CHAPTER XV.

OF THE SEAMEN.

SECTION I.

HOW SEAMEN ARE REGARDED BY THE COURTS.

THE common-law courts in some degree, and admiralty courts still more, regard seamen as peculiarly in need of, and entitled to, the protection of the courts, because peculiarly exposed to the wiles of sharpers and unable to take care of themselves.

The

1 Mr. Justice Story, in Harden v. Gordon, 2 Mason, 541, 555, states the law with great accuracy: "Every court should watch with jealousy any encroachment upon the rights of seamen, because they are unprotected and need counsel; because they are thoughtless and require indulgence; because they are credulous and complying, and are easily overreached. But courts of maritime law have been in the constant habit of extending towards them a peculiar protecting favor and guardianship. They are emphatically the wards of the admiralty; and, although not technically incapable of entering into a valid contract, they are treated in the same manner as courts of equity are accustomed to treat young heirs, dealing with their expectancies, wards with their guardians, and cestuis que trust with their trustees. The most rigid scrutiny is instituted into the terms of every contract in which they engage. If there is any undue inequality in the terms, any disproportion in the bargain, any sacrifice of rights on one side which are not compensated by extraordinary benefits on the other, the judicial interpretation of the transaction is, that the bargain is unjust and unreasonable, that advantage has been taken of the situation of the weaker party, and that pro tanto the bargain ought to be set aside as inequitable." In The Bark Rajah, 1 Sprague, 199, the owners of the vessel set up, in defence, to an action for wages, that the libellant had transferred his wages to third parties by an order which they had accepted. The court held on the evidence that the acceptance was subsequent to a direction by the libellant not to pay anything to the payees. The owners had also refused to take a bond of indemnity. It appeared that, on the arrival of the ship, the libellant was induced to go to the store of the payees, and was by them furnished with clothing to the value of $ 28.37, watch and chain $ 30.00, and $ 2 in cash, which, with a charge of fifty cents for boating, amounted to $60.87. In payment, the libellant gave them an order on the owners for the full amount of his wages, amounting to $154.73. The watch and chain were returned within a few

statutes of England and of this country contain many provisions in their behalf, and in some respects we carry them further than any other nation. Early in our legislation there was a prohibition against the shipping on board of our vessels of foreign seamen not naturalized. But this act was made to apply only to the subjects and citizens of countries which prohibit the employment in their vessels of our citizens; 2 and as these are very few, this circumstance and the necessities of commerce have caused this statute to be very seldom regarded or enforced, and in 1864 it was repealed.3

The repealing act, however, provides that officers of vessels of the United States shall in all cases be citizens of the United States. By act of 1866, seamen are prohibited wearing sheathknives, and it is made the duty of the master or other officer in command of the vessel, under a penalty, to inform every person offering to ship of the provisions of the law, and to require his compliance with it.

The act of 1803, c. 10,5 provides that no master of a vessel or any other person shall import or bring any negro, mulatto, or other person of color, not being a native, a citizen, or registered seaman of the United States, or seamen natives of countries beyond the Cape of Good Hope, into any port or place of the United States situated in any State which by law has prohibited the admission or importation of such person. This act, it is held, does not apply to colored seamen employed in navigating the vessel which brings them. In some of the southern States of this country, laws were formerly in force prohibiting the coming into the State of any free negro or colored person as seaman or passenger on any vessel, and providing for the imprisonment of such person during the stay of the vessel in the port.

days, but were refused. They were proved not to be worth more than $20.50. Held, that the libellant was entitled to rescind the contract as to the watch and chain, and was entitled to the full amount of his wages, deducting the value of the other articles, and money advanced by the payees of the order.

1 Act of March 3, 1831, c. 42, 2 U. S. Stats. at Large, 809.

• Ibid. § 10.

* Act of 1864, c. 170, 13 U. S. Stats. at Large, 201.

Ch. 286, 14 U. S. Stats. at Large, 304.

2 U. S. Stats. at Large, 205.

• The Brig Wilson v. The United States, 1 Brock. C. C. 423.

