN ADMIRALTY.

CHAPTER XI.

WHAT PERSONS MAY BE WITNESSES IN ADMIRALTY.

WITHIN the past fifteen years, a great change and amelioration of the law in regard to the admissibility of witnesses, has been effected in the admiralty practice of the Federal courts, by the liberal legislation of the different States of the American Union.

Formerly the rule as to competency and interest, was as inflexible in the admiralty as in the common law courts. Interest alike operated as a disqualification in both tribunals. A departure from this rule of evidence, in any case, was permitted upon the ground of necessity or by reason of some other known, well established, and generally recognized exception.

Thus, salvors were "admitted ex necessitate as witnesses to all facts which are deemed peculiarly or exclusively within their knowledge; but to other facts, they are incompetent; on the general ground, that they are both parties and interested. The exception arises from the necessity of trusting to their testimony or being left without proof; and it is admitted no farther than this necessity exists." 3 Greenl. Ev. § 412. S

On the same principle, parties are admitted as witnesses in prize cases.

So generally, where the cause of action is established aliunde, and the loss is proved to have been occasioned

LAW OF MASSACHUSETTS AS TO COMPETENCY OF PARTIES. 325

by the fraud or tortious act of the defendant, nothing remaining to be shown except the value of the property lost, taken away, or destroyed, being incapable of proof by any other means, it may be ascertained by the oath of the plaintiff.

Such was the general rule, and such the character of the exceptions, when Mr. Greenleaf published, in 1853, his third volume on Evidence.

Three years afterward, (in 1856,) chapter 186 was passed by the legislature of Massachusetts, making parties admissible as witnesses in civil cases, and applicable to all cases, except where the original party was dead, or an executor or administrator was a party.

In 1859, on error before Judge Curtis, in the case of the United States v. Josiah Dunham et al. (21 L. Rep. 591), it was denied that the statute of Massachusetts was binding on the Federal courts, as being incompatible with § 31 of the United States judiciary act, passed in 1789; which section provides that "the mode of proof by oral testimony and examination of witnesses, in open court, shall be the same in all the courts of the United States; as well in the trial of causes in equity and admiralty and maritime jurisdiction, as of actions at common law."

Judge Curtis then said: "The purpose of this provision was, not to introduce a law of evidence respecting the competency of witnesses; but a mode of proceeding by examination, in open court, of such witnesses as should be competent under the appropriate rules of law; and to apply that mode to all the classes of cases over which the courts of the United States have jurisdiction." He considered it to be settled by the authority of the cases of McNeil v. Holbrook (12 Pet. 84), and

326

[ocr errors]

LEGISLATION OF CONGRESS.

Sims v. Hundley (6 How. 1), that the State laws of evidence are rules of decision in civil trials, at the common law, under § 34 of the act of 1789. See also 12 How. 361, United States v. Reed et al.; 1 Sprague, 486, The Ship William Jarvis; 1 Black, 430, Vance v. Campbell; ibid. 435, Haussknecht v. Claypool et al.; 2 ibid. 537, Wright v. Bales.

By § 34, Congress provided "that the laws of the several States, except when the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply."

Thereby and thereupon, the laws of the several States became rules of decision; but not to affect the remedy of parties; and in 10 Wheat. 24, Wayman v. Southard, the Supreme Court of the United States held, that the congressional provision did not apply to the process and practice of the court; it merely furnished a rule of decision, and was not intended to regulate the remedy.

But more recently, in 1862, July 16, by chapter 189, Congress went still further; and then enacted that "State laws are rules of decision as to the competency of witnesses in trials at the common law, equity, and admiralty."

And in July 1865 (vide vol. 12 of the U. S. Sts. at Large, p. 351), Congress made the further provision, "that in the courts of the United States, there shall be no exclusion of any witness on account of color, nor in any civil action, because he is a party, or interested in the issue tried."

Meanwhile, in passing the General Statutes in 1860, the Massachusetts legislature reënacted substantially

« AnteriorContinuar »