These laws have been held to be unconstitutional,1 but the seaman so imprisoned has no right of action against the master on account of such imprisonment, nor can the master deduct from his wages the expenses of the imprisonment.2

The most important points in which the statutes of the United States provide for the protection of our sailors are in relation to, 1st. The shipping articles; 2d. Wages; 3d. Provisions and subsistence; 4th. Seaworthiness of the ship; 5th. The care of seamen in sickness; 6th. The return of seamen to this country; 7th. Disobedience of seamen; 8th. Provisions in respect to desertion and discharge, either at the beginning or during the course of the voyage. The principal statutes on these subjects we shall give in our Appendix. Here we shall state generally the purport and effect of these provisions, and of the adjudications respecting them.

SECTION II.

OF THE SHIPPING ARTICLES.

Every master of a vessel bound from a port in the United States to any foreign port,3 or of any ship or vessel of the burden of fifty tons or upwards, bound from a port in one State to a port in any other than an adjoining State, is required to have shipping articles, under a penalty of twenty dollars for every person who does not sign, which must be signed by every seaman on board, and these must declare "the voyage or voyages, term or terms of time,

1

1 Opinion of Johnson, J., in Elkison v. Deliesseline, U. S. D. C. South Carolina, Appendix, p. 27, to Report No. 80, House of Representatives, 27th Congress, 3d session; The Cynosure, 1 Sprague, 88. A contrary ruling was made by Gilchrist, J., in the case of Roberts v. Yates, U. S. C. C. South Carolina, 16 Law Rep. 49. An appeal was taken to the Supreme Court of the United States, but was not prosecuted. 16 Law Rep. 178.

2 The Cynosure, supra.

A seaman shipping in a foreign port is not required by statute to sign articles. Gladding v. Constant, 1 Sprague, 73. A whaling voyage is not a foreign voyage within this act. The Atlantic, Abbott, Adm. 474; Montgomery v. Tyson, U. S. D. C. Mass. Lowell, J. See also Taber v. United States, 1 Story, C. C. 1.

* One suit should be brought for each penalty, and one count is sufficient. Wolverton v. Lacey, U. S. D. C. Ohio, 18 Law Rep. 672.

The courts

for which such seaman or mariner shall be shipped." interfere to protect a seaman against loose and indefinite language, or unfair or new and unusual stipulations; and wherever there is a doubt as to their meaning or obligation, the seaman has the benefit of the doubt. And a new clause in the shipping articles,

1 Act of July 20, 1790, c. 29, 1 U. S. Stats. at Large, 131. A general coasting and trading voyage, in which the vessel is trading at different ports, is within this act. The Crusader, Ware, 437. And it extends also to the lakes, and public navigable waters connecting the same. Wolverton v. Lacey, U. S. D. C. Ohio, 18 Law Rep. 672. The sixth section of the above act provides that the master shall produce the contract and log-book when required, otherwise parol evidence of their contents may be given. The first section of the Act of 1840, 5 U. S. Stats. at Large, 394, has been considered to imply that the owner must deposit the original articles with the collector of the port where the contract is made, and it has been suggested that this so far modifies the former act, that the master or owner, if not relieved from producing them at the call of the seaman, because, being in the custom-house, they are as much at the command of the seaman as of the owner, yet at least the seaman should give distinct and reasonable notice that he desires them. The Brig Osceola, Olcott, Adm. 450, 459. This case also decides that, in the absence of the shipping articles, the statement of the mariner in the libel is only evidence of what the master is obliged to put in the articles, namely," a declaration of the voyage or voyages, term or terms of time, for which the seaman or mariner shall be shipped." And also, that if the owners prove a reasonable excuse for not producing the articles, they may contradict by parol the statement of their contents by the mariner. See Piehl v. Balchen, Olcott, Adm. 24. The shipping articles are admissible as evidence of the terms of hire in an action brought by the master or his administrator against the owners, as well as in suits between the seamen and owners. Willard v. Dorr, 3 Mason, 161.

The leading cases on this point are The Juliana, 2 Dods. 504; Harden v. Gordon, 2 Mason, 541; Brown v. Lull, 2 Sumner, 443; Matern v. Gibbs, 1 Sprague, 158. In The Sch. Highlander, 1 Sprague, 510, Sprague, J., said: "Whenever an unusual clause is introduced into the shipping articles, impairing the rights of seamen, or imposing any additional duties or obligations on them, two conditions are required: 1st. That the seaman had the agreement so explained to him that he fully understood the meaning; and 2d. That a reasonable compensation was given him for the renunciation of the right, or for the new obligation assumed." See also Heard v. Rogers, 1 Sprague, 556; Mayshew v. Terry, 1 Sprague,

584.

See the Minerva, 1 Hagg. Adm. 347, 355; The Hoghton, 3 Hagg. Adm. 100, 112; Jansen v. The Heinrich, Crabbe, 226; Wope v. Hemenway, 1 Sprague, 300. In The Lanarkshire, 2 Spinks, Adm. 192, Dr. Lushington said: "In case of doubt, as the owners are much more competent to take care that the articles are clearly expressed than the mariners, I should be disposed to lean against a construction, the result of which would be to convict the seamen of desertion."

which is relied on to repel a claim for wages, should be specially pleaded. An agreement made under duress is not binding.2 If a voyage from one place to another is stated, and the words "and elsewhere" are added, these mean nothing, or only such further procedure by the vessel as fairly belongs to the voyage described; and this the law would permit without them.3 But a definite 1 Heard v. Rogers, 1 Sprague, 556.

Mayshew v. Terry, 1 Sprague, 584, and if the articles are signed under duress and protest, they are invalid. Stratton v. Babbage, U. S. D. C. Mass. 18 Law Rep. 94.

Brown v. Jones, 2 Gallis. 477. In an early case before Mr. Justice Winchester, Anonymous, 1 Hall Am. Law Journal, 209, the shipping articles were for a voyage from Baltimore to Curacoa, and elsewhere. It was held that this did not authorize a voyage from Baltimore to St. Domingo, and that the words "and elsewhere" must be construed either as void for uncertainty, since they did not contain any proper description of the terminus a quo and ad quem, as required by the act of Congress, or as subordinate to the principal voyage stated, and authorizing the ship in the progress of the voyage to pursue such course as might be necessary to accomplish the principal voyage, and this would be no more than was implied by the law itself. And in Ely v. Peck, 7 Conn. 239, a description of a voyage from New London to Oporto and elsewhere, was held to mean a voyage from New London to Oporto; and the words " and elsewhere" were rejected for uncertainty. See also Gifford v. Kollock, U. S. D. C. Mass. 19 Law Rep. 21; The Countess of Harcourt, 1 Hagg. Adm. 248; The Eliza, id. 182, 185; The Minerva, id. 347, 354; The George Home, id. 370, 374. In this last case it was decided that under an engagement to go "from London to Batavia in the East India seas, or elsewhere, and until the final arrival at any port or ports in Europe," the seamen were not bound, upon the arrival of the vessel at Cowes for orders, according to previous agreement between the owners and the master, to proceed on a further voyage to Rotterdam. See also The Westmorland, 1 W. Rob. 216, 225; Roberts v. Knights, 7 Allen, 449; Piehl v. Balchen, Olcott, Adm. 24. In Douglass v. Eyre, Gilpin, 147, it was held that the description of a voyage from Philadelphia to Gibraltar, other ports in Europe or South America, and back to Philadelphia, authorized a voyage from Gibraltar to South America, direct. Judge Hopkinson was also of the opinion, in the case of Magee v. The Moss, Gilpin, 219, that a voyage from Philadelphia to Buenos Ayres, thence to Havana, thence to Marseilles, thence to a port in South America, and thence back to Philadelphia, came within the description of a voyage "from Philadelphia to South America, or any other port or ports, backwards and forwards, when and where required, and back to Philadelphia." This proceeds upon the ground that, although the description be too broad to satisfy the act of Congress, yet if the master does under it only what the court thinks reasonable, the seaman cannot leave the ship. This construction is opposed by Judge Ware, in the case of The Crusader, Ware, 437.

And it is now provided, by the Act of July 20, 1840, ch. 48, § 10, 5 U. S. Stats.